MS v FS (No. 3)  EWFC 245 (B)23 December 2023
Published: 07/02/2024 23:06
DDJ Mehta. This was a final hearing in a financial remedy application by H where arguments surrounding jurisdiction following remarriage, and conduct, were raised.
The parties were 53 (H) and 43 (W) years old. They were married for eight years. The child of the family (13) lived with W. W had remarried in 2017 and had another child. H also remarried and had three small children with his second wife. There was a large difference between the earning capacities in the parties with W able to earn £77,000 pa as an accountant, and H earning £18,000 pa as a driver.
The case history was ‘long and torturous’. W had obtained a divorce without H’s knowledge/service and in 2011 on the basis of a fraudulently obtained consent order had transferred the FMH to herself. H successfully applied for this consent order to be set-aside but the DA was not set aside.
The parties’ representatives were only instructed the week before the trial. On the first day of the hearing it was apparent that each legal team had a different bundle prepared by their own client and the case had to be stood down until day two.
W’s counsel raised a new argument on day two of the hearing: that the court had no jurisdiction under s 28(3) MCA 1973 because H had remarried and the only Form A was W’s from 2011. Under s 28(3) MCA 1973 a ‘party shall not be entitled to apply, by reference to the grant of that decree, for a financial provision order in his or her favour, or for a property adjustment order, against the other party to that marriage’ after remarriage. H argued that they were determining W’s application from 2011 and the application for a property adjustment order was de facto W’s because the only reason the property was in her name is because of her forgeries. The judge found that (1) H was deprived of the opportunity to file a Form A due to W’s fraudulent acts, (2) W could not benefit from her fraud, and (3) there was further authority from the court of appeal that a party can seek a transfer order against themselves: Dart v Dart  2 FLR 286.
The wife’s fraud
W asserted she had a loan of £140,000 from her mother and she could identify this loan on her bank statements. However, the judge found that the statement was falsified and that the real statement showed no such transaction. The judge gave herself a Lucas direction and did not assume all the liabilities claimed by W were fraudulent.
W’s repeated attempts to mislead the court were conduct which it was inequitable to disregard. The judge found that there would have been financial consequences for H that were impossible to identify as well as his legal costs. The judge addressed this by taking the value of the house at present and not allowing W credit for her mortgage payments.
H showed the set-aside judgment to the police and the ACCA (accounting regulatory body) when he should not have done. This caused W to lose her civil service job. While this was conduct inequitable to disregard, the fact that H’s conduct flowed from W’s conduct lessened the inequity. As W did not attend the final day the judge had to estimate the loss at £10,000.
It was decided that H should be registered as the joint beneficial and legal owner of the home. W was ordered to pay a lump sum of £150,000 to discharge H’s interest in the family home; in default thereof, house to be sold. This was £10,000 less than what was due as a result of H’s conduct. W was ordered to pay 50% of H’s costs on an indemnity basis.
Judge indicates that she has published her judgment to highlight of the complexity and practical difficulties faced by District Judges and Deputy District Judge every day and to contribute to transparency.