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Home > Articles > 2014 archive

Finance and Divorce May 2014 Update

Jessica Craigs, senior solicitor, and David Salter, Joint Head of Family Law, both of Mills & Reeve LLP analyse the financial remedies and divorce news and cases published in April.

 

 

Jessica Craigs, Senior Solicitor, and David Salter, Joint National Head of Family Law, Mills & Reeve LLP

As usual, this update is divided into two sections:

1 News in brief
2 Case law update

News in brief
The Guardian reported that cuts in legal aid are causing chaos in the family court.  The article focuses on the impact the cuts have had on Children Act applications and victims of domestic abuse and forced marriage. 

A survey by Napo, the union representing family court staff, found a big rise in the number of cases where neither party had a solicitor acting for them, so were representing themselves as litigants-in-person.

Figures from Cafcass, the family court service, showed that in 42% of cases now coming before the family courts, neither party was represented by a lawyer, compared with 18% before the cuts.

Click here for the full article.


Three drug, alcohol, paternity testing companies go into administration
Trimega Laboratories Limited, Screensafe UK Limited and Ingemino Testing Services Limited went into administration on the 7th April 2014. Paul Flint and Brian Green of KPMG were appointed joint administrators.  The cuts in legal aid were blamed for the demise of these companies.

Trimega Laboratories Limited, which operates out of Blackley, Greater Manchester, provided testing for cases involving child protection.  They offered services including hair drug, alcohol and steroid testing, along with DNA relationship testing services.
Stafford-based Screensafe UK Limited provides drug and alcohol testing services to the workplace market. Immediately following their appointment, the joint administrators sold this business and certain assets to Synergy Health Laboratory Services Limited.

Ingemino Testing Services Limited – also based in Blackley - operated as the laboratory company where primarily the Screensafe and Trimega testing was conducted.


Law students to 'hold the hands' of divorcing couples

The Daily Mail reported that Ministers have launched plans for a network of centres which will be manned by students and trainees who can guide couples before they appear in court.

For the full article, click here


Matrimonial needs addressed by the Family Justice Council
Following the Law Commission's paper 'Matrimonial Property, Needs and Agreements'  published in March 2014, the Ministry of Justice is seeking greater clarification over the concept of 'needs', especially quantum and duration.  

The Family Justice Council has consequently been asked to take the Law Commission's recommendation forward to clarify the law of "financial needs" on divorce or dissolution of a civil partnership.

Justice Minister Simon Hughes said:

"We want separating couples to have the best information available to help when they approach the difficult and emotional separation process. This new guidance will lead to a better understanding and more realistic expectations of what they will expect to receive as financial settlements and enable swifter and better resolution of disputes.

"We are committed to making sure that when couples do make the decision to separate they make use of mediation rather than go through the confrontational and stressful experience of going to court. This new guidance will help mediators give advice to separating couples so that they can settle disputes out of court. In those cases that do go to court it will also help the judiciary and prevent regional variations in the interpretation of 'financial needs'."

The Law Commission's report had three main recommendations:

1. written guidance to define and explain financial need;

2. an assessment of the feasibility of producing numerical guidance to calculate the likely financial outcome of divorce or dissolution; and

3. making qualifying nuptial agreements statutorily binding through amendments to the Matrimonial Causes Act 1975.


Case law update

JP v NP [2014] EWHC 1101 (Fam)
 
Application to set aside a final financial order that had been made following the breakdown of the couple's 35 year marriage.  The total assets available for distribution were £42,000. 

Background

A final financial order had been made in August 2011 following a contested final hearing.  The deputy district judge hearing the case had found that the assets should be divided equally and made an order for costs against the husband.  Due to difficulties in locating the marriage certificate, the decree nisi had not yet been pronounced by the time of the final hearing.  Therefore, the wife was ordered to complete her application for decree nisi and, upon decree nisi being pronounced, the case was to be listed for mention. 

The wife's costs could not be agreed and so she obtained a default costs certificate.  The husband successfully applied to set aside the costs certificate, alleging that the deputy district judge had lacked the jurisdiction to make the order because decree nisi had yet to be pronounced at the time.  The costs order was set aside and the wife ordered to pay the husband's costs of that application. 

Almost a year after the final hearing, the financial order was made (without a mention hearing) and the husband paid £21,000 to the wife. 

