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  • The former wife appealed against an order consequent upon a financial remedies hearing which had occupied several days in November and December 2020, following which the judge had circulated a draft reserved judgment which itself generated a request for clarification, further email submissions and ultimately a slightly revised approved judgment. The three live grounds of appeal were that the judge had been wrong to make no provision for the wife’s liabilities, had failed to step back and cross-check his award to ensure fairness, and had wrongly imposed a s 28(1A) bar. The latter ground of appeal was dismissed: the actual order made was within the available discretionary outcomes, and justifiable on the evidence. However, in the view of HHJ Mark Rogers, the practical impact of the judge’s exclusion of the costs liability had been to reduce the capital available to the wife for housing by about 37%, contrary to his own assessment of her housing need. The judge’s approach to the calculation of the correct needs-based lump sum had been wrong in law. As to the cross-check, failure to carry one out was not strictly capable of being a ground of appeal, as it was the ultimate decision that was under review, but, in the view of HHJ Mark Rogers, the judge’s failure to do so was clear and illustrated his failure to engage with the true discretionary process. The appeal was allowed and the lump sum order of £475,000 was set aside. The matter was not remitted; HHJ Mark Rogers assessed the appropriate lump sum award at £600,000. He directed that the husband should pay the wife’s costs of the appeal, the quantum of which was determined in a summary assessment, at the joint request of the parties. Judgment, 31/08/2021, free
  • This was a second appeal in a financial remedy case described by the court as an exercise in self-destruction, the costs having become so disproportionate relative to the assets. The judge at first instance had made an order providing the husband with funds sufficient to buy a modest property and to pay most of his costs. The wife had appealed on the basis that the husband should not have been awarded anything at all and should bear his own costs. The appeal had been allowed, and the direct payment referable to the husband's costs had been substituted with a charge for the same sum to be secured on the property he would in due course purchase. The husband now appealed against the imposition of the charge. In King LJ's judgment, in cases where an order substantially in excess of the sum required to meet a party's assessed needs was sought in order to settle their outstanding costs (or debts referrable to costs), the judge should: (i) consider whether in any event the case was one in which an order for costs under FPR 28(6) and (7) in particular by reference to FPR PD 28 para 4.4 should be made; and (ii) have firmly in mind what the order they proposed to make by way of additional lump sum to meet a party's costs would represent if expressed in terms of an order for costs. This would act as a cross check of the fairness of the proposed order. In her view the order originally made by the judge, which allowed the parties to achieve a clean break, could not be regarded as being outside his wide discretion such that it was appropriate for his order to be altered on appeal. Moylan and Newey LJJ agreed. The appeal against the imposition of a charge on the property the husband hoped to buy was allowed. Judgment, 31/07/2021, free
  • The parties married in 2004, separated in 2015 and the decree absolute of divorce was granted in 2019. The three children lived with the mother and had only indirect contact with the father. DJ Graham Keating found that their housing needs were being met, albeit imperfectly, by living in the former matrimonial home (FMH). He considered whether the income disparities and needs justified spousal maintenance. Although the mother had not been transparent about her resources, and the parties' litigation history strongly suggested that a clean break and the avoidance of subsequent litigation was very desirable, the mother would be responsible for the care of the children, for housing, feeding, schooling and clothing them. The district judge decided to grant the mother a 48.9% share of the father's 1995 pension, made no order for spousal maintenance, and left the beneficial interest of two properties with the mother and one with the father. He ordered the sale of the FMH, but this would not take effect provided that the mother secured the father's release from the mortgage, and paid him all costs awards from these proceedings, plus interest. If that were done within two years, the FMH need not be sold and the father would transfer his legal and beneficial interest in it to her. The father sought his costs of the FDR, and relied on a schedule of costs totalling £8,468. The district judge ordered that the mother should pay £7,388. The father also claimed for costs for the remainder of the proceedings. The district judge, quoting Mostyn J in OG v AG [2020] EWFC 52 ("if, once the financial landscape is clear, you do not openly negotiate reasonably, then you will likely suffer a penalty in costs") found that each of the factors in FPR 28.3(7)(a), (b), (d) and (e) justified an award of costs in favour of the father, the mother's evidence having been "elusive and evasive" as to her income. The mother was ordered to pay £9,000 towards the father's costs since the FDR. Judgment, 04/07/2021, free
  • The application of the former wife for a financial remedy order arising from her marriage to her former husband. Both were UK nationals, who had met in 2005, married in 2011 and separated in 2019. They had lived in the United Arab Emirates for the duration of the marriage, and their child had been born there in 2015. The overall position was a joint deficit approaching £60,000; the only significant asset was a flat in Wales vested in the husband’s name. As well as the relevant factors in s 25 of the Matrimonial Causes Act 1973, Mr Recorder Salter bore in mind that the court's overall objective was to achieve a fair outcome. There was no place for discrimination between the husband and the wife and their respective roles. However, there were two primary factors which justified a departure from equality in this case: that it was a needs case, and the prior agreement reached between the parties. Over and above the amounts contained in the prior agreement – including an annual lump sum he reduced to £5,000 in view of the wife's move to England, where living costs were lower – he ordered that the husband should pay the wife a lump sum of £12,500 within 56 days: £8,750 for six months’ rent, £2,250 for furniture, £1,500 towards the transportation of their pets to England. He would also have to pay £7,000 towards a car and driving lessons, and periodical payments in relation to the child of £1,000 per month. Mr Recorder Salter described the level of costs in the proceedings as "ruinous to the parties" and "utterly disproportionate to the assets involved". Issues had been pursued which did not merit any significant expenditure of costs, and warnings had gone ignored. He concluded that the wife should make a contribution of £10,000 towards the husband’s costs. Judgment, 19/04/2021, free
  • The wife appealed from an order that had reduced the lump sum awarded to the husband from £814,000 to £733,650 (£630,000 and £550,000 net after payment of capital gains tax) and reduced the husband's pension share from 48.6% to 34%. The wife had retained 73% of the non-pension assets plus the balance of her pensions. Both the district judge and the judge had considered that a significant departure from an equal sharing of the matrimonial assets was justified. Following receipt of the judge's judgment both the husband and the wife had sent what were said to be requests for clarification. The judge concluded that these requests were in fact an impermissible "critique of the judgment and an attempt at further argument". In Moylan LJ's view, the judge had clearly decided that it was too late for further evidence to be adduced, and this decision was one which had been open to him and it had not been shown to be wrong. Parties should not expect a judge to permit further evidence to be adduced at such a late stage of the proceedings, particularly following an appeal. Lewison and Nugee LJ agreed, and the wife's appeal was dismissed. Judgment, 01/02/2021, free

