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Hart to Hart

Date:14 JUN 2016
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Nicola Walker, Partner, Irwin Mitchell, Birmingham

The newspaper headlines in respect of the case of Hart v Hart [2016] EWCA Civ 497, which was the husband's application for permission to appeal, reflected only a very small part of the husband's grounds of appeal. The media coverage focused almost entirely on the fact that Mrs Hart had a new partner and, despite this, she was awarded a significant lump sum in the financial proceedings that had been determined in May and June 2015. The appeal of the husband had, in fact, raised seven points that were dealt with by the Court of Appeal.

The facts of the case are that the parties married in April 1987 having lived together since 1983, and separated in 2006 after almost 20 years of marriage and with two grown-up children who are now in their twenties. Mrs Hart is now aged 60 and Mr Hart is now aged 82. The parties remained friendly after the separation, with the husband making handsome provisions for the wife. Matters became acrimonious in 2011 when divorce proceedings were brought. The matter was finally determined by His Honour Judge Wildblood QC, almost 9 years after the parties had separated. Both Mr and Mrs Hart had moved on in their personal lives and were in new relationships.

Mr Hart had dispensed with the services of lawyers during the proceedings and acted in person in respect of the final hearing. Mrs Hart had been represented throughout the proceedings by Irwin Mitchell, and her counsel at the final hearing was Peter Mitchell. The proceedings were not straightforward. It took this matter 3 1/2 years to come to trial, and occupied 18 interlocutory hearings with various orders for costs made against the husband who was debarred from cross-examining the expert accountant because of his wilful breach of orders: the latter fact being referred to in the Court of Appeal judgment. There was also reference in the Court of Appeal judgment to the difficulties the court had in extracting evidence from the husband during the proceedings.

At the High Court hearing last year, the overall effect of HHJ Wildblood QC's order was to award the wife a net share of capital valued at £3.56m, with the remainder of the parties' joint wealth remaining with Mr Hart. In broad terms, the total net assets were £9.375m. The make-up of the assets was complex and included a discretionary family trust, properties in Miami, Majorca and the UK, and various commercial property companies. There were significant tax implications. Following the conclusion of the hearing in June 2015, both parties made applications for leave to appeal against HHJ Wildblood QC's decision. The wife was given permission to appeal, and the husband's application for permission to appeal was refused.

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The hearing on 21 May 2016 was the husband's oral application for permission to appeal. The judgment, given by Sir James Munby P, focused on all the issues raised by the husband, which included the complaint that the wife had been cohabiting for some years with her new partner. The President agreed with counsel for the wife that the judgment of Mostyn J in AB v CB [2014] EWHC 2998 (Fam), [2015] 2 FLR 25 does not lay down any principle of law. He opined that new relationships are quintessentially matters of fact, with the trial judge having to take into account all the evidence to decide whether the future prospects of the relationship should be considered and to what extent. The judge had reached a conclusion on the facts that was plainly open to him.

The other points raised by the husband were dealt with succinctly by the Court of Appeal, and these related to how HHJ Wildblood QC had treated the family trust, the treatment of capital gains tax and the treatment of various company loans. In particular, Sir James Munby P held that, in circumstances where the judge had found that the husband had chosen not to provide sufficient information, the husband could not complain about the judge's findings in relation to the trust. He supported the judge's decision to make provision for potential CGT, which the wife may be liable for in the future.

It is notable that the wife's leave to appeal is due to be heard in the autumn and focuses on HHJ Wildblood QC's approach to pre-marital assets, which was the preoccupying issue thought the 2015 hearings. The wife's appeal focuses on whether the correct approach to pre- and post-marital assets was adopted by HHJ Wildblood QC. Despite the difficulties of the evidence presented, the judge eventually departed from equality in dividing the assets and limited the wife's claim to her needs. The wife's appeal is based on the fact that the husband had not provided sufficient evidence to ground a departure from equality in his favour; the burden of doing so being on him.
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