This article covers a selection of 13 of the more important financial remedy cases decided in the period from June until September 2015.
Arbili v Arbili  EWCA Civ 542
was a needs case where the relevant assets were barely more than £1m. The principle appeal against the exercise of the judge's discretion was dismissed on the facts but H had also, but illegally, obtained information from W's computer which led him to mount an application to set aside the judge's order for non-disclosure. Neither the judge below nor the CA were prepared to read a document setting out H's instructions of what was contained within W's email account. Macur LJ applied the guidance in Imerman v Tchenguiz and Others  EWCA Civ 908
as sufficient. The unlawfully obtained materials must be returned. The recipient's duty to make any relevant disclosure arising from them within the proceedings is triggered. 'The ability of the wrongdoer, or their principle, to challenge the sufficiency of the disclosure, is confined to evidence of their memory of the contents of the materials [which] is admissable.' She cited the concluding paragraph (177) in Imerman
summarising the available remedies:
'... in ancillary relief proceedings, while the court can admit such evidence, it has power to exclude it if unlawfully obtained, including power to exclude documents whose existence has only been established by unlawful means. In exercising that power, the court will be guided by what is "necessary for disposing fairly of the application for ancillary relief or for saving costs", and will take into account the importance of the evidence, "the conduct of the parties", and any other relevant factors, including the normal case management aspects. Ultimately, this requires the court to carry out a balancing exercise ...'
The procedure to be adopted is a matter for the judge seized of the application and will be fact-specific. The judge had conducted the hearing appropriately, and on the facts was right not to allow H's application. In short, the manner in which the materials were obtained; the husband's persistant failure candidly to describe the means utilised to do so; the wife's subsequent and corroborated disclosure; apparent lack of, or minimal relevance to the issues in the case, as demonstrated by subsequent events; the delay; and the costs - financial and emotional - all pointed to stopping the matter from proceeding further.
In R v R  EWCA Civ 796
the CA rejected an argument by a Russian husband that an interim maintenance order requiring him to make payments in Russia to W's Russian account should not have been made because it sought to circumvent the EU sanctions to which he was subject. Briggs LJ categorised the order as taking a lawful route to a lawful objective and circumvented nothing.KG v LG (No 2)  EWFC 64
(following on from G v G  EWHC 1512 (Fam)
): Moor J set aside the original consent order in light of H's failure to disclose his personal benefit from a trust from which he had received £9m since the divorce. The amount was material. W had acted promptly.WW v HW  EWHC 1844 (Fam)
was a 'paradigm' case exemplifying the need for more certainty in cases involving a pre-nuptial agreement (PNA). W had insisted on a PNA before the marriage in 2002 to protect her considerable wealth. Neither party would claim against the other in the event of divorce and non-marital property should remain in the parties' respective ownership. The assessment of H's claim was needs based. The judge found him evasive, unhelpful, even untruthful as a witness, and he had overstated his own resources - especially his income - during financial disclosure prior to the PNA to 'procure the agreement and so the marriage'. The judge was satisfied that the Radmacher
conditions were satisfied so that H was to be held to the agreement unless his needs dictated otherwise, but in assessing his needs the judge noted from Kremen v Agrest (No 11)  EWHC 45 (Fam)
Mostyn J's reference to 'the minimal amount to keep a spouse from destitution' and how Ld Philips in Radmacher
had observed that the agreement could alter what is 'fair'. Moreover, H's irresponsibility and dishonesty impacted on how his needs should be assessed. His housing fund would reduce when the youngest child reached 23 (the balance returning to W) and maintenance was modestly capitalised.
In WA v Executors of the Estate of HA and Others  EWHC 2233 (Fam)
Moor J ruled on W's appeal (pursuant to Barder v Caluori  AC 20)
against a consent order for financial provision in the light of H's suicide 22 days after the making of the order for a lump sum of £17.34m to be paid in 2 tranches of £8.67m. W sought the return of the first tranche and the setting aside of the order which, she said, being needs based, had been invalidated. The case illustrates the interconnecting of principles deriving from Miller; McFarlane
(sharing, needs and compensation), Charman v Charman (No 4)
(the sharing principle 'applies to all the parties' property but, to the extent that their property is non-matrimonial, there is likely to be better reason for departure from equality') and Radmacher
(the effect of pre-nuptial agreements), as well as the Barder
line of cases.
W was an extremely wealthy heiress (in excess of £250m net). All the assets in the case came to W by inheritance/gift. H retained his assets separately. The parties had entered into a PNA before the marriage in 1997 which prevented either party claiming against the other in the event of divorce, but the process leading to it had been limited and it had not figured significantly in the pre-settlement negotiations. The parties and their minor children lived on a large estate. The Husband's elderly mother occupied a property on the estate. Moor J asked himself three questions:
(b) If not, was his award a sharing award (and hence not susceptible to challenge) or a needs based award? It was principally needs based.
(c) If it was a needs based award, and the Barder tests being satisfied, what order would have been appropriate had a judge known that H would be dead within a month?
After a 16-year marriage, some element of sharing would be appropriate having regard to H's contributions as husband and father, and the central place within the marriage of the family home. The parties had accepted responsibilities towards H's mother. An award to enable H to make bequests would not be unreasonable. AN award of £5m would reflect needs and sharing.