In August 2013, the husband issued a set aside application on the basis that the deputy district judge had lacked jurisdiction to make the substantive final order (and not just the costs element).  In November 2013, the husband's application was allowed and the final order was set aside.  This was on the basis that the judge had, by giving judgment prior to the granting of decree nisi made an order in breach of s.23 MCA 1973 which prohibits the making of an order in financial remedy proceedings prior to decree nisi.  The wife was granted permission to appeal. 

It was accepted by all that if the appeal were allowed the wife would retain the £21,000; if refused, it was agreed that she would issue fresh financial remedy proceedings and the likely outcome was that there would be an equal division of the assets, if any were left after payment of costs, which seemed unlikely.   The wife's costs were already over £16,000. 

Held
:  The wife's appeal was allowed and the husband was ordered to pay her costs.
Mrs Justice King carefully considered the existing authorities.  It was clear that s.23 MCA 1973 provided the jurisdictional basis that orders could not be made until on or after decree nisi regardless of whether they were made by consent or following a contested hearing.  She looked at:

• Munks v Munks [1985] FLR 576 where the Court of Appeal had held that a Registrar had had no jurisdiction to make a consent order prior to the decree nisi and that an order made without jurisdiction and where one party was entitled to see it set aside could not be saved by the slip rule or under the inherent jurisdiction.

• Board (Board Intervening) v Checkland [1987] 2 FLR 257 where the Court of Appeal had followed Munks, holding that an order that had been made through an administrative error before decree nisi (despite the order indicating that it was to be made upon decree nisi) had been made without jurisdiction and could not be revived.

• Pounds v Pounds [1994] 1 WLR 1525 where, due to a clerical error, the perfected consent order carried the date when the Registrar had signified his approval of the proposed settlement rather than the sealing date.  The High Court had held that the Registrar had no power on a date prior to decree nisi to direct that an order should be made on a date subsequent to decree nisi, that a consent order was only valid if some judicial act was brought to bear upon it after the date of decree nisi and had found the order to be a nullity.  The Court of Appeal had reinstated the order on the basis that RSC Ord. 42 r 3 gave the court power to approve a draft financial consent order in advance of decree nisi and direct that it should take effect at a future date. 

RSC Ord. 42 r 3 has since become r. 40.7(1) CPR 1998; and in turn that had been translated into the FPR 2010 at r.29.15 which provides:

"A judgment or order takes effect from the day when it is given or made, or such later date as the court may specify"

r.29.15 applied to both contest orders and non-consent orders and that view, taken by King J, was reinforced by:

• r.2.1(1) providing that r.29.15 applied to all family proceedings (unless provided for otherwise);

• financial remedy proceedings were family proceedings (s.8(4)(b) Children Act 1989); and

• no distinction was made between a consent and a non-consent order.

Therefore, under r.29.15, the deputy district judge had had the power to direct that a judgment should take effect from a later date specified by the court. 

King J then went on to consider whether a distinction ought to be drawn between orders made by consent and contested orders made prior to pronouncement of decree nisi.  She carefully considered the husband's argument that a distinction should be drawn because:

• consent orders were effectively "protected" from the normal quasi-inquisitorial jurisdiction of the court by s.33A MCA 1973 and could therefore be made prior to decree nisi and expressed to take effect on or after decree nisi had been pronounced; and

• in contested applications the court retained a duty to investigate whether there was a change in circumstances between any hearing and the making of an order upon pronouncement of the decree. 

However, Contrary to these arguments, King J found that r.29.15 applied equally to consent and non-consent orders (the rule specifically referred to "judgments" which implied contested issues were covered – be that judgment a final determination taking immediate effect or an indication of outcome with the consequential order to be drawn and made at a later date) and added that in both cases FPR 29.15 gave the court a discretion as to the date of implementation; and, in neither case was there a necessity or requirement for any fresh appraisal after decree nisi.  The only difference she noted was that policy considerations dictated that, when making a consent order, the depth of inquiry necessary had been limited whereas if the court was being asked to resolve a dispute, a more detailed consideration of the evidence was needed. 

It remained the case that r.29.15 had no impact on the basic jurisdictional principle encapsulated in s.23 MCA 1973 and, regardless of whether the court was dealing with a consent order on the one hand or a disputed issue on the other, if the court purported to make an order or provided for a judgment to take effect prior to decree nisi, the resulting order would be a nullity and could not be saved by r.29.15. 

