Speaking with the Judge

LEGAL BUZZ

RECENT FAMILY LAW DECISIONS

 

MAINTENANCE

Wright v Wright 2015 EWCA Civ 201 Court of Appeal (Pitchford LJ)

Pitchford LJ had to decide, for the purpose of granting leave to appeal, whether there was a real prospect of establishing HHJ Roberts gave inadequate justification for her conclusion that the husband should no longer be expected to make any provision for the W during his postponed retirement, as contemplated in the 2008 court order.    Pitchford LJ found there was not.

SS v NS (Spousal Maintenance) 2015 2 FLR 1124

Mostyn J gives an erudite recap of the law of "needs" based awards - spousal choices which gave rise to hard needs

He confirmed that there was no test of exceptionality to extend a term order.

If in doubt, make the decision in favour of the economically weaker party.

Waggott v Waggott 2018 EWCA 727

The judge considers how far the wife should use her capital share to meet her future income needs.

C v C 2018 EWHC 3186 Roberts J

The capital share of the marital acquest was sufficient to meet the income needs of the wife and she was not awarded any post separation asset accumulation by the husband

BD v FD 2014 EWHC 4443  - Maintenance Pending Suit

Moylan J found the interim budget to be greater than that necessary to maintain what had been the marital standard of living and accordingly found it excessive.

NUPTIAL AGREEMENTS

Radmacher v Granatino 2010 [2010] UKSC 427

The Supreme Court analysed the situations in which a court would implement agreements reached between parties to a marriage.  It recognised the autonomy of adults freely to enter informed agreements as to their finances and discusses the situations in which such marital arrangements will be upheld by the courts

Gray v Work 2015 WEHC 834  Holman J

Texan couple's post nuptial agreement allowed the W to elect to pursue financial remedies in divorce in preference to the compensation provided for in the agreement.  However, had the agreement not allowed this, as on H’s interpretation, the judge would have found the PNA to be unfair and also that the W could not possibly have understood or been advised as to its import or she would not have signed it.

Hopkins v Hopkins [2015] EWHC 812 (Fam)

This case was an unsuccessful attempt by W to set aside post nuptial agreement on grounds of duress or undue pressure.  Mr Cusworth QC sitting as a deputy High Court Judge reviewed the authorities, including Lord Phillips in Radmacher (formerly Granatino) v Granatino [2010] UKSC 42, Ormrod J in Edgar v Edgar [1980] 1 WLR 1410 and  Baron J in NA v MA [2006] EWHC 2900. 

The judge went on to consider the fairness of the agreement for giving it due weight pursuant to s25, following Holman J’s dicta in Luckwell v Limata [2014] EWHC 502 (Fam), including whether upholding it would leave W in a predicament of real need.


SA v PA 2014 EWHC 394

Mostyn J upholds a Dutch prenuptial contract on the parties' capital but which was silent as to marital acquest and maintenance.  Satisfied the agreement was entered freely and it was fair to implement the terms as they were understood by the wife.
Also, W was not 'compensated' for being out of the job market - circumstances rare

Y v Y 2014 EWHC 2920

Roberts J found that the French agreement "seperations de biens" was affective to keep the parties' assets separate during marriage but was not understood to govern the situation on divorce

WW v HW 2015 EWHC 1844

Mr Nicholas Cusworth QC found the prenuptial agreement did not provide for Husband's full needs but, as it was entered freely with an understanding of its effect, it would be upheld save in so far as meeting H's needs required the court to depart from its terms.

LAW COMMISSION RECOMMENDATIONS FOR QUALIFYING NUPTIAL AGREEMENTS

To date the Law Commission's recommendations for legislating for valid nuptial agreements, provided they comply with certain stipulations including disclosure and legal advice, have not as yet been implemented.  However, agreements complying with these criteria gives the agreement the be chance of being upheld in the future.

BANKRUPTCY AND DIVORCE

Harman v Glencross 1986 2FLR 341 Court of Appeal

Application for a Charging Order Nisi to be made absolute.  If application was before the Divorce Petition, no basis for W to resist.  If after, the court holds the balance between the wife and the creditor. 

