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- The former husband appealed against an order committing him to prison for six weeks unless he paid the sum of £50,000 to his former wife, as previously ordered by Mostyn J, by way of maintenance. The order was made under s 5 of the Debtors Act 1869 and the judgment summons procedure in Order 28 of the County Court Rules 1984. Underhill LJ noted that a judgment debtor can only be committed if the creditor proves to the criminal standard that the debtor had the means to pay the sum in question at the relevant date, but had refused or neglected to do so. The former husband appealed on the ground that the judge could not have been satisfied beyond all reasonable doubt that he had the sum in question. Underhill LJ did not accept that submission. There was no rule that the only way in which the judge could be sure of that point was by explicit evidence given at the time of the committal hearing. What was required would depend on all the circumstances of the case, including such inferences as it was proper for the judge to draw from the evidence that he did hear, which might include an inference that unless there were some reason to believe to the contrary the original default was continuing. In the circumstances of the present case, the judge had been fully entitled to conclude to the criminal standard that the money was still outstanding. Nugee LJ agreed. The appeal had been lodged seven days out of time; the extension was allowed, and the appeal dismissed on the merits. Judgment, 23/08/2021, free
- The wife had previously sought to register and enforce the financial provisions of a 2010 French order through the English courts, but rather than applying under the Maintenance Regulation in the Family Court had made the application in the High Court. The mistake came to light in March 2020. An application for rectification had failed since there was insufficient evidence for the court to be satisfied that the husband was habitually resident or had assets in England, and previous orders for enforcement were declared null and void. The wife now appealed against this decision on the ground that the judge had erred in failing to find the conditions in FPR PD 34E para 4 to have been satisfied, but her appeal was dismissed by the Court of Appeal on the basis of the respondent's notice, which argued that the court had made an error of law in finding that FPR 4.1(6) was sufficiently wide to allow the relief sought by the wife. The wording of FPR 4.1(6) did not provide for rectification, only for variation or revocation. In King LJ's judgment, even if FPR 4.1(6) had been engaged and an order of variation made, the court could not possibly justify backdating the order to September 2017 when the evidence necessary for the making of the order had not been before the court at the time the original order was made. It was therefore unnecessary for the Court of Appeal to hear argument in relation to FPR PD 34E. Lewison LJ and Sir Nicholas Patten agreed. The appeal was dismissed. Judgment, 31/07/2021, free
- The parties had married in 1980, and divorce proceedings had concluded in 1991. The financial remedy proceedings had been enormously and bitterly contentious. The former wife now sought a wide range of orders against the former husband, including applications for: a freezing injunction under s 37 of the Senior Courts Act 1981; a non-molestation order under the Family Law Act 1996; an order for payment of outstanding arrears; an order for upward variation of spousal maintenance; an order for costs; and orders for various lump sums. In Cobb J's view, the presentation of the wife's case at the hearing had been somewhat chaotic, and her written evidence had contained unevidenced allegations and statements which strongly indicated a high level of paranoia and delusional thinking, including what were in his view extravagant claims of serious criminal conduct and acts of harassment. The application for a freezing order was doomed to failure given that the wife's purported claim for payment of arrears of periodical payments was itself hopeless. None of the issues canvassed in her evidence justified or called for a non-molestation order. Her applications were hopeless, unsupported by evidence, and without proper jurisdictional basis. Cobb J refused them all except for an application for upward variation of maintenance, which he would transfer to be heard at the appropriately located Family Court near to her home. Judgment, 09/07/2021, free
- The question for the court was under what circumstances a long-term nominal spousal maintenance order should be converted into a substantive order, and whether this could happen as a consequence of the financial difficulties arising from the lockdown. Such orders had been made most often in London and the south-east, where the children lived primarily with a parent who was able to support himself or herself, as in this case, but where the children were still young and things could change dramatically during their minority. The youngest child in this case was now 14. The former wife had applied for the court to convert a nominal order made in 2012 into a substantive order, as a short-term measure until she was once again self-sufficient. She argued that this should be treated as an ordinary variation application. After discussing the potential incompatibility of such nominal orders with clean break legislative changes, DDJ David Hodson decided that it was not appropriate to convert the nominal order into a substantive order, and dismissed the application. A nominal order was only to be converted if there had been a significant change in circumstances. Losing a job due to the pandemic could not, he said, be ascribed to relationship generated disadvantage. Asked to dismiss the spousal maintenance order altogether, he declined to do so but said he would be surprised if circumstances ever justified bringing it back to court. Judgment, 14/05/2021, free
- Part III of the Matrimonial and Family Proceedings Act 1984 provided for the making of an application for financial relief following an overseas divorce. By s 13, no application could be made without the leave of the court, and by s 13(1), no leave was to be granted unless the court considered that there were substantial grounds for making such an application. In this case, the wife appealed against a 2019 order of Cohen J, where he had set aside his own ex parte order for leave and on re-consideration of her application had refused to grant leave. The Court of Appeal considered the proper approach to an application made for the grant of leave and to any subsequent application to set aside an ex parte order for leave. In King LJ's view, there had been no basis for the judge to conclude that he had not properly considered the legislative purpose of Part III: the alleviation of the adverse consequences of no, or no adequate, financial provision being made by a foreign court in a situation where there were substantial connections with England. Rather, having heard argument on both sides, he had regretted granting leave. David Richards and Moylan LJJ agreed. The wife's appeal against the order setting aside leave for her to make an application for financial relief was allowed. It was therefore unnecessary to consider whether the judge had been wrong in refusing leave when he reconsidered the application. As to the impact of Brexit upon s 16(3), there were likely to be few if any cases outstanding to which it would apply and future Part III applications would be considered without reference to the Maintenance Regulation. Judgment, 14/05/2021, free
Latest know-how
- In this case Sir Jonathan Cohen (‘the judge’) had to determine the ambit of the applicant wife’s (‘W’) claims for financial remedy orders. Specifically, this concerned whether the English court had jurisdiction to determine W’s maintenance claim, given the effect of Council Regulation (EC) 4/2009 (‘the Maintenance Regulation’). Case note, 07/10/2021, free
- Case note, 22/04/2021, free
- Listed before Mostyn J for final disposal was an application for maintenance under s.27 of the Matrimonial Causes Act 1973 (“MCA 1973”) made by the wife (“W”), along with a Judgment Summons issued by W, and an application made by the husband (“H”) to set aside, or stay enforcement of, an interim order for maintenance and legal services provision. This judgment follows the judgment of the Supreme Court from July 2020, Villiers v Villiers [2020] UKSC 30. A summary of that judgment can be found here. Case note, 19/03/2021, free
- Cohen J heard applications made by both husband and wife following the handing down of judgment after a final hearing between the parties in March 2020. He gave two separate judgments. Case note, 25/02/2021, free
- Nicholas Cusworth QC, sitting as a Deputy High Court Judge, considered claims for interim maintenance and for a Legal Services Provision Order. Case note, 11/02/2021, free
Latest training
- Recording of webinar first broadcast on 3rd October 2019. Webcast, 03/10/2019, members only
- Recording of webinar broadcast on 7th February 2019 Webcast, 11/02/2019, members only
- Recording of webinar broadcast live on 4th October 2018. Presented by Philip Cayford QC of 29 Bedford Row. Webcast, 09/10/2018, 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, free
Latest sources
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