Housing Law WeekIQ Legal TrainingAlphabiolabsBerkeley Lifford Hall Accountancy Services

Home > Articles > 2015 archive

Finance & Divorce Update October 2015

Edward Heaton, Principal Associate and Jane Booth, Associate, both of Mills & Reeve LLP analyse the news and case law relating to financial remedies and divorce during September 2015

Edward Heaton, Principal Associate and Jane Booth, Associate, both of Mills & Reeve LLP

As usual, this month's update is divided into two parts:

A. News in brief

Resolution invites members to participate in research into no fault divorce

Is it time to move towards no fault divorce?  Many argue that the existing fault-based system does not reflect how couples view the situation.  To address this, Resolution has invited its members to take part in a major two-year study exploring how the current law operates in practice.  The study is being conducted by the University of Exeter and funded by the Nuffield Foundation, and it is hoped that the results will inform the debate about whether and how the law might be reformed.

There are three main elements to the new study: a public attitudes survey; a court scrutiny study into how the courts investigate petitions alleging adultery or unreasonable behaviour; and a petition study which will explore how petitions are produced and with what effect on the parties.

Law Society concerns over court fee increases and survey on the impact of increases

The Law Society is concerned that the Government is proposing further court fee increases when increases introduced just six months ago have failed to deliver any tangible improvements in the court service or helped to protect access to justice.

Law Society President, Jonathan Smithers has said:

"Raising the fees further may render ordinary people's legal rights meaningless because they simply would not be able to afford to enforce them.

It is wrong in principle for the courts to make a profit for government.  Our members have told us that the government's fee increases will stop people being able to bring legitimate cases, particularly people on lower incomes."

The Law Society reiterated its concerns for higher fees for divorce claims.  The estimated cost of such proceedings to the courts, according to the Ministry of Justice's own figures, is £270, but the Government proposes to charge £550.  Mr. Smithers added that "It is disappointing that the Government is seeking to gain from the misfortune of people who are going through the difficult circumstances of divorce".

To address this, the Law Society has launched a survey seeking feedback on the likely impact of further court and tribunal fee increases currently under consultation by the Ministry of Justice.

The feedback will help the Law Society to understand, and explain to the Government, the likely impact, in practice, of the proposed increases on solicitors' work, clients and firms.  They have requested willing participants to complete a short online survey, which asks, among other things, for details about how they have been affected by previous fee increases, such as those implemented on 9 March 2015.  Alternatively, comments can be sent to . All responses will be treated in strict confidence.

Resolution responds to Law Commission consultation on enforcement of family financial orders

Resolution, which has 6,500 members, including family lawyers, mediators and other family justice professionals committed to a non-adversarial approach to family law and the resolution of family disputes, has responded to the Law Commission consultation on enforcement of family financial orders.

Resolution welcomes proposals to shift the onus onto the defaulting party and to streamline procedure.  Among others, Resolution makes the following points:

o Enforcement is complex and often uneconomical.  The system is "opaque and daunting", with disclosure being a particularly difficult area.

o With litigants in person on the up, so too will be the number of orders that are susceptible to enforcement issues.

o Litigants need "speedy access to the court", clear direction and improved guidance.

o A general application for enforcement for the court to determine the best way forward is the easiest option for unrepresented parties.

o All levels of judge should be able to make the appropriate order.

o The debtor should be required to file a short-form Form E.  Insufficient information about the debtor's circumstances is seen as the biggest barrier to creditors seeking payment.

o The starting point, where there is a joint account in the name of the debtor and a third party, should be that half of the balance belongs to the debtor.

o Even where a pension sharing order has already been made, a pension sharing order should be available as a remedy where there has been a failure to comply with another part of a financial remedy order.

o The existence of a pension scheme administered in England & Wales should be sufficient to found jurisdiction for the purposes of pension sharing, the parties no longer in this context needing to rely upon domicile and habitual residence.