In conclusion, King J said:

"In my judgment in both cases FPR 29.15 gives the court discretion as to the date of implementation and in neither case is there a necessity or requirement for any fresh appraisal after decree nisi. I should emphasise that it remains the case that FPR 29.15 has no impact on the basic jurisdictional principle encapsulated in s23 NMCA 1973 and regardless of whether the court is dealing with a consent order on the one hand or an disputed issue on the other, if the court purports to make an order or provides for a judgment to take effect prior to decree nisi, the resulting order will be a nullity and cannot be saved by FPR 29.15." 

Here, the wording used by the deputy district judge made it apparent that he was giving an indication of outcome by way of judgment with the order to be made at a later date, the date being the granting of decree nisi.  In accordance with that indication, an order had been made after and not before decree nisi.  The DDJ had not erred in law and had at all times had jurisdiction to hear the case, give judgment and provide for the consequential order to be made after decree nisi. 

In such circumstances, costs had to follow the event and it was inevitable that an order was made that the husband pay the wife's costs of the appeal and the previous proceedings. 


N v N [2014] EWCA 314 Civ
  
The husband and wife had married in 1993 and have two children, now aged 19 and 16.  The relationship had broken down and the husband had petitioned for divorce in 2003.  In January 2005, the financial proceedings had been compromised and a consent order approved which provided that the husband would pay the wife periodical payments at the rate of £1,000 per month for a fixed term of five years.  This was based on H's annual earnings of £125,000. 

In 2008, the wife had applied to extend the term of the periodical payments order so that it would be a joint lives order; she also applied for an upwards variation to £1,800 a month.  The husband cross-applied for a downwards variation on the basis that he had left his high earning employment due to depression.  In November 2009, an order was made that extended the term of the original order to April 2012 but left the level of periodical payments at £1,000.  A bar under section 31(7B)(c)(i) MCA 1973 was imposed. 

At that time, the judge had held that the wife should develop her own earning capacity and that the husband was unable to work due to depression and had a minimal earning capacity.  However, there was every possibility that the husband would return to work at some point in the future and, if he did so, it was likely that he would return to a well paid job. 

The wife appealed the variation and, in May 2010, a further variation was made extending the term until August 2015 following which they would continue at a nominal rate on a joint lives basis. 

The husband appealed this variation and, in June 2011, the November 2009 order was restored by the Court of Appeal. 

The wife unsuccessfully sought permission to appeal to the Supreme Court. So, instead, she applied to have the November 2009 order set aside on the grounds of material non-disclosure.  The substantive hearing took place before the same judge who had made the November 2009 order.  The wife submitted evidence of email conversations between the husband and a headhunter about future employment opportunities which had taken place just before the November 2009 order had been made.  As a result of these conversations, the husband had undertaken some freelance work but had not secured employment.  The judge found that the husband's submission that he was not working due to health reasons had been misleading. She reviewed the evidence of the husband's remuneration from business activities and work during the period following the November 2009 order and found that there had been material non-disclosure to her in 2009 and to the two appellate courts in May 2010 and June 2011.

The November 2009 order was set aside and the judge gave directions for a hearing to redetermine the wife's application for periodical payments.  The husband appealed to the Court of Appeal.

Held: The husband's appeal was allowed. The set aside order was itself set aside and the November 2009 order was reinstated. 

The appeal judges found that the evidence that had been placed before the court by the wife had been insufficient to support a finding of material non-disclosure.  In particular, they highlighted that: 

• the judge had failed to focus on examining whether the husband had disclosed his true intentions about obtaining employment in the original proceedings.  The importance she had attached to her finding of a breach of a continuing duty of disclosure in the appeal process had pervaded her entire view of the husband's conduct.  The husband's dishonesty in misleading the two appellate courts might indicate misconduct, but did not of itself establish that he had misled the court when the November 2009 order had been made;

• the judge had not found as a fact that material non-disclosure took place in 2009.  The husband had not been cross-examined about his intentions at the time the November 2009 order was made; the judge had merely drawn inferences from his conduct after November 2009;

• the e-mail conversations between the husband and the headhunter before November 2009 would not have materially altered the order that was made. The November 2009 order had been based on the wife becoming financially independent and the judge had specifically contemplated the husband returning to work; and

• it was not open to the judge to find that the husband was in breach of a duty to disclose changes in his financial circumstances during the appeal process. There was no authority in case law or the Family Procedure Rules 2010 (FPR) that imposed such a duty. This contrasts with civil proceedings, where r.13.11 CPR 1998 explicitly provides that the duty to disclose continues until the proceedings are concluded.


