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Finance and Divorce Update, January 2017

Claire Molyneux, Senior Associate and Naomi Shelton, Associate, both of Mills & Reeve LLP, analyse the news and case law relating to financial remedies and divorce during December 2016.

Claire Molyneux, Senior Associate and Naomi Shelton, Associate, Mills & Reeve LLP 

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

A. News in brief and
B. Case Law Update

A. News in brief

Justice Committee considers family law implications of Brexit
Philip Marshall QC, Chair of the Family Law Bar Association, Daniel Eames, Chair of Resolution's International Committee and Dr Ruth Lamont, Senior Lecturer in Family and Child Law, University of Manchester, gave evidence to the Committee.  Daniel Eames said:

"Brexit is going to have a huge effect on family law, especially for those families whose parents are of different EU nationalities. In 2015 some 27.5% of children born in England and Wales had a foreign mother. There will also be implications for British expat families living in the EU unless agreements are reached to protect them.

At the moment, a divorce granted in England (and Wales) is automatically recognised everywhere in the EU (except Denmark). If the EU divorce regulation, known as Brussels IIa, no longer applies then the English Court will have to decide whether it, or a competing EU jurisdiction, is the most appropriate forum. 

This will be expensive and complex for the litigant and it also means that there is no guarantee that the English order will be recognised in the other EU state. There could also be cases where there are conflicting decisions.

Theresa May's proposed Great Repeal Bill doesn't work for family law.  It requires reciprocity because other EU states won't give precedence to our proceedings if they are issued first in time, and won't recognise our judgments. At the same time, we will be stuck with some of the limitations of EU law without any of the benefits.

We could also potentially lose laws which help with the recognition of domestic violence orders in other EU states and with the automatic enforcement of children orders and maintenance orders made by consent.

The government needs to negotiate new agreements with the EU. If it does not then Brexit will have a huge effect on international families living in UK, not to mention the already under-resourced family courts and a whole generation of family lawyers who have only ever known EU regulations."

Legal aid statistics
The latest Ministry of Justice statistics show a rise in applications for and grants of legal aid.  From the beginning of 2016, there has been a steep increase in both applications for civil representation and numbers of certificates granted in respect of private family law matters where applicants can show that there is a risk of domestic violence or child abuse. Comparing July to September 2016 with the same period of the previous year, applications were up 26% and the number granted (on decision-based timing) were up 51%.

The proportion of applications granted remained steady at around 70% from the inception of this type of application until the end of 2015, but has increased to over 75% in the three quarters since then. Between 1 April 2013 and 30 September 2016 the Legal Aid Agency received almost 28,000 such applications. During this same period just over 19,000 certificates were granted.

The number of mediation assessments in the latest quarter was 17% down compared to the same period in 2015 and currently stands at about half of pre-LASPO levels.

For the MoJ bulletin click here.

Department of Work and Pensions research findings into CMS arrangements
The Department for Work and Pensions has published four pieces of research as part of a 30-month review which shows the majority of separated parents using the Child Maintenance Service are managing child support payments themselves.

The research also shows that:

• almost seven out of ten parents (68%) with a Direct Pay arrangement – meaning the non-resident parent is paying their child maintenance directly to the receiving parent rather than via the CMS – had their arrangement in place three months after receiving their child maintenance calculation from the CMS.

• a year after setting up their arrangement, 62% of parents using the Direct Pay service still had that arrangement in place, and 19% had another type of maintenance arrangement.

• more than half (56%) of parents who made an enquiry into the CMS and then did not proceed with an application, or closed an application, said they intended setting up an alternative arrangement with their ex-partner – normally a family-based arrangement.

• nine out of ten of those family-based arrangements were financial arrangements and 86% of those were described as effective.

For the press release and links to the full report click here.

Competition and Markets Authority concludes competition in legal services "not working well"
After the completion of a year-long study into the legal services sector, the Competition and Markets Authority ("CMA") has concluded that competition in legal services for individual consumers, including family law, is not working well.  In particular, there is not enough information available on price, quality and service to help those who need legal support choose the best option.  To address this, CMA has set out a package of measures which includes:

• a requirement on providers to display information on price, service, redress and regulatory status to help potential customers. This would include publishing pricing information for particular services online (only 17% of firms do so at present);

• facilitating the development of comparison sites and other intermediaries to allow customers to compare providers in one place by making data already collected by regulators available. At present only 22% of people compare the services on offer before appointing a lawyer; and

• encouraging legal service providers to engage with feedback and review platforms to ensure that customers can benefit from the experience of others before making their choice. 