o A creditor should no longer be required to seek the permission of the court for the enforcement of arrears over 12 months old, with the burden being shifted to the debtor to argue otherwise.

o Working towards "a single and robust regime" for the recovery of costs of enforcement proceedings with "significant costs penalties and potentially fines in addition to costs" would be welcomed.

o Orders disqualifying a debtor from driving and travelling outside the UK should be introduced, although views relating to the introduction of curfew orders were mixed.  "We are of the view that where there is non-compliance and the court is satisfied that the debtor, having had the opportunity to be heard, has the ability to pay, judges should exercise their discretion to impose one of these orders as a coercive measure, unless a more suitable enforcement method is available in the particular case."

o The possibility of the introduction of community services orders is raised.

o Arrears of periodical payments should be provable in bankruptcy.

o There should be greater focus on issues of enforcement and the consequences of non-compliance at the time of the initial order.

o There should be no possibility of enforcement proceedings being adjourned for the parties to explore other means of dispute resolution.  The likes of mediation are unlikely to be appropriate within the context of enforcement.

o The Government should "consolidate and increase" the information available to the public on the enforcement of family orders, the information being "designed to assist and be reasonably understood by all litigants".

Catholic annulments made easier

The Vatican announced on 8 September 2015 that the process for obtaining an annulment within the Catholic Church would be streamlined.

The Vatican set up a commission of church lawyers a year ago to look at reforms to the process for obtaining an annulment.  The Catholic Church teaches that marriage is forever and does not recognise divorce.  In order for married couples to separate, Catholics must have their marriage annulled by showing that it was flawed from the outset.

The reforms allow access to procedures free of charge and fast track decisions as well as removing automatic appeals.  They will take effect from 8 December 2015.  Previously, Catholics seeking an annulment needed approval from two Catholic Church tribunals.  The reforms will reduce this to one (although appeals will still be allowed in the relevant circumstances).  The new procedure will also allow local bishops to grant annulments directly if both spouses request it.  This means that an annulment could be granted in less than two months (compared to over 12 months under the previous procedure).

The new procedure should also reduce the costs involved for couples. The previous procedure was lengthy and complex, and experts were often required to guide the couple through the process.

Marriage rates collapse among middle classes, says The Marriage Foundation.

According to the Marriage Foundation, the middle classes are turning their backs on marriage. New analysis from the Family Resources Survey and the General Household Survey shows that the trend away from marriage, which was largely confined to low income groups prior to the 1990s, is spreading to middle income families.

84 % of middle earning families with young children were still marrying in 1994, but only 59 % were married in 2012, a drop of 25 % over 18 years.

Harry Benson, Research Director for the Marriage Foundation, who compiled the report, commented:

"While our previous report showed that marriage faces extinction among low earners, today's study shows that the middle classes are fast on course to follow them.

......While there are cohabiting couples who discuss their future, make the commitment and succeed in staying together, they are unfortunately rare.  Cohabiting couples make up only 19 % of parents but half of all family breakdown

Qualitative research into "unbundled" legal services

The Legal Services Board and Legal Services Consumer Panel recently commissioned Ipsos MORI to undertake qualitative research into "unbundled" legal services, and family law cases have been identified as one of the areas where such services are most common.

Findings have included:

o Reduced costs and the opportunity to offer greater control are the primary reasons why consumers choose unbundled services;

o Unbundling tends to be identified as an option during an initial meeting rather than being actively marketed; and

o Whilst no regulatory barriers to the practice are identified, concerns are raised around assessing capability, advising on limited information and the scoping of work.   

B. Case law update

W v S (Committal) [2015] EWFC B130 

This was a committal application relating to proceedings under Schedule 1 to the Children Act 1989. The relevance of the judgment reaches far beyond Schedule 1 applications.

In short, the father had failed to provide a fully completed Form E with supporting documentation as he had been required, by the Court, to do. Instead, he had only provided a partially completed, unsigned document (subsequently providing a signed back sheet) together with incomplete documentation.

