Simon v Simon & Integro Funding Limited [2023] EWCA Civ 1048 (King, Moylan, Popplewell LJJ)

The parties agreed an order that had the effect of depriving a litigation funder (Level) of the repayment of a loan advanced to W. Level were joined as a party, and the order was set aside by consent. A full financial remedy trial was directed with Level as a party. H appealed. H’s appeal partially succeeded, setting aside the trial direction. However, Level remained a party for the outstanding application for a consent order to be made in the terms agreed between H and W at the FDR. Keywords: joinder of third parties; appeals; setting aside orders (including Barder applications); trusts, litigation funding

Ditchfield v Ditchfield (Appeal) [2023] EWHC 2303 (Fam) (Peel J)

H appealed a final order favouring W with a 62/38 asset split. Findings made against H as to his earning potential, disclosure, a contributing partner, and a £500k withdrawal for his sole benefit. The appeal was dismissed; the decision and findings were sound. Keywords: appeals; disclosure; loans; needs; debts

Cazalet v Abu-Zalaf [2023] EWCA Civ 1065 (King, Moylan, Peter Jackson LJJ)

An appeal against the decision of Mostyn J concerning the approach the court should take when faced with an application to rescind a decree nisi. Appeal allowed. Keywords: setting aside a decree nisi

Xanthopoulos v Rakshina [2023] EWFC 158 (Peel J)

H applied for an LSPO to fund an appeal, having been granted permission by Moylan LJ. Mostyn J’s criteria in Rubin v Rubin [2014] EWHC 611 (Fam) applied. LSPO granted. Peel J noting, where permission to appeal has not yet been granted, the court should apply greater scrutiny as to the prospects of substantive relief (Rubin at [13] (iii)). Keywords: jurisdiction; conduct; legal services payment orders; appeals

KG v NB [2023] EWFC 160 (HHJ Willans)

H sought to vary periodical payments per a 2019 consent order. A 2021 consent order concerning the FMH failed to adequately address maintenance terms. A phased reduction lacked justification; a single adjustment sufficed. Variation applications should focus on changes to avoid appeals by the ‘back door’. Keywords: periodical payments; variation application; cohabitation; consent orders

HAT v LAT [2023] EWFC 162 (Peel J)

W sought MPS and LSPO. Parties entered and implemented a deed of separation 30 years ago although had not converted the deed to an order. W now sought a needs award of £5m, H sought to uphold the deed. Rossi v Rossi [2006] EWHC 1482 (Fam), [2007] 1 FLR 790 distinguished given H’s ongoing financial provision. MPS and LSPO granted. Keywords: legal services payment orders; maintenance pending suit; agreements; delay

O v O [2023] EWFC 161 (Recorder Moys)

H challenged SJE valuation evidence. SJE’s refusal to answer H’s questions justified as questions went beyond ‘clarification’, H permitted to cross-examine instead. H’s financial conduct throughout the marriage disregarded, he did not set out to hide assets from W or put them beyond her reach. H’s post-separation conduct placing £40k into spread betting account was material and reflected in final order. Keywords: conduct; efficient conduct; matrimonial and non-matrimonial property; add-backs

TRNS v TRNK [2023] EWFC 133 (Sir Jonathan Cohen)

W not held to PNA due to material non-disclosure by H in not updating disclosure which he knew/believed to be out of date, resulting in a differentiation in the value of assets from £935k to £14.5m. Keywords: disclosure; agreements

Richard Winter & Anor v Philip Winter & Anor [2023] EWHC 2393 (Ch) (Zacaroli J)

Claimants were two brothers, R and A, whose suit was against the third brother, P, as executor of their father Albert’s estate, to challenge Albert’s 2015 will, and the solicitors who drafted the will. Detrimental reliance clearly established; R and A had dedicated their working lives to the business, giving up the chance to build an alternative life on the assurances. Equal shares awarded. Keywords: proprietary estoppel; mutual wills; contractual estoppel

Seales v Seales [2023] NIMaster 6 (Master Bell) (Northern Ireland)

W pursued a ‘conduct case’ based, in part, on H’s conviction for murder. H attempted to challenge his conviction within the proceedings. Held: H’s involvement in the murder had a profound impact on W’s physical and mental health, as well as her ability to earn a living. 75% of assets awarded to W along with costs of £50k for litigation misconduct. Keywords: conduct; add-backs; costs

Barclay v Barclay [2023] EWFC 164 (Sir Jonathan Cohen)

