Welcome to this round-up of developments since the second issue of the Financial Remedies Journal (FRJ) went to press in April 2022.

All (yes, all) cases involving the financial consequences of married or unmarried relationship breakdown, or the maintenance of children, are summarised on the FRJ website1 by an experienced team of lawyers: Case Editor, Polly Morgan, and barristers Rebekah Batt, Stephanie Coker, Alexandra Hampton, Krishma Patel and Henry Pritchard. We summarise not merely financial remedy cases on divorce, but also the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA), Schedule 1 to the Children Act 1989, the Inheritance (Provision for Family and Dependants) Act 1975, enforcement, Part III of the Matrimonial and Family Proceedings Act 1984 – and anything else we think might provide a line of argument to the reader. When preparing a summary, the team has in its mind the practitioner who, late in the evening, is trying to prep an urgent case and doesn’t want to read unnecessarily. Accordingly, the cases are easily searchable by the same keywords used in the Dictionary of Financial Remedies and we try to focus on the points in each case that are likely to be of most help for future cases.

Polly Morgan and Henry Pritchard provide a concise round-up of recent financial remedies judgments.

G v W [2022] EWHC 101 (Fam) (Sir Jonathan Cohen)

Appeal in Schedule 1 proceedings from the decision in Re A (Schedule 1, Overspend, Costs Clawback) [2022] EWFC 21.

Keywords: Children Act 1989 Schedule 1 applications; costs.

Re D (A Child) (Appeal from the Registration of a Maintenance Order) [2022] EWCA Civ 641 (Lewison, Moylan and Baker LJJ)

Reciprocal Enforcement of Maintenance Orders (United States of America) Order 2007 (SI 2007/2005) provided right of appeal to registration in England and Wales of a US child maintenance order.

Keywords: child maintenance; jurisdiction; international enforcement; appeals.

VV v VV [2022] EWFC 41 (Peel J)

Expensive and acrimonious proceedings. Judgment useful for detailed survey of case-law on premarital cohabitation.

Keywords: sharing principle; needs; premarital cohabitation; conduct; matrimonial and non-matrimonial property.

VV v VV [2022] EWFC 46 (Peel J)

Costs judgment in relation to the above.

Keywords: conduct; costs.

VSN v Secretary of State for Work and Pensions and JN [2022] UKUT 138 (Administrative Appeals Chamber) (Upper Tribunal Judge Poynter)

Question: Was a mirror order a ‘maintenance order’ within the meaning of the Child Support Act 1984? Answer: yes, but in this case as it was more than 12 months old it was superseded by the jurisdiction of the child maintenance service.

Keywords: overseas divorce and the 1984 Act; child maintenance; child support; mirror orders; international enforcement.

SC v TC [2022] EWFC 67 (HHJ Edward Hess)

Financial remedies case involving post-nuptial agreement, in which the husband had, in the face of a foreshortened life expectancy caused by Parkinson’s disease, voluntarily relinquished his clear entitlement both to sharing and to a needs-based award.

Keywords: impaired life expectancy; agreements.

D v D (Financial Remedy Case) [2020] EWFC B24 (DJ John Smart)

Rare reported modest asset case. Identification of needs in a marriage that, with prior cohabitation, had lasted only 10 months.

Keywords: needs; clean breaks and term maintenance; duration of the marriage; conduct; spousal maintenance (quantum).

XZ v YZ [2022] EWFC 49 (Mostyn J)

The judge granted an interim reporting restriction order (RRO). He followed the decision in Xanthopoulous v Rakshina [2022] EWFC 30 in which Mostyn J held that a financial remedy judgment (which is not predominantly about child maintenance) may be reported without anonymity save where a RRO was successfully applied for. Successful application, primarily because the disclosure in question had been provided before the court’s change in approach to anonymity. Cf Gallagher v Gallagher (No 1) [2022] EWFC 52 (below).

Keywords: publicity; confidentiality; reporting restriction order.

Villiers v Villiers [2022] EWCA Civ 772 (Moylan, Coulson and Arnold LJJ)

The wife’s successful appeal of the order of Mostyn J to dismiss her claim under section 27 of the Matrimonial Causes Act 1973, following extensive litigation which had gone all the way to the Supreme Court in relation to jurisdiction. The husband has since died.

Keywords: jurisdiction; disclosure; maintenance.

Gallagher v Gallagher (No 1) [2022] EWFC 52 (Mostyn J)

Application for a reporting restriction order (RRO) or an anonymity order. Focus on Re S (A Child) [2004] UKHL 47 balancing exercise in respect of Articles 6, 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. RRO granted, but only in relation to information about the parties’ children.

Keywords: reporting restriction order; publicity; confidentiality.

Gallagher v Gallagher (No 2) [2022] EWFC 53 (Mostyn J)

Financial remedies final judgment. Valuation of a construction company with findings as to the non-matrimonial portion of said company adopting a linear method. Equal division of a portion of the company reflecting the marital acquest. Criticism by the judge of the large legal costs incurred in a ‘simple’ case.