As a result of the father's non-compliance, a First Directions Appointment (which was also to be used to consider an application for a legal services order) needed to be adjourned, with the court reiterating the need for the father to complete his Form E with all of the required accompanying documentation.

The father continued to fail to comply, despite the mother's solicitors setting out precisely what was required of him, giving him an opportunity to provide it and producing a schedule of alleged breaches.

It is clear, from the judgment, that the father's main concerns were over the confidentiality of the identities of his friends, family and associates.  These concerns, according to the father, had stemmed from a threat that the mother had made at a time when the father had ceased to provide for the child who was the subject of the proceedings.  He alleged that she had threatened to go to the Prime Minister and the investors in the father's company to show the level of his indebtedness in an attempt to cause damage to his standing.  The Judge referred to the fact that the father had told her that he would "not be blackmailed, in effect, by the procedure and that he [was] not going to throw his friends, family and associates to the wolves, to paraphrase what he said, by revealing their identities in, for example, bank statements", but went on to refer to the reassurances that the Court had given to the husband in respect of confidentiality, thereby addressing his concerns.

The Judge was clear that the committal proceedings were, primarily, a matter between him and the Court.  It was not for the mother to advocate.  The purpose of the proceedings was not to punish the father but to "secure compliance with court orders" to enable both a fair hearing and a fair outcome.  It was obvious that the court needed "proper information to make a reasoned and fair decision".

The Judge referred to the guidelines in Hale v Tanner [2000] 2 FLR 879 as to how the Court should exercise its powers.  She referred to the father's attitude as "extremely arrogant" and to the fact that he had made it clear to her that he had no intention of providing any further information.  The father was, therefore, "displaying a completely wilful refusal to comply".  The Judge was satisfied to a criminal standard that there had been a breach and that the breach had been wilful.  Whilst she believed, however, it unlikely that the father would change his mind, she nevertheless determined to give him one final chance.  She therefore gave the father a 14 day suspended sentence on the basis that, if he failed to provide a full Form E, with documents, by no later than 2 weeks before the date for the adjourned FDR hearing, he would be sent to prison.

Welch v Welch [2015] EWHC 2622 (Fam)
To use Mr Justice Holman's words, "the entangled complexities of the relationship between these parties and their litigation could be the subject matter of a book". 

In short, the marriage was a relatively short one, both parties having been married before.  The wife had been engaged in litigation against her previous husband during much of the marriage. Before the court, were a number of different applications.  District Judge Hess, in earlier judgments, had described the approach of the wife, both to the litigation with her former husband and the husband in this case as "obsessive", or "obsessional", and "irrational".

A final hearing had taken place before the District Judge in September 2014, at which time the wife had had no remaining assets or funds of her own.  Indeed, she owed her previous solicitors, Withers LLP, £414,000 as a judgment debt.  The District Judge concluded that had the husband been ordered to pay a lump sum to the wife, Withers "would be likely at once to seek to enforce it against the lump sum or capital so awarded." The District Judge had ordered that the husband purchase a property of a value not exceeding £250,000 in which the wife would be permitted to live for the rest of her life.  In addition, he had ordered spousal maintenance to top up the wife's earned income at the rate of £12,000 per annum.

The wife had subsequently applied for permission to appeal, an application which become firmly rooted in the proposition of there having been non-disclosure by the husband.  The application had been heard by Mrs Justice Roberts, who had concluded, in Mr Justice Holman's words, that "there had not been any significant non-disclosure, or lies, or misleading of the court".  Permission to appeal had, therefore, been refused.

The wife had then issued an application to vary the maintenance order (again based on non-disclosure by the husband) despite District Judge Hess having recorded in his original order that "the circumstances of the making of this order are such that a court would be very unlikely to consider favourably a variation application…".  At the same time as making this application, the wife had also applied for the District Judge to recuse himself on the basis that he had "some familiarity with" and had attended the same FLBA event at some point as Leading Counsel for the husband.  District Judge Hess had said that to "suggest that a judge should recuse himself…on the basis of having attended an FLBA event at the same time as a barrister… is a completely inappropriate suggestion and totally without merit".

