Recent Financial Remedy Case Studies

Here we look at some recent financial remedy proceedings.

Crowther v Crowther [2017]

This case is a protracted financial settlement on divorce dispute, in which the husband hopes to overturn an order allowing the wife to keep the matrimonial home which had been purchased entirely using money inherited on the death of her parents.

The case is interesting as it involved, in the first instance, the wife acting without a divorce lawyer, instead litigating on her own behalf. However, given her history of poor mental health, a number of concerns were raised about her capacity to do so.

It transpired that the wife was not always able to competently cross-examine her husband through the proceedings, so the trial judge attempted to assist her in this regard. However, this assistance was extensive, as was evidenced by the 26 pages of transcript detailing his many questions, particularly in relation to the man’s capacity to live independently; he was disabled and relied on the use of a wheelchair.

This assistance proved critical and indeed detrimental. Although the wife won the initial case and was allowed to keep the matrimonial home, the husband appealed the award on the basis that it was the trial judge rather than the wife who raised the issue of his capacity to live independently. As such, the husband was unprepared for these questions and had not been able to properly answer them. Judge McFarlane ruled that the initial judge’s questioning “did unfortunately go beyond simply assisting the litigant in person to present her case”.

Furthermore, the judge stated the following: ” It appears to me he [the husband] has been an individual who for much of his life, perhaps all of it, has been dependent upon others and there is no significant body of evidence before me as to his ability to function independently”

“I do not think the solution proposed would meet [the husband’s] needs. It is clear that no share of the property less than 50% would serve any useful function as far as [the husband] is concerned and of course to grant him a sale and the full 50% would not in any way reflect the contribution which [the wife] made from her family to the purchase of the property in the first place.”

The husband’s appeal was allowed. McFarlane LJ noted, however, that if at all possible the wife requires representation by a competent legal practitioner. He suggested that this case should stand as a representation of why exceptional funding b y the Legal Aid Agency is necessary in certain financial remedy proceedings.

Gladwell v Gladwell [2019]

In this family law case the husband applied to set aside a writ of control from Chelmsford Family Court in relation to unpaid sums under a financial remedy order.

This followed a consent order detailing a divorce financial settlement between the two parties, including a stipulation that the husband should pay the wife £5,889 in lieu of her claim against his pension. However, the husband argued that he was not obliged to comply with the writ of control as it did not consider another important issue made in the earlier financial order: that he first needed to dispose of timeshares in Malta before he could raise sufficient capital to make payment.

Despite this, on 28th of March 2019 enforcement officers went to the husband’s home and demanded payment of the increased sum of £8,304.72, which was then paid on the husband’s credit cards.

Mr Justice Mostyn considered the evidence and determined that the writ was unlawful and had been made without jurisdiction; therefore the enforcement officers had been incorrect to take the money. Setting the writ aside he ordered the sums to be returned.

Purvis v Purvis [2019]

This cross-border divorce financial settlement proceedings saw the UK-domiciled husband request financial documents from US authorities in relation to assets belonging to his wife, including a property that was foreclosed in 2008 and a business that was liquidated in 2013.

Justice Mostyn found that the husband’s application, which was made under regulation 24.12 FPR 2010, amounted to a ‘fishing expedition’; it was a long time since the couple initially separated and the husband failed to demonstrate that the wife had any US assets. Furthermore, said the judge, the court must also consider that the husband was a serial convicted sex offender. Against this background, he refused the application.

Conclusions

Every divorcing party will have a strong emotional sense of what they are due from a divorce financial settlement. However, when going to court to settle financial proceedings it is important that legal advice is taken to determine if this tallies with what the law will allow. Where there is any doubt, the courts will decide.

In fact, sometimes having too strong a sense of entitlement can be counter-productive and can lead to unnecessary costs and protracted litigation – i.e. Purvis v Purvis.

Crowther v Crowther is a reminder that divorce financial settlements can often vary depending on parties’ ability to live independently – i.e. in cases where they may not have full capacity, this financial dependency should be reflected in the divorce financial settlement.

Finally, Gladwell v Gladwell serves as a salutary reminder that the courts can and do occasionally make errors in law – it is also worth noting that divorce lawyers should also be aware of where a court might be exceeding its jurisdiction and should look to avoid the possibility of unnecessary litigation.