H faced committal proceedings for non-payment of £245k in longstanding financial remedy proceedings. Application dismissed because court unaware of accessible funds, and impasse not due to H’s deliberate defiance of orders. Keywords: committal applications and judgment summonses; enforcement

Butler v Butler [2023] EWHC 2453 (Fam) (Moor J)

After a 6-year marriage, W was awarded £58k, deemed the maximum H could borrow against non-matrimonial property. W appealed, arguing insufficient to meet housing needs. Moor J dismissed, stating a higher award would render both homeless. In needs cases, the court need not meet both parties’ needs. Keywords: needs; housing need

Glaser & Anor v Atay [2023] EWHC 2539 (KB) (Turner J)

A clause requiring the payment of all direct access fees prior to trial falls foul of the Consumer Rights Act 2015 and was not protected by the safe harbour defence pursuant to s 62 of the Act as the term required the payee to pay the full/nearly full price without any services rendered and regardless of any savings or gains made by the payer. Keywords: direct access; Consumer Rights Act 2015; public access; fees; quantum merit

AP v BP & Ors (financial remedies – appeal – disclosure – privilege) [2023] EWFC 169 (HHJ Vincent)

H sought disclosure of an earlier agreement between W and intervenors, having found a later agreement. W claimed privilege, citing preparation for legal proceedings related to H’s separation of Company A from Company B. Disclosure ordered: no litigation anticipated when the agreement was made, and intended future legal action doesn’t privilege a document. Keywords: setting aside transactions; companies; disclosure; privilege

AP v BP & Ors (financial remedies & s 37 application to set aside disposition) [2023] EWFC 170 (HHJ Vincent)

H applied under s 37(2)(b) MCA 1973 to set aside W’s sale of shares in matrimonial businesses aimed at defeating his claims. W failed to rebut the presumption of intent to defeat H’s claims; intervenors could not avail themselves of a defence. Application granted. Keywords: setting aside transactions; dispositions; companies; intervenors

LT v ZU [2022] EWFC 206 (HHJ Evans-Gordon)

F’s application to adduce further evidence following an arbitrator’s award pursuant to Sch 1 granted. Contrary to the arbitrator’s expectations, the financial landscape had changed considerably such that to convert the arbitral award without consideration of the further evidence may render it unfair or unjust. Keywords: Children Act 1989 Schedule 1 applications; needs; appeals; arbitration

LT v ZU [2023] EWFC 179 (HHJ Evans-Gordon)

F contested an arbitrator’s award pursuant to Sch 1, which M sought to convert into a substantive order. The court rejected M’s application, holding the court had no power to compel a parent to borrow funds for property transfer/settlement. The award exceeded F’s means and wasn’t realistic, as it surpassed F’s income and resources. Keywords: arbitration; needs; Children Act 1989 Schedule 1 applications; appeals

GA v EL [2023] EWFC 187 (Peel J)

Application for Daniels v Walker application refused owing to lateness of the application jeopardising the listing for final hearing. In any event, the difference between the SJE and W’s proposed expert on a ‘hindsight approach’ was £1.6m which would likely be immaterial to the outcome. Keywords: post-separation accrual; Daniels v Walker application; efficient conduct; business assets; experts; matrimonial and non-matrimonial property

AZ v BZ (Financial Remedies Appeal) [2020] EWFC B86 (HHJ Vincent)

H appealed a final order giving W a 99:1 asset split. The court found the DJ erred in admitting late evidence without allowing H opportunity to challenge. The division was unjust, and the court erred in assessing respective needs, favouring W disproportionately. Decision substituted to 60:40 in W’s favour. Keywords: setting aside orders (including Barder applications); needs; personal injury awards; appeals

A Wife v A Husband [2023] EWFC 200 (HHJ Willians)

H and W had a nuptial agreement stipulating property, including inheritance, be kept under the acquiring party’s name. H inherited an Italian property portfolio and €1.85m, used to buy the FMH. Post-separation, W contested housing needs without challenging the agreement. W received £700k based on ‘needs light’ approach for fairness. Keywords: jurisdiction; agreements; debts; needs; Children Act 1989 Schedule 1 applications

Steels v Steels & Anor [2023] EWHC 2985 (Ch) (Fancourt J)

On appeal, it was found the respondents, the son and wife of the appellant, lacked sufficient evidence of detrimental reliance, on limited assurances provided, to establish a proprietary interest in the property. The appeal was allowed. Keywords: proprietary estoppel; detrimental reliance