District Judge Hess refused either to recuse himself or to vary the level of maintenance, and he commented that the wife was "every bit and possibly more vengeful, obsessive, irrational and unjustified now that she was [at the time of original final hearing]".  The District Judge then went further and ordered that the wife pay the husband's costs of around £70,000 and suspended the maintenance order, which was for around a similar amount in total (£12,000 per annum for six years).

Included among the "raft of applications" before Mr Justice Holman were an application to set aside the original order of District Judge Hess and appeals against District Judge Hess's refusals to recuse himself and vary the level of maintenance.  Other applications included an appeal against an order for possession, an application for the matter to be transferred to the RCJ, an application to strike out a cross-application by the husband for a civil restraining order and an application for permission to use documentation in proposed proceedings in the Queen's Bench Division and prospective criminal proceedings.

The wife relied heavily upon the original order and the subsequent order on the variation application, on an assertion that there had been a number of Barder events, and the Judge went through these in his judgment in some detail.  The Judge was not persuaded that any were Barder event, but he did make the point that the fact that the wife had subsequently been found not fit enough to work, whilst not being a Barder event as such, might nevertheless "justify reconsideration on a variation application" given that the original maintenance order had been needs-based.  The Judge went on to question whether the suspension of the order could continue, commenting that maintenance, in a case like this, was "about subsistence", and he made the point that he was not prepared to make an "all-embracing extended civil restraint order that would preclude even the making of a further application to vary".

The wife also continued to allege non-disclosure on the part of the husband, and the Judge referred to the fact that neither District Judge Hess nor Mrs Justice Roberts had been persuaded by this.  He referred to three specific issues raised by the wife before him but held that he was not satisfied that there were any grounds for successfully challenging and setting aside the original order, and he refused to allow the appeals against the subsequent orders relating to the variation and recusal applications on the basis that no errors by the District Judge had been identified and he was in agreement with District Judge Hess's comments in respect of the recusal.

The Judge found, however, that there might be grounds that would justify a further application to vary the level and/or the suspension of the maintenance order.  The matter should not be transferred to the RCJ but, rather, there should be judicial continuity with any further application made to District Judge Hess.  The Judge further ordered that there be an "extended civil restraint order" restraining the wife from any further civil application without the permission of the District Judge save in respect of any application to vary the level and/or the suspension of the maintenance order.

The Judge refused the wife's application for permission to use documentation disclosed in the proceedings in support of an action to commit the husband to prison for, for example, non-disclosure or any action in the Queen's Bench Division, but specifically excluded any restriction on the production of such documentation to the likes of the CPS in relation to the committal of a criminal offence.

Finally, in relation to costs, the Judge held that there should be no order as such an order against the wife would simply have been "futile" given her financial position.  He pointed out, furthermore, that the wife would, in the past, have benefited from legal aid and would have had protection from a costs order and would also have benefited from legal advice.  Whilst the proceedings had no doubt been largely the wife's responsibility, they might also have been in part due to the denial to her of such advice.   

DL v SL [2015] EWHC 2621 (Fam)  

This was a case concerning privacy and Mr Justice Mostyn's judgment can best be summarised by quoting the opening paragraph directly:

"It is my opinion that the law concerning the presence of the media in these private proceedings, which is contained in FPR 27.11 and PD27B, is to enable the press to be the eyes and ears of the public so as to ensure that the case is conducted fairly and to enable the public to be educated in an abstract and general way about the processes that are deployed, but does not extend to breaching the privacy of the parties in these proceedings that Parliament has given to them."

Accordingly, the Judge made an order preserving the privacy of the parties.

The Judge went on to consider the relevant law.  Whilst acknowledging the principal reasons for publicity, he made the point that publicity was not "an absolute principle" and referred to there being a "compromise, or balance, between open justice and the privacy of the individual", recognising the increased recognition that is given to the interests of children and the establishment of privacy as an independently actionable right courtesy of the enactment of the Human Rights Act 1998 and the incorporation of Article 8 of the European Convention.