Keywords: non-matrimonial property; valuations.

Paul v Paul & Ors [2022] EWHC 1638 (Fam) (Moor J)

Inheritance (Provision for Family and Dependants) Act 1975 claim. Applicant applying for reasonable financial provision from the estate of her late husband and a declaration that she had a beneficial interest in a property he had owned. The husband’s will had left everything else to his children. Common intention constructive trust found in favour of the applicant as to 50% of property. Equal division of the estate.

Keywords: TOLATA; Inheritance (Provision for Family and Dependants) Act 1975.

DE v FE [2022] EWFC 71 (Cohen J)

Financial remedies judgment. Question of whether former family home was a matrimonial property when the husband had owned it before marriage and the parties had lived there for 18–24 months before renting it out. Thirty per cent of the value treated as matrimonial. Discount in division of husband’s business on the basis of post-separation endeavour and liquidity.

Keywords: duration of marriage; division of former matrimonial home; non-matrimonial property; valuations.

Brake & Anor v Guy & Ors [2022] EWHC 1746 (Fam) (HHJ Paul Matthews)

Application for a third party debt order (TPDO) against trustees of a SIPP pension. Not possible for a TPDO to bite on income from pension since Mr Brake had only a beneficial interest in the underlying investments, subject to tax and costs. Order instead made on Blight v Brewster [2012] EWHC 165 (Ch) basis by delegating his power to receive funds to someone acting for the creditor.

Keywords: enforcement; pensions.

X v C [2022] EWFC 79 (HHJ Farquhar)

Modest asset financial remedy judgment. Clean break in which the wife was left unable to purchase a home for some years (by contrast to the husband), but where she retained the whole of her valuable pension. Successful application for a reporting restriction order applying Re S (A Child) [2004] UKHL 47 balancing exercise. Commentary on the difficulty for lower court judges in ruling on anonymity in the context of inconsistent High Court authority.

Keywords: pensions, publicity; confidentiality; conduct, needs, tax.

Barclay v Barclay [2022] EWHC 2026 (Fam) (Cohen J)

Judgment summons of Sir Frederick Barclay. Failure to pay £100m after final order, legal services payment order and arrears of maintenance. Defence that assets were tied up in trusts controlled by family which he could not access. Criticism by judge of Sir Frederick’s family. Judge did not find for the wife in respect of judgment summons pertaining to the £100m, but did in respect of the order two orders. Sanction to be considered for breach at later hearing.

Keywords: enforcement; judgment summons.

Goodyear v Goodyear (Deceased) [2022] EWFC 96 (HHJ Farquhar)

Our recipient of this issue’s Mostyn Award case, discussed below.

X v Y [2022] EWFC 96 (HHJ Edward Hess)

Financial remedies case where the judge adjourned the wife’s capital claims for 10 years after the husband dishonestly represented his finances, including via fabricating bank statements. The case highlights the need for practitioners to be alert to the practice of using software to edit digital documents such as bank statements.

Keywords: adjournment of capital claims; conduct; disclosure.

Enforcement

The last few months have brought several interesting judgments about enforcement. We are not referring in particular to the Barclay case, as despite the judge’s interesting exercise of soft power this is primarily notable only for sartorial reasons. Brake and Anor v Guy & Ors [2022] EWHC 1746 (Fam) is an interesting reminder of the potential for enforcement of a costs award against a party’s pension. Pension funds have no power to refuse a delegation by the debtor policy-holder of his rights to receive the pension benefits, and it is not necessary to appoint a receiver to revoke the trust. The experience of those involved in Goodyear v Goodyear (Deceased) [2022] EWFC 96, our Mostyn Award winner, also reminds us to look carefully at the terms of the pension documentation – including the underlying scheme rules and trust documents.

On the enforcement of child maintenance, we have two recent judgments and a useful blog post.

In Re D (A Child) (Appeal from the Registration of a Maintenance Order) [2022] EWCA Civ 641 the Court of Appeal confirms that there is a right of appeal in relation to the registration of maintenance orders under the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance.

In VSN v Secretary of State for Work and Pensions and JN [2022] UKUT 138 the Administrative Tribunal confirms that a mirror order – here an order made under Part III of the Matrimonial and Family Proceedings Act 1984 mirroring a Hong Kong order – was capable of holding the Child Maintenance Service at bay, but only for the statutory 12 months per section 4(10) of the Child Support Act 1991.

Lastly, we refer the reader to the blog post for this journal by HHJ Andrew Greensmith, the Financial Remedies Court lead judge for Cheshire and Merseyside.2 In the blog, he provides guidance on how courts should approach applications for a Child Maintenance Service liability order and any subsequent appeals.

The Mostyn Award

The Mostyn is our regular award for the for the most outstanding judgment published since the previous issue and which accordingly represents a ‘must read’ for all financial remedy practitioners. It is named for the person who has given family practitioners many must-read judgments.

