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ANCILLARY RELIEF: Hutchings-Whelan v Hutchings [2011] EWCA Civ 1048

Date:29 SEP 2011

(Court of Appeal; Hughes LJ; 7 September 2011)
A 20-year marriage with 3 grown-up children. The separation occurred in 2000 and the consent order was issued in 2004. The husband was ordered to pay £176,000 lump sum to the wife and the matrimonial property was to become the sole property of the husband otherwise to be sold to pay the wife. The wife subsequently learned that the husband sold a property for £1.3 million, a previously undisclosed asset and also bought new Bentley for £120,000. The judge set aside the consent order due to non-disclosure. The husband's appeal was dismissed.

The husband failed to attend a number of hearings and failed to fully comply with full disclosure. At re-trial it was asserted that the couple's middle child, not the husband, had sold the property. The property venture was funded by damages obtained as a child. A large number of other property transactions undertaken by the husband, alone or by nominees, some by informal capital advances by friends and some by commercial borrowing. The judge found the husband had comprehensively lied about his financial position, the child had acted as a bare nominee in the property transaction, some of initial outlay was paid by damages but that had then been paid back.  The judge ordered a lump sum of £384,000 to be paid to the wife. The husband appealed.

The husband saw a draft judgment and sent his arithmetical concerns but did not attend court for the hand down of judgment. He dismissed his solicitors and did not have notice of the hearing. No grounds for appealing the judge's findings that the husband continued to conceal his financial position. The judge failed to take into consideration interest paid by the husband to informal lenders as well as the fees for planning consultants, clearance of the site, fees spent on developing other properties and a bracelet purchased for £50,000 but actually only worth £35,000. Permission to appeal granted in relation to these matters and also on costs as the husband did not have the opportunity to make submissions on this point.