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Samantha Bangham’s Week in Cases 5 July 2013

Date:5 JUL 2013
Law Reporter

Samantha Bangham - Family Law Reporter Last week’s excitement was always going to be hard to follow wasn’t it? But, fear not, my plan for the t-shirts is in the pipeline so watch this space! Otherwise it has been a very quiet week with just two cases on offer.

In the Family Division, Mostyn J has given a very useful judgment on the subject of freezing orders in financial proceedings: UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] EWHC 1735 (Fam), [2013] FLR forthcoming. In a case in which the wife obtained an ex parte freezing order in respect of assets including a Spanish property, the husband sought to discharge the order due to a wholesale failure to comply with the applicable principles and procedures. The wife had also been found to have copied various documents without permission and had been sued in the Queen’s Bench Division.

As seems to be his trademark approach to giving judgment, Mostyn J took the opportunity to provide a thorough analysis of the key principles and safeguards, in relation to freezing orders including the necessity for an applicant to show, by reference to clear evidence, an unjustified dealing with assets by the respondent giving rise to the conclusion that there was a solid risk of dissipation of assets to the applicant's prejudice and in relation to ex parte applications, the applicant had to show that the matter was one of exceptional urgency. Short informal notice had to be given to the respondent unless it was essential that he was not made aware of the application. No notice at all would only be justified where there was powerful evidence that the giving of any notice would likely lead the respondent to take steps to defeat the purpose of the injunction, or where there was literally no time to give any notice before the order was required to prevent the threatened wrongful act. Cases where no notice at all could be justified were very rare indeed. The order of the court should record on its face the reason why it was satisfied that no or short notice was given.

One of the striking features of the case was the lack of urgency of the wife’s case. Her application for a freezing order had been merely a pre-emptive strike. All her case rested upon was unparticularised threats by the husband to ‘leave her with nothing’. That approach went against the established principles.

Weighing up all of the wife’s conduct she had forfeited the right to the exercise of the court’s discretion to re-grant an injunction. The husband’s undertaking which he offered ex gratia was accepted. Had he not done so Mostyn J would not have imposed a freezing/preservation order over the property, given the wife’s misconduct. However, it was important to recognise that the unparticularised evidence of the husband’s threats, coupled with the turbidity of his financial arrangements, did give rise to suspicions and cause for concern. Had the wife given a fully explained account of the circumstances and context of the threats; fulfilled her duty of candour; and complied with the applicable principles and safeguards, it was distinctly possible that a freezing/preservation order over (at least) the Spanish property would have been justified.

In addition to the Mostyn J’s detailed outline of the law in this area he also appended examples of freezing and search orders to the judgment.

In another financial remedies judgment, Coleridge J, provided an ex tempore judgment in M v S, [2013] FLR forthcoming. This case required thoughtful consideration of the true beneficial ownership of a property combined with the husband’s diagnosis of Asperger’s syndrome and depression. Following the marriage the husband and wife lived at the husband’s parents’ address. Several months later the wife moved into another property owned by the company and purchased by the father-in-law. The wife claimed this had been part of a plan for the couple to move in together while the husband claimed the wife moved while his parents were out of the country with no permission to do so.

When the wife petitioned for divorce she remained living in the property and sought financial relief. The father-in-law issued a notice to quit upon the wife and an OS v DS hearing took place to determine whether the husband had any interest in the property.

The husband, relying on documentary evidence claimed he had no interest in the property which had been purchased by his father prior to the relationship with his wife commencing. The wife claimed the husband had always told her it was his property and that it would be the matrimonial home.

The judge found that the issues had to be determined in light of the husband’s mental condition which may well have caused him to create the impression that he owned the property and that it would become the matrimonial home. That was part of his presentation and it was not unreasonable for the wife to believe him. The documentary evidence showed that the husband’s father had purchased the property and there was nothing to suggest fraud or forgery. On the basis that the husband’s father had always been the beneficial owner of the property, the wife’s claim was struck out for having no prospect of success.

In case anyone has missed our subtle and not so subtle hints, this year is the 150th anniversary of Jordans and to celebrate we are taking part in a number of fund-raising efforts. One of which is our family fun day taking place on Saturday 13th July 2013 at Keynsham Rugby Club. So if you fancy a day out for a very worthwhile cause please come and join us. Tickets can be purchased through our dedicated website where you can also find out more about our anniversary activities: www.jordans150.com.

Samantha Bangham is the Law Reporter for Family Law Reports. Judgments can be submitted for consideration via: editor@familylaw.co.uk.

She can be contacted on Twitter: @ladybangham, or connect with her on LinkedIn.

The content of this article should not be considered as legal advice.