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ANCILLARY RELIEF/RESIDENCE: E v E (Shared Residence: Financial Relief: Yardstick of Equality) [2006] EWCA Civ 843

Date:27 JUN 2006

(Court of Appeal; Wall, Kay and Wilson LJJ; 27 June 2006)

For the majority of the marriage the wife had been the family wage earner, and the husband, currently unemployed, had played a significant part in caring for the four children. The judge made a shared residence order on the basis that the wife would remain in the former matrimonial home with the children, with significant regular contact to the husband. The wife's subsequent application for sole residence was heard with the parties' ancillary relief claims; the wife sought to have the matrimonial home transferred into her sole name, intending to sell it, and to relocate with the children to another town. The judge continued the shared residence order, but altered the arrangements to accommodate the mother's planned move, ordering that the children stay with the father only during school holidays. The judge went on to order the sale of the property, with 40% of the net proceeds to be paid to the husband (deferred for 5 years but secured on the new property) plus an immediate lump sum of £3,000 to the husband and a sum equivalent to his costs. At the same time the judge made no order as to costs.

The question of the financial arrangements between the parties depended upon what order the judge made as to the children's residence, and how they divided their time between the parents; the financial arrangements needed to be tailored to implementation of the residence decision. The judge had accepted the mother's proposal to move without proper consideration of the consequences for the children and the new arrangements did not address the children's need to maintain a close relationship with the father. The fact that formal leave to move was not required was beside the point; if the move were not considered to be in the interests of the children, a condition could be attached to the residence order. There was a patent inconsistency on the face of the order concerning the costs. The true effect of the financial order was to give the husband over two-thirds of the assets, discriminating against the wife and departing from equality without explanation. The entire case would be remitted to an experienced Family Division judge.