M v W [2014] EWHC 925 (Fam)
The husband (aged 50) and the wife (aged 49) had married in 1987 and have three adult children.  They had moved to New Zealand in 2001 but separated in 2008.  Their financial claims against each other had been compromised in June 2009 within the terms of an agreement – a Separation and Relationship Property Agreement - which had been negotiated with the help of their legal advisors and was in accordance with New Zealand law.  

The agreement provided that the wife would retain the net sale proceeds of the former family home (less mortgage and costs of sale) and that the husband would retain his armed forces pensions and various other policies and bank accounts.  Insofar as maintenance was concerned, the agreement specified that it was agreed that the husband would pay no spousal maintenance but that he would continue to pay school fees (although this was expressed to be in lieu of child support).  Paragraph 14 was the crucial paragraph of the agreement and it is therefore worth setting out in full:

• "14.1 It is acknowledged by RW and RM that each of them has fully disclosed to the other all their respective interests in relationship and separate property and that this agreement only covers property disclosed to each at the time this agreement was signed.

• 14.2 Each party undertakes to immediately do all things and sign all documents that are necessary to implement the terms of this agreement.

• 14.3 Each party shall meet their own costs of and incidental to this agreement and to the implementation of its terms.

• 14.4 RW and RM acknowledge that before signing this agreement they each received independent legal advice as to the effects and implications of the agreement and its terms.

• 14.5 The provisions of this agreement are binding on the parties in all circumstances including the death of one of the parties.

• 14.6 The provisions of this agreement (subject to clause 14.1 above) are in full and final settlement of all questions concerning all of the relationship or separate property owned by RW and RM or both of them and from the date of this agreement neither of them shall have any claim against the other relating to such property whether under the Property (Relationships) Act 1976 or under any other statute or at common law."

Following the signing of the agreement, decree nisi was pronounced in October 2010 and made final in November 2010.  Shortly after this, the wife had returned to England and now considered herself domiciled and habitually resident in this jurisdiction.  Neither the husband nor wife had remarried although the husband lived with his new partner and their young child.  The husband had remained in New Zealand and was earning in the region of £66,000 per annum.  The wife had been diagnosed with leukaemia which had affected her ability to work; she lived with her parents for whom she was a part time carer. 

The wife had already sought, in New Zealand, to have the agreement set aside on a number of "conventional grounds".  However, she had withdrawn her application (although the reasons for the withdrawal had not been clear). 

At a without notice hearing seeking permission to apply for financial provision under Part III MFPA 1984, the wife had submitted that the agreement entered into had not been conclusive (i.e. it had not been turned from an agreement into an enforceable court order), the valuation of the pensions had been flawed, she had only entered into the agreement under pressure and, finally, the agreement did not afford her proper financial provision.  She was granted permission to make her application.  She sought a substantive order that:

• gave her spousal maintenance;

• gave her child maintenance and other educational expenses for the youngest child (who was now at university); and

• reviewed the valuations and treatment of the pensions

The husband applied (on notice) to have that permission set aside on the grounds that there was a full, final and binding financial agreement.  He did so on two grounds:

• under the EU Maintenance Regulations, the court did not have jurisdiction to entertain W's application for income provision;

• the first instance judge had not been given the full picture so far as the New Zealand proceedings were concerned.  He produced a letter from his New Zealand barrister which confirmed that an agreement of the kind the husband and wife had entered into was a final and binding settlement – there was no requirement that it be converted into a court order to take full and final effect.  The agreement could be enforced by an application for specific performance if it was breached.  This was significant evidence and it was not challenged by the wife. 

The husband's essential argument was that the wife was seeking a second bite of the cherry.  He submitted that all the wife's claims at the time of the parties' divorce were fully and fairly dealt with in New Zealand, entirely properly according to New Zealand practice and law and the wife, having spent the full share which she received at the time, should not now be able to come back in this jurisdiction and have another go.  