CMA has pledged to re-evaluate progress and the impact of the recommendations in three years' time and intervene further if progress is not satisfactory. For the Final Report click here.

Law Commission publishes recommendations on enforcement of family financial orders
The Law Commission has recommended a package of reforms to make enforcement more effective, accessible and fair.  These include new powers for the courts to obtain information about debtors, making a wider range of assets available for enforcement purpose and new powers for the courts, in appropriate cases, to apply pressure to debtors who can pay but are choosing not do so, by disqualifying debtors from driving and prohibiting them from travelling out of the UK.  For the report, click here. For a summary, click here.

Judges should be able to prevent litigants in person inundating the court with emails
Lady Justice King has called for judges to be empowered to restrict the means by which litigants in person communicate with the court.  She said that judges must be entitled, as part of their general case management powers, to put in place, where they feel it to be appropriate, strict directions regulating communications with the court.  Failure to comply with such directions would mean that communications that they chose to send, notwithstanding those directions, would be neither responded to nor acted upon. 

The comments were made in Agarwala v Agarwala [2016] EWCA Civ 1252.  

Divorce rate continues its downward trend
There were 111,169 divorces in England and Wales in 2014, a decrease of 3.1% compared with 2013 and a decline of 27% from a recent peak in 2003, according to the latest release of divorce figures by the Office for National Statistics.

Nicola Haines, on behalf of the Office for National Statistics, said:

"Compared with 2004, divorce rates in 2014 were lower for all age groups except women aged 55 and over. Likely factors include increased cohabiting and increasing age at first marriage. Previous research indicates a higher risk of divorce among those marrying at younger ages, whilst cohabitation may be reducing the number of weaker relationships progressing to marriage."

Lord Chief Justice raises concerns about paid McKenzie friends and litigants in person
At his annual press conference, when asked whether there was a problem with litigants in person, particularly in the Court of Appeal, Lord Thomas, the Lord Chief Justice of England and Wales said:

"Yes, it is a problem across the entire system. … The problem is we have now far too many. In the Court of Appeal, the cases take up much longer. We have taken steps to try and deal with them by… particularly people who have huge quantities of paper and bring them along and we have a very valuable core of judicial assistants. Where the real problems lie, I think, are in the family courts. One of the things that is concerning us, and I think the concern has arisen recently, is the withdrawal of legal aid and legal assistance from private law family disputes."

He also expressed concerns in respect paid McKenzie friends, albeit in relation to crime and immigration proceedings.  He said:

"I think paid McKenzie friends introduces a prospect of having yet another part of a professional who is coming in to help litigants . . . I have seen them, who give legal advice that is simply wrong and you are preying on vulnerable people and that is why I am very, very cautious about payment to non-lawyers who try and assist vulnerable people. There is a real risk of exploitation or of giving advice the person wants to hear, not advice that they do not want to hear."

Certain family court hearings to take place in public, in radical trial of the Family Division
The Guardian reported that the President of the Family Division, Sir James Munby, is to continue far-reaching reforms to promote transparency in the family law system in 2017 by launching a trial in which certain types of family law hearings are to be held in public.  For the Guardian's report click here.

President of the Family Law Division publishes statement promising a review of the cross-examination of vulnerable people
In a statement published on 30 December 2016, the President of the Family Division, Sir James Munby, commented on the issue of unrepresented alleged perpetrators of domestic violence cross-examining their alleged victims during family proceedings.

The President's statement was in part in response to media coverage in The Guardian highlighting the issue (and is reproduced below).

"I have been raising since 2014 the pressing need to reform the way in which vulnerable people give evidence in family proceedings. I have made clear my view that the family justice system lags woefully behind the criminal justice system.

I have expressed particular concern about the fact that alleged perpetrators are able to cross-examine their alleged victims, something that, as family judges have been pointing out for many years, would not be permitted in a criminal court. Reform is required as a matter of priority. I would welcome a bar. But the judiciary cannot provide this, because it requires primary legislation and would involve public expenditure. It is therefore a matter for ministers. I am disappointed by how slow the response to these issues has been and welcome the continuing efforts by Women's Aid to bring these important matters to wider public attention.