The Judge asserted that there are some categories of court business that are "so personal and private that in almost every case where anonymisation is sought the right to privacy will trump the right to unfettered freedom of expression… where the subject matter of proceedings can rightly be categorised as 'private business'".  In matters of such business, anonymisation will generally be granted where requested.  Financial Remedy proceedings are "quintessentially" private business and therefore protected, the protection being deduced from four sources:

o FPR 27.10, which specifically provides for proceedings to be heard in private;

o The fact that the "personal and private information" extracted during the process cannot be used save for the purposes of the proceedings;

o Article 14 of the 1966 International Covenant on Civil and Political Rights, which provides (i) for the exclusion of the press or public when the interest of the private lives of the parties so requires and (ii) that judgments in matrimonial matters need not be public; and

o Judicial Proceedings (Regulation of Reports) Act 1926, which applies not only to the divorce itself but also to financial remedy proceedings.

The Judge indicated that he disagreed with the practice of Mr Justice Holman to list matters to be heard in public in the interests of transparency and that the difference in approach across the Division was not helpful and risked unfair settlements being concluded in the face of the possibility of publicity.  The Judge advocated the position being considered by the Court of Appeal so that a common approach could be established.

His Lordship also had to determine an application by the husband for an adjournment on medical grounds.  The judgment contains a useful summary of the relevant law.  The Judge referred in particular to the principal authority, Levy v Ellis-Carr & Others [2012] EWHC 63 (Ch.), quoting extensively from the judgment in that case.  Key points from that judgment included the following:

o "The decision whether to grant or to refuse an adjournment is a case management decision";

o "The decision whether or not to adjourn remains one for the judge"; and

o The medical evidence (the required contents of which are detailed) is tendered as expert evidence and it is then a matter for the court to "consider what weight to attach to that opinion", a medical report falling to be considered "as part of the material as a whole".

The Judge refused the adjournment on the basis, in short, that the husband was able to deal with the case, which the Judge described as "extremely simple" and that it was therefore not unfair for the matter to proceed.

Joy v Joy-Morancho and others (No 3) [2015] EWHC 2507 (Fam)  

This complex case involved a claim by the wife, (W), on substantial and varied assets situated in several foreign jurisdictions.  The husband, (H), attempted to prove that they did not belong to him but to a discretionary trust to which he was no longer a beneficiary.  He managed to convince the court that none of the assets that W sought actually belonged to him and that those assets that he did have were already encumbered.  As a result, the court did not transfer them to W but rather adjourned W's claims for lump sum and property adjustment orders in the event that H was reinstated as a beneficiary.

In addition, Singer J ordered that H should pay all of W's costs since May 2013, amounting to £334,000, as his conduct in trying to explain his financial circumstances amounted to "blatant dishonesty" and it would be "grossly unfair" to W not to regard his conduct as the "prime touchstone" in the case.  The costs judgment against the dishonest party was to act as a deterrent.

H and W met in the spring of 2001 when H was living in the Grenadines.  They married in February 2006 and had three sons, now ranging in age from 4 to 9.  The family moved to France in 2010. The couple separated permanently in December 2011, with W moving into rented accommodation with the children near to the former matrimonial home in France.  W commenced divorce proceedings in London on 25 July 2011.  Heavily contested proceedings took place in France about arrangements for the children.

The family had substantial wealth deriving from H's lucrative commercial airline leasing business.