The wife contended that the English court did have jurisdiction to hear her claim and maintained that she had not been dealt with fairly in New Zealand and now found herself very short of financial resources. 

Held:
The husband's appeal was successful. 

The law in relation to applications under Part III MFPA 1984 is now "well and truly" described by the case of Agbaje in which Lord Collins set out the proper approach to these cases both in general terms and also in the case of preliminary applications of the kind before Mr Justice Coleridge. 

Coleridge J agreed with Lord Collins where he had said that the court should be slow to allow extended debates at the leave stage and should only prevent applications going forward if the parties seeking to set aside the leave could deliver a "knock out blow".  He quoted Lord Collins:

"It is not the purpose of Part III to allow a spouse (usually, in current conditions, the wife) with some English connections to make an application in England to take advantage of what may well be the more generous approach in England to financial provision, particularly in so-called big-money cases.  There is no condition of exceptionality for the purposes of s 16, but it will not usually be a case for an order under Part III where the wife had a right to apply for financial relief under the foreign law, and an award was made in the foreign country.  In such cases mere disparity between that award and what would be awarded on an English divorce will certainly be insufficient to trigger the application of Part III.  Nor is hardship or injustice (much less serious injustice) a condition of the exercise of the jurisdiction, but if either factor is present, it may make it appropriate, in light of all the circumstances, for an order to be made, and may affect the nature of the provision ordered.  Of course, the court will not lightly characterise foreign law, or the order of a foreign court, as unjust."

On the EU Maintenance Regulation point, Coleridge J agreed with the wife's submissions as to the meaning of "creditor" under Article 3 and therefore the court did have jurisdiction to hear her claim.  The wife had relied upon the case of Farrell v Long [1998] 1 FLR 559 as authority for the clear proposition that a maintenance creditor includes a person in the wife's position i.e. someone who was applying for maintenance included a person bringing a maintenance action for the first time.  Coleridge J said:

"I think a proper reading of the Article, particularly against the background of the case of Farrell v Long drives me to the conclusion that a maintenance creditor is someone who is an applicant in the sense of a potential creditor.  I consider that the Regulation makes little sense unless that is the proper interpretation.  Accordingly I find that the court does have jurisdiction to hear this claim."

Finding that at the without notice hearing the judge had not been aware of (or had possibly misunderstood) the true effect of the New Zealand agreement and had been under the impression that the approval of the court was required, there was no option but to set aside the permission the wife had been granted. 

Having set it aside, Coleridge J reconsidered the whole question of leave de novo but, of course, with the great advantage of having been presented with full arguments from both parties.  The onus, he said, was on the wife to establish on Agbaje principles that she had a solid basis for proceeding in the face of a foreign agreement that had the same effect as a final order i.e. did the New Zealand agreement make any prospect of the wife succeeding so remote as to be insufficient to justify leave being granted? 

The New Zealand agreement, Coleridge J explained, had been as full, fair and final as it was possible to provide for in that jurisdiction – both sides had had full legal advice and both had had the agreement fully explained to them at that time.  The proper forum therefore to challenge the agreement had to be New Zealand.  Furthermore, the wife's grounds for proceeding in England (for example, the way in which the pension had been treated in New Zealand or the lack of disclosure) were "very lacking merit" and had virtually no prospect of success – they did not amount to a "solid" ground for proceedings.

That left the wife with the simple point that she was now facing straitened financial circumstances.  Coleridge J, whilst having sympathy with the wife's position, could not see how, as a matter of fairness, it could possibly be justified to allow her to launch a second full scale enquiry into the husband's circumstances.  If a final order had been made in this jurisdiction along the lines of the order made in New Zealand, it would be incapable, he said, of being undermined, absent Barder type factors, simply because a wife had spent her share and needed more.


MET v HAT (No. 2) [2014] EWHC 717 (Fam) 
This judgment follows on from the 2013 judgment in these proceedings were Mostyn J had espoused a cautious approach to awarding maintenance pending suit or legal costs awards where a party's claim to jurisdiction was considered to be weak. 

Since the previous hearing:

• the wife had changed solicitors (again);

• both parties had filed evidence (including Forms E); and

• the wife had obtained expert evidence contradicting the single joint expert's view as to the validity of the talaqs pronounced by the husband.  The SJE had subsequently agreed with the wife's expert. 

