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Whitehouse-Piper v Stokes [2008] EWCA Civ 1049

Appeal by wife against orders in ancillary relief proceedings where a circuit judge, of his own motion, raised a point as to jurisdiction.

The couple had married in 1989 but the marriage dissolved in 1995 and the wife remarried in 1995. During the divorce proceedings, the wife had applied for ancillary relief but the matrimonial home was in negative equity and as there were also arrears, an agreement to transfer the property to the husband for which in return the wife would be relieved of any obligations was not put into effect. By 2005 there was significant equity in the house and the husband sought to formalise the transfer. In response the wife issued a Form A to seek, among other things, a property adjustment order on the property for her share. The district judge agreed to transfer the property but refused the lump sum for the wife. An appeal to the circuit judge has the same result but also raised the jurisdictional point concerning the ability to make an application after remarriage under s28 of the MCA 1973.

In this appeal, Thorpe LJ found the appeal to be unmeritorious  and undermined the point by finding that the wife could properly make the application as she had applied for all forms of ancillary relief and that, following Dart v Dart, she could properly seek an order against herself. All she had failed to do was to persuade the judge of the merits of the discretionary lump sum.


Case No: B4/08/0551
Neutral Citation Number: [2008] EWCA Civ 1049
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 15th July 2008


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STOKES (Respondent)

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(DAR Transcript of
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Ms P O’Connor (instructed by Messrs Holley & Steer) appeared on behalf of the Appellant.

Ms C Jones (instructed by Messrs Clarkes) appeared on behalf of the Respondent.
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Judgment (As Approved by Court)
Crown Copyright©

Lord Justice Thorpe:
1. This is, in my judgment, an unmeritorious appeal but we must entertain it because it goes to the court’s jurisdiction.

2. The proceedings below have been in the Shrewsbury County Court where on 2 August 2007 District Judge Brown transferred the former matrimonial home at 1 Abraham Close, Telford, from the joint property of the former spouses to the property of the respondent husband.  He refused the wife’s application for a balancing lump sum in her favour and ordered her to pay £5,000 on account of the husband’s costs because he concluded that her application was both unmeritorious and unreasonable.  The wife appealed to the circuit judge, who, having heard argument from the parties that went all to merit, of his own motion conceived a jurisdiction point.  Accordingly he required counsel to file further skeleton arguments dealing with the jurisdictional point and then delivered a reserved judgment on 18 February 2008 dismissing the wife’s appeal and ordering her to pay the husband’s costs. 

3. What was the jurisdictional point that had occurred to HHJ Mitchell in the interim?  It was derived from section  28(3) of the Matrimonial Causes Act 1973, which provides:

“If after the grant of a decree dissolving or annulling a marriage either party to that marriage remarries whether at any time before or after the commencement of this Act, that party shall not be entitled to apply, by reference to the grant of that decree, for a financial provision order in his or her favour, or for a property adjustment order, against the other party to that marriage.”

4. It seems probable that the judge raised this point after consulting the Family Court Practice, for Miss Jones who appears for the respondent to the appeal has informed us that in the note to the section the authors particularly draw attention to the decision of this court in the case of Robin v Robin [1983] 4 FLR 632.

5. The case of Robin v Robin is now antique, and any decision on the application of section 28(3) can only be drawn from the judgment of Dunn LJ, who at that point spoke obiter.  However, in his obiter dictum he was very plain that if the court’s jurisdiction rests solely on an application by one spouse, the other spouse cannot as it were find his jurisdictional base within that application.  A respondent to a divorce petition had to issue some application, either by way of prayer within an answer or by issue of application thereafter, in order to found jurisdiction. 

6. The judge surmounted the difficulty which he had himself observed by reference to a much later decision of this court in Tee v Tee and Hillman [1999] 2 FLR 613, where the court had particularly disapproved of parties engaging in TOLATA proceedings when their fundamental dispute related to a property and nothing else but a property where the court in doing justice was not restricted to proprietary law but could have regard to all the circumstances imported by the court’s section 25 jurisdiction.  And that is how the judge overcame the jurisdictional problem.

