The Summary of the Summaries (Summer 2024)

Published: 01/07/2024 07:00

BR v BR [2024] EWFC 11 (Peel J)

When should a single joint expert (SJE) be instructed rather than two or more separately instructed experts in financial remedy proceedings? The default position is that, wherever possible, an SJE should be directed rather than giving permission for two or more experts to be solely instructed. A high degree of justification is required to persuade the court to depart from this default position. Keywords: valuations; business assets; experts; first appointments; costs

PF v QF [2024] EWFC 10 (B) (HHJ Reardon)

Application to strike out W’s FR claim resulting from her bigamy (ex turpi causa). Application refused. There were good public policy reasons for ensuring a fair division of the matrimonial assets, and the MCA 1973 confers power to the court to make financial orders after a nullity petition in cases such as this where a social and economic partnership existed, and not to do so would create a risk of injustice. Keywords: void marriage; striking out applications; conduct; ex turpi causa

Savage v Savage [2024] EWCA Civ 49 (Moylan, Phillips and Snowden LJJ)

An appeal by a minority beneficiary concerning the interpretation of s 15(3) Trusts of Land and Appointment of Trustees Act 1996. The structure and purpose of s 15 is to set out the factors to which the court is obliged to have regard and it is not intended to limit other factors that the court is permitted to consider. Keywords: TOLATA; TOLATA claims

TK v AC [2023] EWHC 2958 (Fam) (Sir Jonathan Cohen)

LSPO and periodical payments from debt. H’s appeal against orders allowed. It is not inherently wrong for maintenance orders to be paid by debt, particularly if the debt is unlikely to be called in, will likely be covered by a third party, or is expected to be repaid through future financial gains such as property sale, inheritance, gift or business success. Keywords: appeals; legal services payment orders; variation applications; spousal maintenance (quantum)

Wife v Husband [2023] EWFC 273 (B) (DJ Masters)

Small money case. Final hearing following H’s dissipation of inheritance received during the marriage and mingled with marital property. Whilst H’s pension was ‘unarguably a pre-marital asset’, it would need to be invaded to meet need. Keywords: needs; conduct

WC v HC [2022] EWFC 40 (Peel J)

Costs awarded in needs case reducing substantive award. It is not unfair for a party guilty of misconduct to have costs awarded against them and to receive a lesser sum than their needs would otherwise demand. Keywords: conducts; needs

L v O [2024] EWFC 6 (Cobb J)

Interlocutory applications prior to substantive Barder hearing. Applications for stay and Hadkinson order dismissed. Application for security of costs granted owing to residence outside the jurisdiction. Keywords: agreements; security for costs; setting aside orders (including Barder applications); enforcement; Hadkinson orders; variation applications; international enforcement; foreign assets; costs

Xanthopolous v Rakshina [2024] EWCA Civ 100 (Bean, King and Moylan LJJ)

Costs judgment following H’s successful appeal, during which the court considered applications for costs made by both parties and an LSPO previously made. The fact that one party has been unsuccessful will often properly count as the decisive factor in the exercise of the judge’s discretion, notwithstanding that CPR 44.2(2)(a) does not apply. Keywords: legal services; costs

Collardeau v Fuchs & Harrison [2024] EWHC 256 (Fam) (Knowles J)

Refusal of W’s application for permission to bring contempt proceedings against H and another. Amongst other things, W was not a proper person to bring committal proceedings, and her intemperate language in correspondence and affidavits undermined submissions she would be capable of acting dispassionately as a quasi-prosecutor. W’s key motivation was to obtain a benefit in any future litigation, by demonstrating a statement of truth by H or Harrison could not be relied upon. Keywords: committal applications and judgment summonses

KS v VS [2024] EWHC 278 (Fam) (Arbuthnot J)

Costs judgment following a ruling in favour of H on his application for a stay of divorce and financial remedy proceedings in this jurisdiction in favour of proceedings in Monaco. Arbuthnot J considers whether the ‘Guide to the Summary Assessment of Costs’ should be considered when discussing costs in family cases. Keywords: costs

Re Z (Prohibition on Cross-examination: No QLR) [2024] EWFC 22 (Sir Andrew McFarlane, President of the Family Division)

Judgment considering the approach that a judge or magistrate sitting in the Family Court should adopt when the court has directed that a Qualified Legal Representative (QLR) should be appointed for a party in circumstances where no QLR was available. Keywords: qualified legal representative; case management; domestic abuse