The Trust
H had established the discretionary NHT trust (NHT) in the British Virgin Islands in December 2002.  H was a discretionary beneficiary of the trust, along with the couple's three children. W was never, nor could become, a potential beneficiary.  The trustee was Royal Fiduciary Group (RFG) and, more recently, Nautilus Fiduciary.  Tim Bennett (TB) was a director of both of these, as well as being an adviser to H.  NHT owned shares in an offshore company, LCAL, which was incorporated in June 2004 as the vehicle through which H conducted his business.  In 2013, H estimated the value of NHT's assets at £70 million, subject to £21 million of contingent liabilities in borrowing facilities with EFG Private Bank (EFG).  NHT's assets included a portfolio of vintage cars worth £20 million (the car portfolio).  W had no assets or income of her own. Neither the trustees of NHT nor the protector of NHT responded to the divorce proceedings by participating in them as parties or directly as witnesses.

Until 2009, H received an annual salary of about £120,000 from LCAL and bonuses.  In evidence, H claimed that he had "never taken a distribution from the trust" "or any of the companies or businesses within its structure" and had "only worked for the companies and got bonuses in relation to" his employment.

H and the children were potential beneficiaries of NHT until 2010, when the family moved to France.

H was advised that, for tax reasons, he and the children should be distanced from NHT and excluded from benefiting for a fixed period, until 2017.  A deed to this effect was entered into in August 2010.  LCAL ceased operations and H built up the car portfolio, buying and selling expensive vintage cars and showing them on the international circuit. The family's living costs were met from funds made available for H to draw on at EFG and guaranteed by NHT, and followed a deposit at EFG by H of $2.1 million.  H signed a counter-indemnity letter, undertaking to reimburse NHT for any amounts paid to EFG if NHT's guarantee was enforced.  H's overdraft at EFG was £18 million by 2013.

From 2010, the family's primary home was a French chateau, purchased in the name of a French property holding company (SCI), and funded by H's capital reserves and through the EFG debt facility.

H's Form E was served in July 2013 and did not annex a trust deed or any other documentation about NHT.  Bannister J, in the Commercial Division of the Eastern Caribbean Supreme Court, had made an order absolving TB of any duty to provide H with documentation and determining that H, as settlor, had no entitlement, in possession or reversion, to any trust assets and no right to require that any such entitlement be conferred on him.

In September 2013, EFG notified H that, because he had ceased to be a beneficiary of NHT from 2010, he could no longer make drawings and EFG demanded repayment of the sums loaned.  NHT paid $12 million in its capacity as H's guarantor and issued proceedings, claiming it intended to recoup around $7 million from H's personal assets in France and Switzerland, including a French chateau (worth c.£2.5 million), a 1928 Bentley (purchased in 2009 worth c.£472,000), a Piper Archer aircraft (worth c.£185,000) and Land in Switzerland (purchased in 2008 worth c.£1.7 million).

By late 2013, TB had already taken steps to exclude H permanently and irrevocably as a beneficiary of NHT, on the basis that the purpose of the trust was to benefit H's children and grandchildren and the trustees were obliged to protect NHT's assets from further losses which might arise because of the matrimonial proceedings.  In November 2013, a deed was entered into to effect the exclusion, although Bannister J (in the Commercial Division of the Eastern Caribbean Supreme Court) refused to approve it.

After November 2013, H's only source of liquid capital was his 1928 Bentley, which he pledged to his solicitors on account of costs and which became the subject of protracted interlocutory proceedings.  W sought the Bentley's sale so the proceeds could be applied towards discharging arrears of MPS that H had failed to pay.

The 1928 Bentley was eventually transferred to NHT for £650,000, with £550,000 paid to H's solicitors to release their charge over it and the £100,000 balance used towards reducing H's liability to NHT.  Following hearings in 2014, Singer J suspended H's liabilities for MPS and legal services provision and W's enforcement applications, pending the final hearing.

The parties' positions at the final hearing
W sought a lump sum pitched at £27m for a clean break, on the basis that the matrimonial assets were at least £54m and that H was not presenting a true picture of his financial position.  She sought a finding that H beneficially owned the £20 million car portfolio and argued that the lump sum should be secured, in part, on properties in London held by NHT, which had a value of £4.5 million.  W also argued that NHT was an ante-nuptial settlement, capable of variation under section 24(1)(c) of the MCA 1973.