Hill v Haines 2007 EWCA 1284  Court of Appeal

Despite clear signs of H’s impending bankruptcy, DJ ordered H to transfer his 50% interest in FMH to W which he failed to do.   He was declared bankrupt on his own petition. T in B tried to set aside under s339 as a transaction at an undervalue
It was held that the court order was effective to transfer beneficial interest.  The personal right to apply for orders under the MCA 1973 was consideration for purposes of s339.
Whether the order followed contested proceedings or was by way of compromise, in ordinary cases full consideration will be assumed  unless  it could be demonstrated that the property transfer order had been obtained by fraud or some broadly similar exceptional circumstance
If the ancillary relief order were the product of collusion between the spouses, designed to affect the creditors adversely, or there were some other vitiating factor, the trustee would be entitled to apply to set the order aside

Re Jones (a bankrupt) 2008 3 FLR 1969
s339 Insolvency Act claim by trustee in bankruptcy failed; robust application of Hill v Haines.  A party's obligations under the MCA were not 'liabilities' did not make the applicant spouse a  'creditor' within s 383 and 382 for the purpose of s340 'preferences'.   Capitulation in divorce negotiations was not equivalent to preferring a spouse.


Robert v Woodall [2016] EWHC 538 (Ch)
Caroline represented the wife of a deceased bankrupt and was successful in striking out a Trustee in Bankrupcty’s application in his own name under sections 23 and 24 of the MCA 1973.  Spousal rights under the MCA did not vest in a Trustee and in any event ceased on the death of the spouse. 

The case also dealt with dispositions by the bankrupt under s284 and preferences/transactions at an undervalue.

Robert v Woodall 2016 EWHC 2987 (Ch)

Dismissal of the oral renewal by the Trustee in Bankruptcy appealing the strike out of his claims under sections 23 and 24 of the Matrimonial Causes Act 1973 (above).   Leave to appeal had already been refused by Mr Justice  Morgan on the basis that the death of the husband had brought to an end rights under the MCA and the Trustee could have no greater claim than that of the bankrupt.  Mr  Robin Dicker QC, sitting as a deputy High Court Judge, gave a clear analysis of why all the  bases raised by the Trustee were misconceived. 

APPEALS AND SETTING ASIDE

CS v ACS and BH 2015 EWHC 1005
Sir James Munby examines the appropriate procedure to challenge a Consent Order of a District Judge on the basis of material non disclosure.  He held that the last sentence of PD30A para 14.1 was ultra vires as it purported to make an appeal the only route of challenge, which ignored the long established procedure, as reflected in FPR 4.1(6), to permit an application to the judge at first instance to vary or revoke the order.  The apparent conflict required the practice direction to yield to the Family Procedure Rules 2010.  Accordingly, the wife did not need permission to apply to vary the terms of the Consent Order.

Sharland v Sharland [2015] UKSC 60 "Fraud unravels all"
The Supreme Court reviewed the authorities and confirmed that the  deliberate non disclosure of relevant financial information would enable the other spouse to set aside the Consent Order. 

Comment - Parties need to be aware of the on-going duty to disclose new relevant financial information that arises in the run-up to the resolution of financial proceedings

BARDER EVENTS and VITIATING MISTAKE
A new event, invalidating the basis of a fundamental assumption on which and order was made

DB v DLJ 2016 EWHC 324 - Mostyn J reviews the authorities on the exceptional nature of a Barder event, not one that was unforeseen, but unforeseeable.  He also considered the authorities and a nature of a "vitiating mistake", giving a number of tests for establishing such a claim (and cf Wilson LJ in Judge v Judge 2008) . Mostyn J also confirmed that the proper procedure to set aside an order by reason of such an occurrence was by application to the court which made the original order.

Critchell v Critchell 2015 EWCA 436
Court of Appeal upheld Judge’s finding that the death of H’s father within a month of consent order was a rare, Barder event in this needs based case.  Mesher order set aside as inheritance allowed both parties to have a home without the difficulties of a Mesher event in around 8 years time.


Earlier Authorities include  Barber 1993, Smith 1991, WA v Executors of HA 2015, Reid 2004, Richardson 2011 and Walkenden 2010.

EXECUTORY ORDERS
where an order of the court has not been carried into effect

Bezeliansky v Bezeliaskaya 2016 EWCA 76

McFarlane LJ confirms the doctrine of Ormrod LJ in Thwaite v Thwaite 1982 FLR 1 where a conveyance had not been executed and thus the matter was still before the court.  Also see L v L 2006 EWHC 956 and for Undertakings, Birch v Birch 2017 UKSC 53


INHERITANCE ACT

Cowan 2019 EWCA 1336

The Court of Appeal reversed Mostyn J’s refusal to give leave to make an Inheritance Act claim 17 months out of time, and where there had been a standstill agreement.  He had been wrong to say the claim stood no prospect of success.  Standstill agreements, where reached between beneficiaries with the benefit of legal advice should be an important factor in deciding whether to grant leave out of time; they were clearly in accordance with the courts’ encouragement of parties to reach agreement without proceedings.