I am currently considering the review of Practice Direction 12J undertaken by Mr. Justice Cobb, who met with Women's Aid during the course of his review. I expect to make decisions on the review early in the New Year."

Almost 26,000 people seek domestic abuse advice via the BBC helpline owing to storylines in The Archers and BBC1 documentary, Behind Closed Doors
The story of Helen Titchener's abuse by husband Rob in the BBC's The Archers covered issues of sexual abuse, emotional distress and self-harm which culminated in a storyline of the victim, Helen, being acquitted of attempted murder.  Coverage of these topics by the BBC prompted 24,400 people to visit the service's webpages on domestic violence and more than 1,350 people to call for advice during 2016, according to the BBC.  A donation page inspired by The Archers' storyline has raised more than £135,000 over seven months in support of the UK national charity, Refuge, that provides information and advice to victims of domestic violence.

B. Case Law Update

Divorce cases

Adepoju v Akinola [2016] EWHC 3160 (Ch) (Master Matthews) 7 December 2016
This case concerned a probate claim relating to whether the defendant ("D") was lawfully married to the claimant's mother and it will therefore be of interest to family lawyers.  The claimant's mother had died intestate and her sizeable estate comprised a number of properties both here and in Nigeria.  The parties were essentially disputing their status as beneficiaries and administrators of the estate. 

The claimant's ("C") case was two-fold:

• D and her mother had never lawfully been married; and

• any marriage that took place was polygamous, D having never divorced his previous wife. 

She argued that she was the next of kin and, as such, should be granted Letters of Administration. 

D submitted that there had been a valid marriage and that he was the next of kin.  He accepted that he had been previously married and stated that his marriage to the deceased had been a customary marriage which had taken place in Nigeria in 2006 and a child had been born out of that marriage. 

The main issue before the court was whether D and the deceased had been married in Nigeria in 2006.  But, in order for the court to decide whether any marriage was valid, it was also necessary for the court to decide whether D's earlier marriage had still been in existence in 2006.  That was relevant because s.11(d) Matrimonial Causes Act 1973 ("MCA 1973") provides that where, after 31 July 1971, a polygamous marriage is entered into outside England and Wales, and either party is domiciled in England and Wales, the polygamous marriage is void. 

Held: The marriage between D and the deceased was found to be void.  Letters of Administration were to be granted to a third party. 

The Master had a difficult task in that he found that both witnesses were not satisfactory.  However, he made three significant findings, that:

• both parties had a domicile of choice of England;

• a marriage ceremony (in accordance with local customary law) had taken place between D and the deceased; and

• D had not established that he had been divorced at the time the "marriage" to the deceased took place.

The evidence on the issue on whether a customary marriage had taken place indicated that it was more likely than not that a marriage ceremony had taken place.  As C had been present at that ceremony, the Master concluded that she had deliberately lied about the events of that day.  This conclusion would have serious repercussions for C. 

However, the absence of evidence was an important factor in relation to the second issue – the divorce between D and his first wife.  The defendant simply did not adduce sufficient evidence to establish that a divorce had taken place.  This played a major part in the Master's decision that D had not established that he was divorced.  For example, D had not called his first wife to give evidence to the court.  The burden had been on D to prove the divorce and on the scant evidence provided, the Master was not satisfied that there had ever been a divorce.  Therefore, the natural conclusion was that any marriage between D and deceased was void.  Consequently, D was not a widower entitled to Letters of Administration nor to a share of the deceased's estate under the intestacy rules.  The Master concluded that, at this stage, and in light of the way in which D had pleaded his case, he could make no grant under a constructive trust basis, nor as a result of a child being born to D and the deceased. 

Insofar as the declarations that C sought, were concerned, the judge concluded:

• s.58(5) Family Law Act 1986 prevented a declaration being made that D and the deceased were not married;

• it would not be right to make a declaration that C was the next of kin before the other child's position had been properly considered; and

• there were claims that D could bring that he was entitled to share in the estate on the basis of a constructive trust argument.  This had not yet been pleaded and so it was too early to make a declaration that D had no interest in the deceased's estate

Insofar as C's claim to Letters of Administration was concerned, the Master noted that the usual course in these circumstances would be for the deceased's daughter to receive the grant.  However, the facts of this case were not normal.  The parties had accused each other of interfering with the estate and of trying to exclude the other.  There was mistrust and suspicion and it was extremely relevant that the Master had found that C had lied to the court; her evidence had to be independently corroborated before it could be accepted.  Taking into account these circumstances, the Master decided that it would not be right to grant Letters of Administration to C.  Further directions would be given on the selection and appointment of an appropriate person to administer the estate in the event that the parties could not agree this themselves.