Latest know-how

  • The husband appealed a final financial remedy order made by Cohen J. The sole ground of appeal was that the judge failed to assess or take into account the husband’s needs, and only considered the wife’s needs. Case note, 20/10/2020, free
  • In a tweet: Consideration of “substantial” in leave for Part II MFPA 1984 proceedings. Case note, 18/10/2019, members only
  • In a tweet: Needs based order appropriate if pre-nuptial agreement fails to provide for reasonable needs. Case note, 02/10/2019, members only
  • In a tweet: The courts’ poor service - which had effectively forced the parties into arbitration – did not dilute the magnetic importance of the arbitration agreement. Case note, 04/07/2019, members only
  • A case summary of Vasilyeva v Shemyakin [2019] EWHC 932 (Fam), by a Pupil at 1 Hare Court. Case note, 10/05/2019, members only

Latest training

  • Joe Switalski, of 29 Bedford Row, reviews the current case law and judicial thinking surrounding 'short marriages' in financial remedy proceedings. Recorded 19 March 2018. Webcast, 21/03/2018, members only
  • Alexis Campbell QC and Charlotte Trace, of 29 Bedford Row, review the key financial remedy cases and themes from the past 12 months and look at how they will affect judicial thinking and your own cases in the year to come. Webcast, 16/03/2018, members only
  • Matthew Long, from 29 Bedford Row, reviews the caselaw regarding maintenance and variation of maintenance Webcast, 28/09/2017, members only
  • Recording of webinar first broadcast on 8 February 2017 Webcast, 10/02/2017, members only

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