To recap, the previous evidence of the single joint expert had pointed to the existence of a strong case that there had been a valid non-proceedings divorce that was entitled to be recognised in this jurisdiction.  Consequently, Mr Justice Mostyn had exercised caution in making an interim award in the wife's favour – just £20,000 per month in child support and £50,000 as a contribution to historic costs the wife had incurred. 

The wife's expert had highlighted that the single joint expert had overlooked a legal provision in the husband's home country which said that the triple talaq pronounced by the husband was void and of no effect.  His opinion was that the single talaq pronounced initially by the husband had been an effective divorce and that this was a proceedings divorce entitled to recognition in this jurisdiction.  The single joint expert now agreed with this opinion.

Although the husband had been given permission to obtain evidence from a third expert he still faced a hurdle in the form of s.51(3)(b) Family Law Act 1996 which requires production of an official document proving the non-proceedings divorce.  No such document had been produced.   This turn in events forced Mostyn J to revisit his previous view, which he revised: 

"On the basis of the revised expert opinion, I now in turn revise completely my previous view.  I am of the view that there is a strong case that the single talaq pronounced by the husband before the judge in his home country is the effective divorce and that this is a proceedings divorce entitled to recognition as such in this jurisdiction.  Accordingly, the wife, subject to meeting the jurisdictional requirements under s.15 of the Matrimonial and Family Proceedings Act 1984 (where she has a more than merely arguable case, particularly if her claim is confined to maintenance - see s.15(1A) of the 1984 Act), would, in my opinion, in all likelihood, be granted leave under Part III.  The wife has a strong case for the grant of leave under Part III.  Therefore, in my judgment, in sharp contrast to my previous opinion, the wife today has a strong case for a substantive award for maintenance pending suit and a costs allowance, provided that the merits warrant such an award."

Looking at the substantive claims for Maintenance pending suit and a legal services payment order brought by the wife, the husband submitted that:

• the wife had recklessly dissipated funds and that this should be taken into account when making an interim award – "a small fortune" had been spent on legal fees since February 2012, she had received £3.125million from the husband already of which £1.9million had been intended for the wife to use to purchase a house in London and instead of preserving it as requested, she had bought a villa in Egypt for £2.3million;

• the husband had not known that he was signing an agreement to pay the wife £60,000 a month by way of interim maintenance; and

• all his money had now gone bar two properties and that he survived on a monthly stipend of £37,000 granted by his relative, the current ruler of an Arab country. 

Meanwhile, the wife submitted that the husband was seriously wealthy but had also recklessly dissipated funds – for example £4 million of a £10 million inheritance still remained unaccounted for. 

Held:
Mostyn J revised the original award, awarding the wife £33,166 per month together with a monthly costs allowance of £10,000. 

On the wife's reckless dissipation of funds, Mostyn J remarked that he had not known a case where this had been taken into account at the maintenance pending suit stage; and it was not appropriate for him to break the mould and do so in this case: 

"An award for maintenance pending suit is by its very nature a measure designed to hold the ring and to ensure that the claimant can live reasonably pending the final determination of her claims.  A legal services payment order is designed to ensure access to justice and that the parties can litigate on an equal footing.  Both types of award are always adjustable if it transpires at the final hearing that there has been too much or for that matter too little paid.  In my judgment, it is not appropriate for me to take into account a dissipation of money at the maintenance pending suit stage, even if the arguments for taking into account such dissipated monies at the final hearing appear strong or even very strong." 

Applying principle 4 as set out in TL v ML [2006] 1 FLR 1263 ("Where the affidavit or Form E disclosure by the payer is obviously deficient the court should not hesitate to make robust assumptions about his ability to pay.  The court is not confined to the mere say-so of the payer as to the extent of his income or resources … In such a situation the court should err in favour of the payee."), Mostyn J was satisfied that he should make robust assumptions as to the ability of the husband to pay maintenance pending suit.  Preferring the evidence of the wife, he declined to accept that H was confined to a stipend of £37,000 per month. 

The wife's budget had been trimmed by her new solicitors and was a far more reasonable figure than had previously been presented.  Her request for £33,166 a month for both her and the children was therefore granted. 