Finance cases

AB v FC [2016] EWHC 3285 (Fam) (Mrs Justice Roberts) 19 December 2016
The husband ("H"), a French national aged 28, was a professional footballer.  The wife ("W") (also a French national) was 31 years old and had had a previous career as a beautician.  Despite their marriage being short-lived (19 months in total), they had a child aged almost two.  Their relationship had lasted for about five years. 

H's professional career had started in England where he had played for a Premier League team.  He had recently transferred to a European club where he was contracted to stay until June 2019.  After that, his future was uncertain although press reports speculated that his future was bright.  His current club had already indicated a willingness to open negotiations about renewing his contract. 

The couple had met in 2011 and had set up home in the north of England.  Despite H's earning abilities, the couple had never bought a property together preferring to rent.  The former family home was a large property with five reception rooms, four bathrooms and a gym that H paid £52,000 a year in rent for. 

The family had enjoyed a high standard of living throughout their relationship.  Indeed, their spending on clothes and holidays had meant that, even with H's high earnings, there was virtually no capital in this case. 

The pot of assets contained:

• a property in France with net equity of c.£86,000.  This had been purchased by H prior to the marriage as a home for his mother.

• a flat and two parking spaces in France with no equity.  These were also pre-marital assets purchased by H which provided a modest rental income;

• a condominium in Miami which was still being built.  This had been purchased off-plan by H prior to the marriage for $963,900.  Under the terms of the purchase agreement, H had paid about half of the cost.  The balance was due by the end of 2017 when the construction work would be completed.  If H defaulted on this payment, he would forfeit the sum already paid;

• £95,000 in cash following the sale of a property owned by H in Manchester; and

• a modest Professional Footballers' pension.

H was earning £1million a year made up of salary and bonus.  He was due £85,470 in respect of a contractual bonus payment.  It was accepted by both H and W that H could not continue to earn at this level indefinitely.  He was likely to have another four or five years' worth of high earnings.  Post-Brexit, H's counsel urged caution in forecasting a consistent income at this level due to the volatility of the exchange rate and the weakness of the pound. 

W's cash resources were nil and she was dependent upon H to fund her and their child's lifestyle.  She had no income of her own and a limited earning capacity having been out of the workplace for about six years. 

Both had substantial liabilities.  H's totalled £215,000 which included £60,000 he owed to his solicitors.  W owed £30,000 to her current solicitors and there was an equitable charge in favour of her previous advisors for £144,000. 

Following the breakdown of the marriage in or around 2015, W had issued her petition and Form A.  By this time, H had moved out of the family home and was about to move to Europe to take up a position with his new club.  W relocated to north London.  Unable to agree interim financial support, W secured an MPS order and a legal services payment order for £30,000 a month divided 50:50 between MPS and legal costs.  H was also ordered to fund the £11,500 deposit on W's new rented home in Finchley.  There then followed an unsuccessful private FDR. 

By the time of the final hearing, W's open proposal was:

• that the £95,000 in cash to be paid to her;

• H to complete the purchase of the Miami property and then that property to be sold immediately with the net sale proceeds being split 80:20 in W's favour (subject to the condition that if W did not receive £650,000, H would make up the shortfall);

• H to pay periodical payments of £23,500 a month with no s.28(1A) bar;

• H to pay £36,000 a year in child support;

• each to retain their own assets and be responsible for their own liabilities; and

• no order as to costs.

W was effectively looking for £318,000 a year in global maintenance and the funds to allow her to purchase a property worth £1.7million based on her obtaining a £1.1million mortgage with mortgage payments (c.£11 - 14,000 a month) being made from her spousal support.  A mortgage of this size would require W putting down a 35% cash deposit. 

What was significant about the proposal was the way in which W developed her case in relation to her future income needs.  A number of budgets had been produced with the most recent pitching those needs at £478,696 a year (including mortgage finance).  Analysis of the couple's spending suggested that £1.9million had been spent on living costs during the preceding 22 months. 