Xanthopoulos v Rakshina [2024] EWCA Civ 84 (King, Bean and Moylan LJJ)

Epic saga of litigation concludes with the Court of Appeal substituting a final order made in Part III proceedings. Keywords: housing need; Part III; needs; appeals; costs; conduct

TYB v CAR (Non-Disclosure) [2023] EWFC 261 (B) (DDJ Hodson)

What does the court do with the non-discloser? Final hearing involving a short marriage with a child almost 4. There are useful observations about Form Es and the assets to be disclosed on the form, what constitutes a bank account, and disclosure obligations. Keywords: Form E; costs; non-compliance; needs; non-disclosure; adverse inferences; disclosure

AS v RS (Costs: Clean Sheet/General Rule) [2023] EWFC 284 (B) (District Judge Troy)

Costs in respect of an application for leave pursuant to s 13 Matrimonial and Family Proceedings Act 1984 are subject to ‘clean sheet’ rules. Keywords: overseas divorce and the 1984 Act; costs

SY v Personal Representatives of the Estate of DY (Deceased) [2023] EWFC 280 (B) (Recorder Hames KC)

Appeal against PSO out of time following death of W allowed and substituted by lump sum order to reflect lost benefit to the Estate for the benefit of the children. Keywords: appeals; pensions on divorce; setting aside orders (including Barder applications)

VS v KS [2023] EWHC 3475 (Fam) (Arbuthnot J)

H’s application for a stay of the financial remedy proceedings in favour of proceedings in Monaco. Monaco was the natural forum for the proceedings because there was never a family home in England and the only asset H had in England was loss-making. Keywords: jurisdiction

LMZ v AMZ [2024] EWFC 28 (Moor J)

A striking age difference, 48 years between the parties, gives rise to a strong needs-based claim. Keywords: life expectancy; housing need; needs; companies; foreign assets; valuations; matrimonial and non-matrimonial property

Nazir & Nazir v Begum [2024] EWHC 378 (KB) (Freedman J)

A person is not to be regarded as being in adverse possession of an estate when the estate is subject to a trust: see Sch 6, para 12 Land Registration Act 2002. Does this include a situation in which land is held by the personal representatives of a deceased person by virtue of s 33 Administration of Estates Act 1925? Keywords: Land Registration Act 2002; administration of estates; adverse possession; intestacy

C v D (No 2) (2007 Hague Convention) [2024] EWFC 36 (MacDonald J)

Underlines the limited circumstances in which the registration of a maintenance order pursuant to the Hague Convention 2007 may be appealed successfully. Keywords: jurisdiction; child maintenance; child support; international enforcement

Re Z (No 5) (Enforcement) [2024] EWFC 44 (Cobb J)

Enforcement of Schedule 1 order: freezing order, capitalisation of periodical payments for the benefit of the child, and Hadkinson order made against F who resides in the USA. Keywords: enforcement; freezing injunctions; foreign assets; Duxbury capitalisation; Children Act 1989, Schedule 1 applications; international enforcement; Hadkinson orders; costs

Tousi v Gaydukova [2024] EWCA Civ 203 (McFarlane P, Moylan and Holroyde LJJ)

Are the parties to a void marriage able to apply for a transfer of tenancy as cohabitants, and does the lex loci celebrationis determine the ramifications of invalidity? Keywords: void marriage; jurisdiction; transfer of tenancy; locus lex celebrationis; non-qualifying ceremony; validity of marriage

Re X (Financial Remedy: Non-Court Dispute Resolution) [2024] EWHC 538 (Fam) (Knowles J)

Impact of Churchill on family proceedings. Incoming changes to FPR from 29 April 2024 will enable court to adjourn proceedings for ADR with potential costs consequences for non-engagement. Keywords: mediation; family procedure rules; alternative dispute resolution; NCDR

AW v RH (Preliminary Issue: Third Party Rights) [2024] EWFC 54 (HHJ Willans)

Dispute with third parties regarding the ownership of two properties and whether they should be treated as matrimonial property. Keywords: third party rights; TOLATA claims; matrimonial and non-matrimonial property; trusts of land

AS v RS [2023] EWFC 283 (B) (District Judge Troy)