7. I have expressed the view that this appeal is unmeritorious, and to make that good I must briefly record the history.  The parties commenced cohabitation in 1987 and married briefly in 1989.  They had two children (one born in 1988, the other in 1990) and they separated in 1993, the marriage being dissolved in August 1994.  The wife re-married in 1995, and the husband re-married in 2004.  The wife’s petition for divorce contained a prayer for ancillary relief in conventional terms.  However, at the date of divorce the final matrimonial home was worth less than the mortgage that secured it, and the only asset of substance was an endowment policy, which the parties shared between them.  Accordingly there was nothing at that stage against which the wife’s application for financial relief could tilt.

8. In 1997, when the property was still in negative equity, an agreement was reached between the parties that the property would be transferred to the husband without payment to the wife, provided that she could be released from her obligation under the mortgage.  At the time there were some arrears under the mortgage, and accordingly the mortgagee was not prepared to release, and the matter therefore rested as an agreement that was never implemented. 

9. In 2005 the financial picture had changed radically.  The property had emerged from negative equity into substantial positive equity, perhaps between £80,000 and £90,000, and the husband raised again his desire, and as he would have seen it his entitlement, to have the formality of transfer completed.  That seems to have provoked the wife to issue on 2 November 2006 a notice of intention to proceed with her application for ancillary relief.  The notice is on the standard court form A, and it specifies as follows:

“Take notice that the applicant intends to proceed with the application in the petition for:
(a) a property adjustment order in respect of 1 Abraham Close, Telford;
b) a lump sum order;
c) a pension sharing order or a pension attachment order."

10. The third application notified -- a pension sharing order or a pension attachment order -- was completely formal.  It was plain that that was no part of the case.  What the wife wanted was to extract her share of the equity, which she contended was in the order of £45,000, to be achieved by transferring the property away from her to the husband but balanced by a lump sum payment in her favour.  That is the conventional way in which an applicant who does not advance a case for the transfer of the whole to her and who does not seek realisation of an equity share by sale will proceed.

11. It does not seem to me necessary to refer in any detail to authority or indeed to the statute, other than to emphasise, as my Lord, Stanley Burnton LJ has, that the court’s power is defined by section 21(2)(a) of the Act, which provides:

“For the purposes of this Act a property adjustment order is --

(a) an order that a party must transfer such of his or her property as may be specified in favour of the other party or a child of the family.”

12. Accordingly it seems to me plain that the short answer to this appeal is that the wife applied, by her petition, for all forms of ancillary relief.  That entitled her to issue a notice of intention to proceed in Form A despite the fact that the application be filed with the court after remarriage.  She took that step on 2 November.  She sought an order against herself which was duly achieved.  All she failed to do was to show any discretionary entitlement to a balancing lump sum.  The capacity for a party to seek a transfer order against him or herself is clearly established by the decision of this court in Dart v Dart [1996] 2 FLR 286.  Accordingly the jurisdictional point, quite keenly perceived by HHJ Mitchell, does not directly arise in this case.  The answer to the problem that he perceived is to be found clearly in the procedure.  I do not consider that it is necessary to engage, as the judge did, in an analysis of previous decisions of this court.  It is fortunate that the view I have reached on the point of jurisdiction coincides with the view I have reached on the merits.  Had this jurisdictional point succeeded, the consequence would have been to drive the respondent husband into TOLATA proceedings, where he would almost certainly have achieved the same result.  That is a view expressed by HHJ Mitchell and it is a view with which I concur. 

13. So for all those reasons I am relieved to be able to reach the conclusion that this appeal should be dismissed.

Lord Justice Wall: 
14. I agree.  I am very conscious of the fact that I gave permission to appeal in this case, but on closer analysis and on the study of documentation, the proposition my Lord has advanced seems to me clear: that this wife was entitled to make her application because she had made it in her petition notwithstanding the fact that she had remarried.  Dart v Dart makes quite clear that a party in these circumstances, or in any circumstances, is entitled to ask for relief against him or herself and therefore the section 28(3) point as far as the husband is concerned simply does not arise.  The judge was entitled as a matter of jurisdiction to make an order transferring the property and to decline to award a lump sum.  In my judgment that result accords with justice and, like my Lord, I would dismiss this appeal.

Lord Justice Stanley Burnton:
15. I agree.

Order: Appeal dismissed