H's open proposal was based on there being no available capital to purchase an owner-occupied property for W (and H having no mortgage raising capacity in this jurisdiction) and comprised:

• both parties to continue renting property;

• H to pay £120,000 a year (on a joint lives basis but reviewable on the earlier of seven years or a material reduction in H's total net annual income) in spousal periodical payments from which W would be obliged to meet any rent due;

• H to pay £24,000 a year in child support;

• H to pay W a lump sum of £150,000; and

• each to retain their own assets and be responsible for their own debts

The fundamental rationale for H's offer was the absence of any marital acquest, the shortness of the marriage and the fact that the couple had never owned a family home. 

Although H was critical of W's budget generally, he was particularly critical of W "stockpiling" capital stating that she was looking to fund a lavish lifestyle both now and in the future – a lifestyle that H argued was both unreasonable and unrealistic.  He also submitted that W's open proposal was unworkable.  For example, no provision had been made for stamp duty. 

Mrs Justice Roberts agreed with H that W's paper aspirations and her fundamental understanding of the proposal she was putting forward were "poles apart".  Given the levels at which W had been spending, Roberts J noted that to make her own proposal work, W would have to completely recalibrate her spending in order to manage her finances, particularly with a mortgage of £1.1million. 

Roberts J concluded that fairness to both parties remained the objective, even in a case concerned only with future needs. While she would expect W to work in the future, she was unlikely to earn very much, whereas H would continue to earn £900,000 a year until 2020. Although the standard of living had been high, the shortness of the marriage reduced W's entitlement to expect the same in the future. Also the principle that the longer the period during which W's needs should be met, the less likely the court will assess those needs on the basis of the standard of living, applied equally to assessing W's housing needs as income needs. Accordingly, W did not require a property akin to the family home. 

However, despite the absence of marital acquest, Roberts J found that W was entitled to the security of owning a home given her substantial on-going contributions to the family's welfare.  The judge pitched W's housing need at £700,000. 

This could be achieved by including an element of stockpiling in the joint lives spousal maintenance awarded, to be used by W to pay down a mortgage. There should be a review after seven years or earlier, if there was a material reduction in H's income.

The final award was structured as:

• H to pay periodical payments (index-linked and on a joint lives basis subject to the review mentioned above) of £164,000 a year - £80,000 of which would be earmarked for mortgage repayments;

• H to pay child support (index-linked) of £36,000 a year plus nursery and pre-school costs up to the point of the seven-year review;

• H to pay W a lump sum of £32,500 towards W's debts; and

• the Miami property to be sold with the net sale proceeds to be split 64:36 in H's favour with W to receive no less than £270,000

Scatliffe v Scatliffe [2016] UKPC 36
(Lady Hale, Lord Wilson and Lord Carnwath) 12 December 2016

This judgment concerns an ancillary relief case on divorce in the British Virgin Islands, where the applicable legislation is largely akin to the Matrimonial Causes Act 1973.

The husband ("H") was aged 70 and in poor health.  W was aged 63.  They had married in 1971 and had had two children (H also had two children from a previous marriage).  In 2009, the marriage broke down.  W had remained in the family home. 

The governing statute was the Matrimonial Proceedings and Property Act 1995 ("MPPA 1995").  Section 26 (1) MPPA 1995 sets out, like s.25(2) MCA 1973, specific matters to which the court must have regard in determining whether and how to exercise its powers.  Most notably, the MPPA 1995 requires regard to be had to "the income, earning capacity, property and financial capacity which each of the parties… has…" and "contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home…". A fundamental difference between the two statutes is the continued inclusion in the concluding words of s.26(1) MPPA 1995 of the need for a court to exercise its powers "so as to place the parties, so far as it is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other".

Lord Wilson, who drafted the Privy Council's opinion, noted that principles identified in case-law in relation to ss.23-24 MCA 1973 were of persuasive authority in relation to the exercise of powers under ss.23-25 MPPA 1995.

At first instance, Mrs Justice Hariprashad-Charles had found that during the marriage H had worked hard and had entered into successful property ventures but that given his age and disability he could now no longer work. She found that W too had made a full contribution to the family, first through full-time employment, then by assisting H in his businesses and also by being a mother and home-maker. Whilst she had employment at the time of the hearing, she was by then aged 58.

Hariprashad-Charles J found that there were three properties that should be classified as matrimonial property and to which the sharing principle should apply. She ordered that:

• Parcel 38, valued at $600,000 be transferred from H to W;

• Parcel 195, valued at $350,000 in its current state and $750,000 once completed, be subject to H's life interest and then the property of the parties' children; and,

• Parcel 147, worth $425,000 (slightly complicated by the fact that the land on which it was built was owned by the Crown), be retained by H along with its rental income of $40,000 a year.