Application by W for leave to bring a claim pursuant to Part III Matrimonial and Family Proceedings Act 1984. Application dismissed. W should not be allowed a second bite at the cherry by way of an appeal through the back door in circumstances where the Malaysian order can neither be said to be unfair nor failing to make adequate provision. Keywords: overseas divorce and the 1984 Act; Part III; foreign assets

SP v QR [2024] EWFC 57 (B) (HHJ Hess)

Schedule 1 application with a ‘more modest’ asset base regarding residence in a property subject to a mortgage and ‘top-up’ maintenance for a disabled child. Keywords: ‘top-up’ maintenance; costs; needs; child’s needs; Children Act 1989, Schedule 1 applications; needs of a disabled child; housing need; child maintenance; child support

Julie Annette Merryman v Alex Raymond Merryman & Ors [2024] EWFC 58 (B) (HHJ Baddeley)

Four stepchildren intervene successfully in financial remedies case in respect of four farming properties. Keywords: proprietary estoppel

Williams v Williams [2023] EWHC 2479 (Fam) (Moor J)

H held in contempt for failing to comply with orders; sentenced to 56 days’ imprisonment, suspended for 28 days, to allow filing of sworn Form E. Keywords: costs; legal services payment orders; committal applications and judgment summonses; freezing injunctions

ES v SS (No 2) [2024] EWFC 59 (Sir Jonathan Cohen)

Determination as to the distribution of trust assets following a final hearing. The court did not consider implementation of the same required use of the Barrell jurisdiction, instead, the court’s decision was simply to give effect to the spirit of the order and its proper implementation. Keywords: costs; trusts; tax

Alvina Collardeau v Michael Fuchs & Anor [2024] EWHC 642 (Fam) (Knowles J)

Costs in relation to: (1) dismissal of W’s contempt application against H and the owner of a company that provided management services to H and W; and (2) withdrawal by H of his application to debar W’s solicitor from acting for her. Keywords: costs; conduct; committal applications and judgment summonses

TK v LK [2024] EWFC 71 (Nicholas Allen KC, sitting as a Deputy High Court Judge)

Enormously helpful review of Schedule 1 authorities re: (1) the jurisdiction to make a Schedule 1 award after a clean break in divorce proceedings; (2) the relevance of parental conduct in Schedule 1 proceedings; (3) dependence and the reversion of capital; and (4) costs. Keywords: conduct; costs; Children Act 1989, Schedule 1 applications; child maintenance case management

D v D [2024] EWFC 76 (HHJ Booth, sitting as a Judge of the High Court)

25:75 division in favour of H following breakdown of second marriage and H’s substantial assets. Court considered W’s needs should be generously interpreted to overcome lack of SJE evidence as to W’s ill health. Needs would include W’s outstanding costs as summarily assessed by the court. Keywords: interest; housing need; Duxbury capitalisation; matrimonial and non-matrimonial property; costs; spousal maintenance (quantum); experts

KFK v DQD [2024] EWFC 78 (B) (Recorder Rhys Taylor)

Modest asset needs case. Issues in the case: add-back, adverse inference, beneficial interests, dishonesty, family loans and resources, nature of business assets (income vs capital resource), non-disclosure, presumption of advancement, treatment of debts, and witness credibility. Keywords: chattels; costs; disclosure; Family Procedure Rules

The Incorporated Trustees of Great Calling Ministries Worldwide v (1) A Irabor (2) F Irabor [2024] EWHC 803 (Fam) (Sir Jonathan Cohen)

Appeal by an intervener against a final order which included discharging an interim charging order on the FMH made in the intervenor’s favour and a payment of a lump sum which would prevent the recovery of the monies the intervenor alleged were owed to them. Keywords: joinder of third parties; needs; debts; loans

Hersman v De Verchere [2023] EWHC 3481 (Fam) (Moor J)

Successful application by H for W’s committal to prison for non-compliance with orders from 2019 and 2023. Keywords: committal applications and judgment summonses; enforcement

Hersman v De Verchere [2024] EWHC 905 (Fam) (Moor J)

Enforcement proceedings following W’s failure to transfer a ski chalet to H. W previously committed to 3 months’ imprisonment but has not returned to the United Kingdom. H awarded £2.3m on account of lost rental profit and W’s cross application for enforcement of a lump sum dismissed, the court declaring it satisfied as deducted from the total owed to H. Keywords: executory orders; release from undertakings; enforcement; international enforcement; costs; foreign assets; conduct

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