Insofar as the legal services payment order was concerned, the wife's costs up to FDR were estimated to be £220,000 and she sought a monthly costs allowance of £20,000.  However, W accepted that some of her own monies should be applied to the costs and so a monthly costs allowance of £11,000 was ordered until the FDR.  In the event that the husband decided to challenge the validity of the triple talaq pronounced, the wife would receive a further £10,000 a month towards her costs.
Finally, the contribution of £50,000 towards the wife's historic costs was stayed as the historic costs were likely to be the subject of a SRA complaint by the wife. 


CC v NC [2014] EWHC 703 (Fam)
 
The wife (aged 70) and the husband (aged 68) had married in 1970.  They have two children who were now both in their early 40s.  They had moved to the UK in 1976 and the husband had had a very successful career as a businessman.  At the time of separation, they had substantial assets including properties in England and France, a holiday chalet in Austria, various offshore trusts and "TA", an "ambassadorial residence" in London worth about £15million.  :

The husband was a beneficiary of the offshore trusts which had been settled by his mother (although nobody realistically suggested that his mother had actually contributed any money to the trusts)

The issue of jurisdiction (and whether or not the husband remained firmly based in London) was somewhat complex and was the subject of separate proceedings due to be heard at the end of 2014.  In 2002, the couple had sold their English country home and purchased a property in the south of France; they made it clear to the authorities here that they were relocating to France.  However, at the same time, the husband signed a form saying that he was ceasing to be resident in the UK for tax purposes; in fact in that form, he said he was going to leave for the Lebanon. In the following year, the wife wrote to Camden Council in relation to council tax, stating that her sole and main residence was in Austria.  During the proceedings, the husband's case was that from 2002/2003, the couple's principal home was in France.  The wife refuted that, claiming that the husband had remained firmly based in London. 

In 2011, after over 40 years of marriage, the relationship began to break down and the husband asked for a separation.  The wife began to spend her time predominantly in Austria.  The husband gave the wife a fund of money with which she purchased, as an investment, a two-bed flat in Austria for €600,000.  Relations irretrievably broke down in June 2013 when, at their Provence home, the couple had a "most animated argument . . .  in circumstances where the husband had put to death the wife's pet ram. I say no more about that, apart to say that the circumstances leading up to that lead one to consider that it is not perhaps altogether surprising that the relationship irretrievably collapsed at that point". 

In November 2013, the wife filed a divorce petition – and she claimed almost every jurisdictional basis available:

• that the parties' last habitual residence was in England and Wales and that one or other of them still resided here;

• that the husband habitually resided here;

• in the 12-month period prior to the petition, that she had habitually resided here;

• that she habitually resided here and had resided here for six months and was domiciled here; and

• that the parties were domiciled here.

The husband cross-petitioned for divorce in Austria a few days later.  It was quite clear that both were forum shopping. 

The wife had then applied for maintenance pending suit at the rate of £393,000 p.a. 

The husband's submission was fairly straightforward.  Whether the wife had jurisdiction to launch divorce proceedings in the English courts was a matter of debate; her claim, he said, that England did have jurisdiction was a weak one and therefore the court had to be cautious in what was awarded in terms of maintenance pending suit.  In other words, the court should proceed very conservatively, in circumstances where it was likely that the wife's claim to jurisdiction would fail and the husband would find himself having paid out large sums of money to the wife which he would not be able to recover.  He relied on Mostyn J's decision in MET v HAT [2013] EWHC 4247

Held: The wife was awarded maintenance pending suit at the rate of £170,000 p.a.

Mostyn J agreed with the husband that, on the basis of the wife's own habitual residence, her claim to jurisdiction was a weak one and would more likely than not fail.  He took into account that in the 12 months preceding the date of the petition, the wife had only been in the jurisdiction for 26 days.  In that time, she had purchased a property in Austria, declared it to be her principal residence and was, in reality, predominantly living in Austria. 

However, the wife had not simply relied upon her own habitual residence within her petition.  She had also relied upon the husband's habitual residence being England and that this was the territory where the spouses were last habitually resident, insofar as one of them still resided here.

