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Quan v Bray: Joint lives maintenance orders and deferred capital claims in financial remedy proceeding
Jan 25, 2019, 08:07 AM
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Antonia Barker, senior associate at Vardags, who acted for the wife in this case, comments on Quan v Bray, which involved long-running financial remedy proceedings in which the court made findings of gross litigation misconduct and that the husband had earning capacity that could be inferred.
What are the practical implications of this case?
In Quan v Bray & Ors, Mostyn J makes clear that although the court should be seeking to achieve finality between the parties, both the joint lives maintenance order and the deferred capital claim live on, although the circumstances in which such orders are appropriate will be truly exceptional.
What was the background?
This was a final hearing in long-running financial remedy proceedings which had commenced in 2012.
During the marriage, the parties founded a charity, Save China’s Tigers UK (SCT UK). An agreement between SCT UK, the Chinese Government and the Chinese Tigers South Africa Trust (CTSAT) (a Mauritian discretionary trust settled by the husband and holding a network of around fifty corporate entities spanning at least ten jurisdictions) governed and funded the operation of a project in which tigers from China were ‘re-wilded’ on CTSAT’s land in South Africa.
The parties ran the project together. The husband, having given up a highly lucrative career in structured finance, provided funds to the project and also procured a donation of almost £20m to the project from his former employer (in resolution of a dispute relating to the donation of his stock appreciation rights to the project). The project raised funds through structured finance trades, in which the husband was expert.
SCT UK, CTSAT, its protectors and its professional trustees were joined to the proceedings, as was CFL (the CTSAT company which owned the matrimonial home) and, later, the Attorney-General. SCT UK was represented in the preliminary issue and permission to appeal stages, passing the baton to CFL before the full appeal. The husband remained self-represented.
The wife argued that CTSAT was a nuptial settlement capable of variation, or, alternatively, a resource in the Thomas (per Thomas v Thomas  2 FLR 668) sense. The husband and SCT UK argued that it was not, and were successful, after a preliminary issue hearing on the matter Coleridge J (Li Quan v Bray  EWHC 3340 (Fam),  2 FLR 546).
The wife appealed that decision. She was successful at an inter partes permission hearing, but unsuccessful in the subsequent appeal (Quan v Bray and others  EWCA Civ 405,  1 FLR 1149). The matter was listed for final hearing before Mostyn J (before whom there had been numerous interim hearings in the meantime).
The husband’s position was that he did not have the means to pay anything to the wife. He had ceased even to pay her modest interim maintenance of £1,000 pcm. He asserted that the wife had significant funds available to her, comprising two properties in Beijing, which had been purchased with funds provided by the husband many years ago and gifted to her brother and her sister-in-law.
The husband asserted that he was not able to procure remunerative employment, despite being the ultimate beneficial owner of a company, JAS, which had been paid significant sums for its role as an advisor to CTSAT.
Shortly before the hearing, the wife had reached an agreement with both SCT UK and CFL, compromising the issue of costs, and abandoning the wife’s claims in relation to the matrimonial home. The wife therefore sought an order adjourning her capital claims and income provision from the husband. She contended that he had a very significant earning capacity, whether by way of commercial reward for his work for the tiger project or elsewhere.
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