H claimed that he had been impoverished by his exclusion from the trust and NHT's $7m claim against him, along with the legal disputes he was embroiled in.  In evidence, he stated he had "been caught out with an accelerated 'day of reckoning' when EFG called in the loans" (para 149).  He had managed to salvage sufficient funds, however, to pay the French child maintenance order of $3,600 and rent for his wife for the time being, but no more.  H argued he could not seek employment while living in France and was borrowing from friends and relatives.  He submitted that he could only pay modest periodical payments for W and the children for the foreseeable future, and no capital.

Singer J had to decide whether the situation described by H was accurate.  It was only after resolving where the truth lay on that primary issue of fact that he could proceed to consider what capital provision, if any, in the context of a global award should be made for W.

NHT as "nuptial"
When NHT was settled in 2002, on the facts, the parties were not in a relationship that was committed to the point of marriage.  They only contemplated marriage as a possible future contingency.  NHT was not a settlement made in contemplation of the parties' marriage and therefore lacked the nuptial element that would make it an ante-nuptial settlement, capable of variation.

Adjournment of W's claims for lump sum and property adjustment orders
The case had a paradoxical circularity.  The trustees were under a duty to protect the assets on behalf of the other beneficiaries, the children.  As W continued to claim her half, the trust had to continue to exclude H from any beneficial interest in the trust's assets.  If W failed in her claim, however, it was quite possible that H would once again become a beneficiary of the trust (although his case was that he had irrevocably ceased to be a beneficiary).

Singer J found that the car portfolio was owned beneficially by NHT although on the facts, there were indicators that the reality was that H owned it.  He also found that there was no internal accounting mechanism within NHT showing H's personal expenditure and his expenditure on behalf of the trust.

Singer J was concerned about the credibility of both parties, stating that W's evidence needed to be approached with a "degree of skepticism" but H was guilty of "blatant dishonesty".  He denounced the management of NHT and TB's role by stating that "Their position is an elaborate charade, the stage management of which has been conducted ruthlessly and without regard to cost.  I do not need to speculate how TB plans to re-establish the access H has to NHT…but I am confident that when the time is ripe…TB will find a way".

Singer J therefore made the order to adjourn W's claims for lump sum and property adjustment orders.  It was certainly foreseeable that H would be allowed to access the millions held in NHT and W would then be in a position to restore her surviving applications for capital provision.  A supervisory regime was imposed to prevent H dealing with assets without W's knowledge.  Singer J attributed H with an earning capacity of £200,000 a year and awarded W MPS, followed by annual periodical payments, of £120,000.

Singer J ordered that H was to pay all of W's financial remedy proceedings costs since May 2013 (excluding those where a no costs order had been made) on an indemnity basis.  Singer J took H's "outrageous conduct" into account, but did not impose a punitive element in making the costs order.  He said that "the case collusively advanced by H and TB was a rotten edifice founded on concealment and misrepresentation and therefore a sham, a charade, bogus, spurious and contrived.  I do not shrink from applying to it the description fraud, a deliberate design to deceive, inflicted on W and on the court, and found by the court so to be".  Singer J explained that "W has failed in a number of the specific applications she has made, but in light of my findings it is perhaps to be anticipated that in the overall balance it is H who may face a substantive costs order".

At the start of the case, there had been lengthy legal arguments surrounding jurisdiction with H unsuccessfully trying to convince the court that he was domiciled in Spain.  Singer J outlined that H and TB "engaged over a number of years in investigating how best an imaginative but fundamentally contrived and false case on his domicile could be made initially to the English tax authorities, and subsequently persisted in the in-court domicile enquiry". Singer J commented that "Slippery manoeuvres just as much as slippery slopes can be expected to bring out the truth of Newton's third law of motion: For every action, there is an equal and opposite reaction". In other words, H brought a lot of W's legal response upon himself.

Singer J ordered that the sum of £334,000 was to be paid within 14 days.