Mostyn J noted that in the 12 months preceding the wife's petition, H had spent 83 days in the UK plus a further 28 transit and medical days i.e. a total of 110 days.  Whilst that might not be considered much better than the wife, it was by far more days than he had spent in any jurisdiction (the next competitor was the Lebanon, with 79 days, followed by France, with 74 days).  So, although the exercise is not one of counting days alone, the fact was that, in the 12-month period, the husband had spent more time in this jurisdiction than in any other individual jurisdiction.  He also maintained a significant infrastructural operation here and his centre of interests were certainly, arguably, in England.  Therefore the wife did have a strongly arguable case that, in relation to the husband's residence, jurisdiction could be claimed; in those circumstances, Mostyn J said, it would not be proper for the court to discount her maintenance pending suit claim or otherwise act conservatively by reference to that factor. 

The wife's proposed budget was for £393,000 and Mostyn J looked closely at it to see where savings could be made.  The most significant item in her budget was a claim to be able to rent a house in London at a cost of £170,000.  Although the wife was not keen to take advantage of "TA", given that neither of them went there often, it seemed sensible that the wife should use the property as her London base and the husband gave various undertakings in that regard.  Other claims for items such as health insurance and car lease costs were either removed (because the husband would pay these direct or there was another workable solution) or, in the case of clothing, restaurants and travel, were reduced.  An eventual award of £170,000 p.a. was made converted into monthly payments of £14,166. 


Joy v Joy [2014] EWCA Civ 520
 
In the course of financial proceedings, an order had been made that the husband should deliver up a vintage Bentley car (located in the South of France) so that the car could be transported and stored in England to await further orders of the court, including, potentially, costs orders in the wife's favour.  By the time of this hearing, two new events had occurred:

• the car had been charged or pledged to the wife's solicitors to secure his liability for their costs (this was being challenged in the financial proceedings under s.37 MCA 1973); and

• the car had been made the subject of a French order relating to a trust dispute. 

The husband sought to continue a stay on the deliver up order - the stay had been imposed because of a jurisdictional challenge.  The wife wanted the stay lifted because, if the stay were to remain in place, she would have difficulty arguing for the French order to be lifted.  The husband's past behaviour also indicated, she said, that he would likely take the car to another jurisdiction to evade enforcement.  The husband submitted there was no evidence to support such an allegation and that the car should remain at his French property until all matters had been concluded. 

The unexpected French order had complicated things.  Before the deliver up order could be complied with, even if the stay were lifted, the French order also had to be lifted.  As far as that was concerned, there was likely, on the basis that the wife sought the removal of that order, to be a need to argue in France jurisdictional questions including the question of whether the trust's claim to the car and the wife's claim in the English matrimonial proceedings were related, and if they were related, which was the court first seized? 

Despite these very interesting tangents, the issue before Lord Justice Patten was whether, in these circumstances, it was right that the stay should continue. 

Held:  The stay was lifted.

The question was where the balance of convenience and risk lay. Guided by what steps would best enable the deliver up order to be complied with, Patten LJ said that he was entitled to take the view that the court should not make an order which made it more difficult and perhaps impossible for the car to be freed from the unexpected order of the French court.  For that reason alone, and having regard to the fact that no serious prejudice would be caused to the husband or any other interested parties if the stay were lifted and the car removed to England, Patten LJ lifted the stay to give effect to the deliver up order (subject to the removal if a French court considered it appropriate of its own order in relation to the car).


Luckwell v Limata [2014] EWHC 1035 (Fam)
 
Since Holman J's decision in Luckwell v Limata [2014] EWHC 502 (Fam), the parties had agreed that the wife would purchase a property which the husband would lease from her at a peppercorn rent (remember that Holman J's order was that the husband was to have the benefit of a larger property until the youngest child reached 22, at which point that first property was to be sold and a smaller property purchased for H's benefit using 55% of the equity ("the step down"). There was therefore to be at least one sale and re-purchase of property). 

The issue of how the CGT on the step down should be funded had not been considered.  The wife contended that the tax should be borne in the same shares as the division of the capital at that point (45%:55 %:).  The husband argued that the wife should bear the entirety of the tax and that his 55% should not be depleted.  Holman J held that the wife should bear the whole CGT burden as he had not intended for H's 55% share to be reduced by CGT (and therefore that "net proceeds of sale" did not, ordinarily, include CGT) but the entire structure of the order had been at the wife's behest because she had wanted to retain ownership of the property.