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The Brief: Financial Remedy Update from 4PB (July 2022)

Date:14 JUN 2022
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Queens Counsel
Barrister
Barrister

Cases

Lockwood v Greenbaum [2022] EWHC 845 (Fam)

  • Moor J confirms that the test for permission to apply under Matrimonial and Family Proceedings Act 1984 Pt III is ‘substantial ground’ for making an application and not ‘substantial connections’ to England and Wales.
  • Agbaje v Agbaje [2010] UKSC 13, [2010] 1 FLR 1813 followed.
  • Moor J also considered the discreet point as to the permission to appeal, which had been granted out of time and sets out a useful summary of the law concluding that:

    ‘There have been numerous authorities, over the years, starting with Johnson v Johnson (1980) 1 FLR 331 that permission should be given in circumstances where the delay was several weeks not months; where the delay was accounted for; and where there was no significant prejudice to the Respondent. All three of these conditions are satisfied in this case.’

    Facts

  • Both parties reside in New Zealand and have dual British and New Zealand citizenship. They met in England in 2000 and resided here during the first years of their relationship and marriage, having got married in New Zealand in 2006. In 2009, the parties relocated permanently to New Zealand. The parties have two children together.
  • The marriage ended in 2011, and contentious litigation has been ongoing since the breakdown of the parties’ marriage.
  • Following the divorce, there were financial orders made by the courts in New Zealand. The husband was ordered to pay a lump sum for capitalised maintenance, subject to the ‘relationship debts’ relating to liabilities owed to his mother. The judge presiding over the proceedings in New Zealand acknowledged that the court had no jurisdiction over the former matrimonial home in London (‘Ringmore Rise’).
  • The judge in New Zealand commented that: ‘[The wife’s] perception of unfairness is acknowledged. The remedy may lie elsewhere’.
  • The wife appealed and, although her appeal was refused, the appeal judge explicitly stated that the wife’s interest in Ringmore Rise should be dealt with by the English courts. It was concluded that: ‘whether the ultimate outcome is substantively unfair can only be finally assessed once the outcome of any proceedings in the UK (if brought) are known’.
  • The wife made her application for permission to make a Part III claim in this jurisdiction. The recorder handed down judgment, refusing the wife’s application and concluding that:

    ‘There was no jurisdiction pursuant to section 15(1)(a) or (b) of the 1984 Act (domicile or habitual residence) and that the application was brought pursuant to section 15(1)(c), namely that:

    “either or both of the parties to the marriage had, at the date of the application for leave, a beneficial interest in possession in a dwelling-house situated in England or Wales which was at some time during the marriage a matrimonial home of the parties to the marriage.”’

  • The wife appealed the decision of the recorder, and permission to make an application under Part III MFPA 1984 was granted.

    In granting permission for the application, Moor J concluded that there was no precondition that the court must be satisfied that the case had substantial connections with England and Wales:

    ‘The test to apply in deciding an application for permission is, however, set out very clearly and comprehensively by the Supreme Court at paragraph [33] of Agbaje, where Lord Collins said:

    “In the present context, the principal object of the filter mechanism is to prevent wholly unmeritorious claims being pursued to oppress or blackmail a former spouse. The threshold is not high, but is higher than ‘serious issue to be tried’ or ‘good arguable case’ found in other contexts. It is perhaps best expressed by saying that in this context ‘substantial’ means ‘solid’.”’

    He referred to his decision in the case of Aldoukhi v Abdullah [2021] EWHC 3086 (Fam), which was the first to consider a Part III MFPA 1984 claim which was founded solely on an interest in a matrimonial home in the jurisdiction. It will be interesting to see whether there will be more cases of this sort following Aldoukhi and this judgment.

    The husband was ordered to pay costs both at first instance and on appeal, on the basis that he should have allowed the wife to make a Part III Application:

    ‘These parties have, to date, been completely incapable of agreeing anything. I take the view that, given the liability Ms Lockwood had to Mr Greenbaum in relation to the debt to his mother, the fact that the corresponding asset could not be taken into consideration in New Zealand, and the observations of the New Zealand judges, Mr Greenbaum should have immediately agreed to Ms Lockwood being given permission to make her application. He could then have argued, with force, that it should be dealt with on a streamlined basis. Instead, he decided to contest it, including on appeal, even after Sir Jonathan had given permission to appeal. It follows that he must pay the costs of the application both below and on appeal on the standard basis to be assessed if not agreed.’

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ND v LD (Financial Remedy: Needs) [2022] EWFC B15

  • The court determined financial remedies in a ‘small money needs’ case after a 30-year marriage.
  • Provides a helpful example of what to do when the capacity of litigants is an issue and the consideration of special measures;
  • Finding that H’s PIP benefit was part of his income
  • Case reflects the reality of FR litigation in county courts up and down the country, where there are litigants in person, no expert reports and ‘best practice’, even though this may be necessary and shows how that is often navigated.

    DDJ Arshad outlined the relevant law in relation to financial remedy proceedings, citing s 25 MCA and White v White [2000] 2 FLR 981. She reminded herself of key considerations for the court when faced with an application for maintenance, including the importance of focussing on the needs of the parties and that parties should be encouraged to transition to independence as soon as it is just and reasonable. The husband’s case was that he should receive 40% of the wife’s monthly income, which would mean he lost his state benefits (excluding PIP, which is not means tested). On his case, he would receive £433 per month more than he currently does through state benefits. The wife, however, would not have her needs met by the remaining portion of her monthly income. On this point, the judge concluded that:

    ‘Bearing in mind that the Court has a duty to consider financial independence, that the parties have been mainly financially independent since July 2020 (and completely since September 2021 when looking at the mobile phone payment), that the Husband has been able to make very modest savings even on his current income and the Wife says she is unable to meet her monthly expenses and has a loan for her legal expenses, that whilst the Husband currently does not have an earning capacity and that I have not ruled out that the Husband may have a potential earning capacity in the future, a spousal maintenance order is not appropriate.’

    Both parties’ housing needs were met in rented accommodation (the husband through Local Authority housing and the wife through the Housing Association). Despite the husband having been a stay-at-home husband and the court determining that he had limited earning capacity, a clean break was ordered on the basis that the wife’s income only just met her needs and maintenance to the husband would reduce his benefits.

    A pension expert report was not ordered on the basis that it would not be proportionate to the assets in the case. The court made a 50% sharing order of the wife’s pension in the husband’s favour, the parties’ pensions being their only capital assets.

    In respect of pensions, the parties’ only capital asset in this case, the judge ordered equal sharing of the wife’s pension pot at the agreed date of separation. Her basis for doing so, in part, was due to the fact that the husband had foregone an opportunity to develop his own career and had been a stay-at-home parent throughout the marriage. It was envisaged that the wife would continue working and paying into her pension pot, whereas the husband was unlikely to do the same.

    It is significant that this case has been published, in light of the recent comments on increased transparency in the family courts. This is a rare example of the courts publishing a decision by a deputy district judge in a modest asset case.

The full and comprehensive version of The Brief is in July’s print issue of Family Law.

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