(Court of Appeal; Thorpe, Wall and Burnton LJJ; 15 July 2008)
The wife applied for financial relief in her divorce petition, but as there were no assets at the time did not pursue it. Instead, she and the husband agreed that, as the matrimonial property was in negative equity, the wife would transfer her interests to the husband provided she was released from the mortgage. The mortgagee was not prepared to agree, and the agreement was never implemented. When the property eventually gained in value the husband raised the transfer issue again, and the wife gave notice of her intention to seek ancillary relief against herself in Form A; by this time she had remarried. The judge questioned whether the wife was precluded by Matrimonial Causes Act 1973, s 28(3) from instituting ancillary relief proceedings, but concluded that because the alternative would have been TOLATA proceedings he could proceed to hear the case.
The jurisdictional point identified by the judge did not in fact arise directly. The wife's original application for all forms of ancillary relief in her divorce petition entitled her to issue a notice of intention to proceed in Form A despite the fact that the application was filed with the court after remarriage. TOLATA proceedings would have achieved the same result if the jurisdictional point had in fact arisen.