Mahtani v Mahtani [2023] EWHC 2988 (Fam) (James Ewins KC, sitting as a deputy HCJ)

W found H had divorced her in Indonesia without her knowledge. W applied for non-recognition of the overseas divorce (s 51(3) FLA 1986) and to lift a stay on her divorce and financial remedy applications. H misled the Indonesian court in obtaining the divorce. Court deemed W’s steps to bring the proceedings to H’s attention reasonable. Application granted. Keywords: divorce orders; overseas divorce and the 1984 Act; non-recognition of overseas divorce; Family Law Act 1986; jurisdiction

Y v Z [2023] EWFC 205 (HHJ Hess)

Costs ordered against a litigation friend in Sch 1 proceedings due to failure to secure alternative representation or adjournment, despite prior knowledge of counsel’s unavailability. Barker v Confiance Limited [2020] EWCA Civ 112 applied. Keywords: litigation friend; variation applications; costs; capacity

FA v OA & Ors (financial remedies – s37 application to set aside) [2023] EWFC 213 (HHJ Vincent, sitting as a s 9 deputy HCJ)

W’s application to set aside a loan from H’s brother, subsequently secured against the FMH via a charging order after Nigerian court proceedings, failed. She couldn’t discharge the burden of proof that the loan was a sham. Bhura v Bhura [2014] EWHC 727 (Fam) considered. Keywords: setting aside transactions

HO v TL [2023] EWFC 215 (Peel J)

Guidance on factors relevant to valuing a private company (in this case a hotel chain, hence HO v TL); accessibility of extricating money from trusts per Charman; and extent of matrimonialisation of H’s extra-marital financial contributions. Keywords: variation of settlements; matrimonial and non-matrimonial property; valuations; trusts; sharing principle

HO v TL (Costs) [2023] EWFC 216 (Peel J)

Reaffirming WC v HC [2022] EWFC 40, costs can eat into needs, and reasonable settlement attempts or their absence can influence cost decisions. W’s unrealistic negotiation stance contrasts with H’s, closer to the mark, first offer. Costs awarded against W. Keywords: costs

Williams v Williams [2023] EWHC 3098 (Fam) (Moor J)

Hadkinson orders should not precede a final order, Moor J affirming his decision in Young v Young [2013] EWHC 3637 (Fam). LSPO made against H despite non-disclosure; evidence showed H held £1m in a UK bank account capable of enforcement. Additional provision provided to assist W to pursue overseas litigation, seeking freezing orders against H’s substantial foreign assets. Keywords: legal services payment orders; Hadkinson orders; conduct

DH v RH (No 2) (Variation of interim Arrangements) [2023] EWFC 210 (MacDonald J)

At an interim hearing, H sought to discharge LSPO and MPS orders, and discharge a freezing order on a life policy. The court refused H’s application in respect of LSPO and MPS, citing no change in circumstances. MPS was decreased by £7k per month due to W’s change in living arrangements. Freezing order discharged for H to meet LSPO, MPS and personal expenses. Keywords: maintenance pending suit; legal services payment orders; disclosure; release from undertakings; interim relief; enforcement; freezing injunctions; variation applications

GA v EL [2023] EWFC 206 (Stephen Trowell KC, sitting as a deputy HCJ)

Final hearing with the sole issue being how to divide proceeds of sale of a business (see above in respect of a Daniels v Walker application in this case). Court reviewed post-separation contribution, awarding W 42.5% and H 57.5% to reflect H’s post-separation contribution (15%). Keywords: debts; needs; Children Act 1989 Schedule 1 applications; agreements; jurisdiction

H v GH [2023] EWFC 235 (Simon Colton KC, sitting as a deputy HCJ)

H’s request for an extension to pay a lump sum order was refused. The court lacked jurisdiction; if wrong, refusal wasn’t unfair as H knew of the payment since December 2018 but took financial risks. The Guide to the Summary Assessment of Costs provides a good indicator as to the proportionate costs recoverable in family proceeding. Keywords: costs; guideline hourly rates; striking out applications; Masefield v Alexander; extension of time; lump sum

Galbraith-Marten v De Renée [2023] EWFC 253 (Cobb J)

Further hearing in the long running saga to determine the appropriate level of maintenance in Sch 1 proceedings. James v Seymour calculation adopted but a reminder this is only the starting point. The court retains a statutory discretion to meet needs. Keywords: child maintenance; Children Act 1989 Schedule 1 applications