This time, our award goes to HHJ Farquhar, who sits in Brighton, for his judgment in Goodyear v Goodyear (Deceased) [2022] EWFC 96.

The case considered whether the wife’s unforeseen death, a few months after a very substantial pension share had been ordered in her favour, was a Barder event. The case turned on one particular Barder requirement: Did the wife’s death invalidate the fundamental basis on which the order was made? The children – the wife’s executors and the beneficiaries of her estate – argued not. The pension had been treated as just another form of capital and divided according to the sharing principle. Not so, said the husband: the pension share provided the wife with income which she did not now require. Both arguments were correct, said the judge, after considering the rationale behind the share on the facts of this case and instructions they had given the pension on divorce expert at the time. The wife had earned her share of the pension under the sharing principle and was entitled to pass on capital, but the parties’ needs had to be met and the pension was designed in part to do that. A reduced pension share ‘will appropriately reflect the “earned” share whilst providing a “discount” for the many years over which income will not be required for Mrs Goodyear’, ruled the judge.

An added complication was that the pension scheme rules were unclear and did not incorporate the requirements of the Pension Sharing (Implementation and Discharge of Liability) Regulations 2000 (SI 2000/1053). This meant that it was uncertain how or whether the pension share might be implemented in the circumstances. Careful investigation and analysis by judge, solicitors and counsel was necessary, and this work ultimately led to the pension trustees amending their scheme rules.

Note that the standard family orders project clause agreeing to permit an application to vary or set aside the order if the recipient was to die prior to implementation had not been included in the order, but such agreement, HHJ Farquhar points out, refers only to an application and not to the parties’ position when that application fell to be determined.

A summary of this decision by Stephanie Coker of 5 St Andrew’s Hill and a link to the judgment can be found on the FRJ website.3

Dealing with the lovelorn litigant

The modern family lawyer is part agony aunt, part legal scholar, and part photocopier wrangler. In the next issue we will bring you an illustrated guide to unjamming the paper tray, but on this occasion we devote ourselves to helping readers with the important legal skill of sympathising with the lovelorn while nonetheless dismissing their case, probably with costs. At least, we assume that is why a senior judge sent the following judgment to us.

This is the judgment of HHJ Patrick Kiage of the Court of Appeal in Kisumu, Kenya, in Walutsachi v St Mary’s Mission Hospital [2022] KECA 1023 (KLR):

‘15 The field of love, no doubt, is littered with the wreckage of many a broken heart. The tears that have flowed, in the wake of betrayal, perfidy and other two- or multiple-timing adventures of lovers, is beyond reckoning. Thus must one who ventures into love do so alive to the perils that abound.

16 For the appellant herein, whose sad tale is well captured in the judgement of my learned sister Mumbi Ngugi, JA, with which I am in full agreement, the lesson learnt is that the wounds of love find scant balm in the courts of law. Love’s ills and woes can only be found in lover’s return and reconciliation, failing which in accepting and moving on, while holding onto hope for comfort elsewhere, or leaving love’s threshing floor altogether, paying heed to Kahlil Gibran’s The Prophet: “But if in your heart you would seek only love’s peace and love’s pleasure, then it is better for you that you cover your nakedness and pass out of love’s threshing floor …”

17 I agree that if a man takes a woman he loves to hospital labour ward for she is heavy with child, while happily believing himself the father, but upon the child making a landing, the woman by subterfuge eludes him, and leaves the hospital in the company of another man, a shadowy rival, judges may empathise with the deceived first man, but cannot in law agree with him that the hospital should compensate him for not detaining the woman, till the man who brought her in should claim, and discharge her. Adult she is, a free moral agent (though the man may protest the word ‘moral’) and in a free country she is perfectly free to associate with and as in this case, be discharged from hospital in the company of whomever she pleases.

18 Thus, while the emotional anguish the appellant had to endure by reason of those events evokes sympathy, the courts of law deal not in that currency. It must cut to the core that the woman in this case declared the other man, one Echesa, as the child’s father and not the appellant but are not the hearts of men, and of women, deceptive above all things? It dawns on the appellant, alas too painfully, too late, there is lie in the words, spoken usually in jest, that children are mother’s babies but father’s may-bes. And in the circumstances of this case, no remedy lies in law, least of all against the hospital.

19 I concur that the appellant’s case before the High Court was properly dismissed and perceive that though arguably laden with moral merit, this appeal is unmeritorious in law, and must be dismissed.

20 As Tuiyott, JA also agrees, the appeal be and is hereby dismissed along the lines proposed by Mumbi Ngugi, JA.’

While we commend the use of poetry, we do think that ‘This Be the Verse’, recited by Wall LJ in a judgment once, rather better fits most family cases than Kahlil Gibran. Further suggestions of appropriate poetry may be sent to the Case Editor at her own risk.