Form E and the consequences of non-disclosure


W v W (Financial Provision: Form E) [2004] 1 FLR 494



Nicholas Mostyn QC, as deputy High Court judge, makes four important points in the context of a husband whose form E seriously misled the court:


- Solicitors must distinguish between their duty to represent their client and their duty not to mislead the court. But the litigant bears the ultimate responsibility for signing form E and cannot hide behind the actions of his solicitor.


- Where a party has remarried, it is not permissible to reduce his assets by one half for inchoate claims against him in respect of a hypothetical divorce from the second spouse. A reduction might be sought in argument to the court, but a spouse's full worth must be set out in from E.



- The judge reminds us of the route to capitalisation of periodical payments (section 31(7B) of the Matrimonial Causes Act 1973) first enunciated by Lord Justice Thorpe in Pearce v Pearce [2003] EWCA Civ 1054. First quantify the variation, fix the date from which payments are to commence and then capitalise the payments on Duxbury principles.



- In assessment of costs, the judge introduced the concept of 'natural costs' where the cost of a case has been increased by a party's failure to give proper disclosure. The natural costs - what the case might have cost but for non-disclosure - are then deducted from the actual costs; and the difference (90% for assessment on an indemnity basis) is the additional costs attributable to non-disclosure, payable to the wife in this case.



Shared residence - application to leave the jurisdiction



Re Y (Leave to remove from the jurisdiction) [2004] 2 FLR 330



Mr Justice Hedley was faced with an application by a mother who wished to return to the US, where the parents had shared residence of a five-year-old in Wales. In such a case, the established cases (see Payne v Payne [2001] EWCA Civ 166) were of limited assistance. The welfare of the child dictated the basis for the decision. The course of 'less detriment' was for the child to stay in Wales. Any decision of this nature depends entirely on the discretion of the judge; but Re Y will inevitably be regarded as influential where children jointly cared for come to be considered for removal from the jurisdiction.



Child support: magistrates' adjudicative function on liability order



Farley v Secretary of State for Work and Pensions [2004] EWHC 1655



Section 33(3) of the Child Support Act 1991 requires magistrates to make a liability order - which then enables the Child Support Agency (CSA) to enforce maintenance arrears - where they are 'satisfied that the payments have become payable'. In Farley, Mr Justice Keith held that these words did not require the justices to adjudicate on the validity of the order.



Mr and Mrs Farley had signed a pre-1993 separation deed that required him to pay maintenance for two children. Absent Mrs Farley receiving income support (section 6(1) of the Child Support Act 1991), this would prevent the agency carrying out an assessment under section 4(10). Mr Farley was told in late 2002 that he had arrears of £33,000 and an application was eventually made to the justices for a liability order.


But I have a separation deed, said Mr Farley, therefore section 4(10) applies. Mrs Farley has been on benefit, said the CSA, therefore section 4(10) is trumped by section 6(1). Prove it, said Mr Farley. We do not have to, responded the agency - the justices must take our word for it.


Mr Justice Keith agreed. Magistrates are not to be expected to answer 'difficult questions' such as whether or not a person is required to pay child support maintenance. They must accept the word of the CSA.



By David Burrows, David Burrows, Bristol