TM v AM [2023] EWFC 247 (B) (DJ Dinan-Hayward)

H’s application to set aside a consent order, in which he received 100% of the matrimonial assets, because of an alleged material non-disclosure by W as to a £2m diamond. There was not a shred of evidence to support H’s claim and the application was dismissed. Keywords: disclosure from third parties; setting aside orders (including Barder applications); matrimonial and non-matrimonial property; consent orders

JN v GN [2023] EWFC 244 (B) (DJ Hatvany)

FMH transferred to W subject to mortgage (approx £225k equity). Departure from equality due to H’s reckless spending of inheritance (£468k), marital endowment policy (£28k) and pension (£59k). Costs: H pays £10k in instalments (£350 pcm) due to litigation conduct; W’s £19k costs deemed excessive. Keywords: inheritance; delay; costs; housing needs; conduct; mortgages

FT v JT [2023] EWFC 250 (B) (Recorder Allen KC)

At the final hearing, date of separation was determined to ascertain post-separation endeavour. W’s business interests encompassed both marital and non-marital endeavour due to pre- and post-separation efforts, of which 35% were considered to be matrimonial. H’s share would be uncapped at 17.5% until 2038, then 10% thereafter. Keywords: date of separation; duration of the marriage; matrimonial and non-matrimonial property; post-separation accrual

VT v LT [2023] EWFC 256 (B) (DJ Hatvany)

Small money case. £118k equity in FMH. H’s greater income provided a borrowing capacity of c. £84k. H ordered to pay W £55k in two instalments to enable W to explore shared ownership houses. If H could not pay, FMH to be sold. Keywords: needs; modest asset cases

RN v DA (Divorce – Recission of Decree Nisi) [2023] EWFC 255 (B) (HHJ Vincent)

Decree nisi granted in September 2012. W applied to rescind the decree following reconciliation, H sought to apply for decree absolute out of time. The court rescinded decree nisi, citing parties’ conduct from 2013 to 2020 as a material change invalidating the decree’s basis. Keywords: setting aside a decree nisi; publicity and confidentiality; rescission of divorce decree; decree nisi/decree final; decree absolute out of time; divorce orders

AXA v BYB (QLR: Financial Remedies) [2023] EWFC 251 (B) (Recorder Taylor)

First reported case of a Qualified Legal Representative (QLR) in financial remedy proceedings in which Recorder Taylor distils the statutory provisions under which a QLR is appointed, the remit of a court-appointed QLR, and other helpful guidance. Keywords: disclosure; debts; costs; qualified legal representative; spousal maintenance (quantum)

Y v Z [2024] EWFC 4 (Peel J)

Determination of M’s Sch 1 application against F, a Middle Eastern Royal Family member. Despite a ‘millionaire’s defence’, some disclosure aids the court in assessing statutory factors, enforceability, award structure and claimant budget. Despite H’s prior compliance, Peel J ordered security. Keywords: disclosure; child maintenance; Children Act 1989 Schedule 1 applications; millionaire’s defence; security for costs; child support

A v B (In the matter of the Matrimonial and Family Proceedings Act 1984) [2023] EWFC 241 (B) (HHJ Evans-Gordon)

After an overseas divorce, W faced significant debt to H, prompting his bankruptcy proceedings against W. W sought a capital order, post-sale, of a property solely owned by H before marriage in England. The court found the parties had a ‘moderate connection’ to the jurisdiction and granted W £550k from the £1.2m sale, reflecting H’s pre-marital ownership and short cohabitation period in the property. Keywords: overseas divorce and the 1984 Act; needs

Potanina v Potanin [2024] UKSC 3 (Lords Lloyd-Jones, Briggs, Leggatt, Stephens, Lady Rose)

In a majority decision 3:2 (Lords Briggs and Stephens dissenting), H’s appeal was allowed. The court emphasised the fundamental rule of procedural fairness that, before making an order requested by one party, a judge must give the other party the chance to object. The relevant rules give a party served with an order made without notice the right to apply to have the order set aside on the ground that the test for granting permission under s 13 MFPA 1984 is not met. This right is unconditional. There is no requirement for one party to show a ‘compelling reason’ or to show that the court was materially misled or to deliver a ‘knock-out blow’ to achieve a set aside after hearing from one party alone. Keywords: overseas divorce and the 1984 Act