In addition, there was a fourth property, Parcel 174, vested in the joint names of W and one of the parties' adult children, which was found by the judge to be held on trust for the child absolutely.

Finally, shortly before the breakdown of the marriage, H had received a payment of $219,000.  This was found to be a matrimonial asset but no lump sum order was made in W's favour that reflected her entitlement to share in it.  On appeal, the Court of Appeal held that the judge had erred and amended the award to order H to pay W $50,000. 

In total, W received $657,000 from the pot of assets and H received $944,000.  H appealed.

Lord Wilson noted that, the first instance decision (as varied) "was an entirely reasonable sharing of the matrimonial property".  It gave each of the parties a home in which they could live for the rest of their lives and a rental income on which they might subsist and it appeared to represent a fair outcome having regard to all of the circumstances and the concluding words of s.26(1) MPPA 1995.  However, there were two reason why the appeal was more difficult than it first appeared:

• the judge had found that H had other non-disclosed assets, based in part on H's refusal to disclose his bank statements; and

• the judge had not taken into account of all of H's disclosed assets: in particular, a two-storey guesthouse that H had inherited from his parents.

The Privy Council noted that the failure of the local courts to take account of this property "may betray a serious misunderstanding about the treatment of "non-matrimonial property", indeed possibly about the very meaning of the phrase, in the determination of applications for ancillary relief under the 1995 Act."  At paragraph 25, the Privy Council set out ten points of guidance on this point including:

• Where neither party has any interest in an asset, it should not be taken into account. It is confusing for it to be called "non-matrimonial property".

• Non-matrimonial property is property owned by one of the parties, whereas matrimonial property is owned by one or both of the parties.

• Under the relevant legislation, the court must have regard to the "…property and other financial resources which each of the parties…has or is likely to have..." and this therefore includes non-matrimonial property.

• In an ordinary case, the proper approach is to apply the sharing principle to matrimonial property and then to consider whether this will result in an appropriate overall disposal. The court should specifically consider whether needs or compensation justify additional adjustment, by the transfer of non-matrimonial property from one party to another.

Finally, H complained that the Court of Appeal had given its reasons orally and in only a few sentences.  The Privy Council reiterated that if a finding has been made in the lower court that an appellant has failed to disclose assets, unless he can dislodge that finding, his prospects of a successful appeal are remote (Re Portsmouth Football Club Ltd, Neumans LLP (a firm) v Andronikou [2013] EWCA Civ 916) 

In conclusion, the Privy Council advised Her Majesty that H's appeal should be dismissed and that W's limited costs be paid by him.

Robert v Woodall [2016] EWHC 2987 (Ch)
(Mr Robin Dicker QC sitting as a deputy High Court Judge of the Chancery Division) 25 November 2016

This was an unsuccessful renewed application for leave to appeal the strike out of the claim of a trustee in bankruptcy ("T") under ss.23 and 24 MCA 1973. 

The strike out order was made by Mr Registrar Jones on 15 March 2016 ([2016] EWHC 538) on the grounds that rights created under the MCA 1973 may only be pursued by the spouses themselves and that "the rights do not extend beyond joint lives".

The bankrupt husband ("H") had committed suicide in November 2014.  T asserted that H's spousal claims under the MCA 1973 had vested in him as part of the bankrupt's estate, being "property" under s.436 Insolvency Act 1986. Accordingly, T had issued claims under the MCA 1973 in the Bankruptcy Court against H's former wife for a lump sum or property adjustment order for the benefit of H's creditors.

Mr Robin Dicker QC succinctly set out why T's application could not proceed:

• The death of H brought to an end his rights under the MCA 1973; and

• T could have no greater claim than that of H.

He went on to reject the suggestions that a court could have regard to the s.25 factors, despite the death of one spouse, interpreted for the sole benefit of the deceased's creditors or that the Registrar's judgment had found the compromise of spousal claims to be a disposal of property. 

In completing his review of the relevant law, the judge confirmed that his judgment did not affect a case where, for example, an order for secured provision had been obtained prior to the death of a spouse, nor where an order against a bankrupt results in assets being obtained as after-acquired property under s. 307 IA 1986: