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ANCILLARY RELIEF: TL v ML and Others (Ancillary Relief: Claim Against Assets of Extended Family) [2005] EWHC 2860 (Fam)

Date:9 DEC 2005

(Family Division; Nicholas Mostyn QC; 9 December 2005) [2006] 1 FLR 1263

The wife asserted in her claim for financial relief that assets apparently held by the husband's brother or by companies connected to the family were, in reality, assets of the husband. She also claimed that the considerable assets held by the husband's parents should be considered by the court as resources available to the husband.

It would not be proper or principled to make an award that ranged outside the assets or income that were the husband's as of right. If the court was satisfied on the balance of probabilities that an outsider would provide money to meet an award that a party could not meet from his absolute property, then the court could, if it was fair to do so, make an award on that footing. But if it was clear that the outsider, being a person who had only historically supplied bounty, would not, reasonably or unreasonably, come to the aid of the payer, then there was precious little the court could do about it. It would be improper pressure on the husband's family to appropriate the entirety of the husband's assets and income on the basis that his family would provide further support. There was a clear distinction to be drawn between, on the one hand, the position where the person being encouraged to provide funds was a member of the payer's family and, on the other hand, where he was a trustee in a fiduciary relationship with the payer, in which case the provider had a legal obligation to consider the beneficiary's interests. The court gave guidance as to what should happen in every instance in which a dispute arose about the ownership of property in ancillary relief proceedings between a spouse and a third party.