Appleton v Gallagher & Ors [2015] EWHC 2689  
This case concerned an order restricting the reporting by the press of the financial remedy proceedings between Nicole Appleton and Liam Gallagher.

Following hot on the heels of DL v SL [2015] EWHC 2621 (Fam), Mostyn J reiterated his view in that media reporting of financial remedy proceedings should be restricted and such proceedings heard in private.  He explained that this was his interpretation of Parliament's intention and explained that this was illustrated by the way Family Procedure Rules (FPR) 27.10 - 27.12 were drafted.  The FPR rules essentially permit journalists to attend a hearing held in private without access to the documents.  Mostyn J stated that, if the parties are famous, their identities and the fact that they are going through financial remedy proceedings may be reported.  He pointed out that this information is often already in the public domain.

Mostyn J considered the intention of the rule change in April 2009 permitting the media access to family law proceedings.  He considered that this change was so that the public could understand how children law cases, particularly care proceedings, were conducted.

Mostyn J concluded that the media's role was strictly as a watchdog.  He also commented that financial remedy proceedings, unless mainly relating to the maintenance of a child, are not "children proceedings" within FPR 25.2(1).  This means that the trial court has the power to restrict reporting without reference to the High Court, as is required in children law proceedings.
Mostyn J stated that it was for O'Dwyer J, who had heard the substantive financial remedy proceedings relating to Mrs Appleton and Mr Gallagher, to consider whether his judgement should be reported and, if so, whether the parties' names should be made anonymous.

Mostyn J, having given permission to appeal, once again called on the Court of Appeal to provide guidance about the hearing of financial remedy proceedings in public given the divergence of judicial approach in the High Court.  It will, therefore, be a case of "watch this space" to see if this case is appealed and whether further guidance is provided.

Haddad v Haddad [2015] EWHC 4862 (Fam)
The proceedings arose out of, and related to, an order made in November 2011. The order required the sale forthwith of the matrimonial home ("the property") at the best price reasonably obtainable, Both parties had lived in the property for many years and, at the time of the hearing before Holman J, continued to live there (notwithstanding the divorce between them).

Since the 2011 order, there had been a "huge wrangle" with regard to the precise content of the substantive order for financial remedy and with regard to the sale and, in particular, attaining the best sale price.

The 2011 order had provided that, after deduction of the normal costs of sale, the net proceeds should be applied:

1. 52.7% as to the respondent wife; and then

2. The balance to the applicant husband.

The husband sought to vary that order, effectively pursuant to the "slip rule", to provide that the wife should receive 2.7% of the net proceeds of sale and then the balance be divided between the parties.

The case came before District Judge Walker in July 2014 and the 2011 order was not varied.  Further, District Judge Walker ordered that the property be sold forthwith to the buyer obtained by the wife for £620,000, rather than the husband's potential buyer for £625,000.  The hearing before Holman J was in relation to the husband's application for permission to appeal that decision.

At the time of the proceedings, there were two prospective purchasers ready and willing to exchange contracts for £635,000.   The husband also said that he would like to match those offers and purchase the property.

Holman J considered that "the final intention of the judge definitely was that the wife should receive 52.7% of the net proceeds of sale, and the husband the balance.  That is what the order itself says and provides, and there is no accidental slip or omission.  Insofar as the application for permission to appeal relates to that aspect, it is, to my mind, completely hopeless."

Holman J also directed that an order be made as to the sale price, not by way of appeal, but in further exercise of the general powers of the court.  The conveyancing solicitor was, as soon as possible and simultaneously, to send contracts to each of the two prospective purchasers and the husband.  The contract would be for a gross selling price of £635,000, with completion 28 days after exchange of contracts.  The sale was to be to the first person who signed and exchanged the contract.

Holman J further directed that both parties had to vacate the property by no later than 5pm on the day immediately preceding the contractual day of completion.  However, if the husband was the first person to sign and exchange contracts (and thus the one purchasing the house), he would not need to vacate.

6 October 2015