Insolvency of husband: wife's liability for occupation rent
Lump sum by instalments
Extension of order for periodical payments
Permission to appeal out of time: death
Cohabitation and ancillary relief factors
Protocol and case management of children cases
Cross-over between Trusts of Land and Appointment of Trustees Act 1996 and schedule 1 of the Children Act 1989
Disclosure of confidential information
Permission to appeal out of time or application to set aside: duty of candour
Treatment of capital allowances in calculation of child support
Insolvency of husband: wife's liability for occupation rent
Byford v Butler [2003] EWHC 1267 (Ch); [2004] 1 FLR 56, Mr Justice Lawrence Collins (Ch Div)
In this case, a husband had been declared bankrupt in 1991. He and his wife continued to live in their house until his death in 2000. The wife paid all the mortgage payments.
The husband's trustee in bankruptcy claimed an entitlement to half the - now substantially increased - value of the house, to which he was entitled for the creditors. The wife claimed credit for the mortgage repayments. The trustee claimed set-off for an occupation rent for the wife, and was held to be entitled to such set-off.
The moral of the tale is that any wife in the position of the unfortunate Ms Butler should do all that she can to buy off the husband's trustee as soon as possible so that the house becomes hers free of any potential claim.
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Lump sum by instalments
R v R (Lump Sum Repayments) [2003] EWHC 3197 (Fam); [2004] 1 FLR 928, Mr Justice Wilson
At first sight this case appears unusual - a decision on its own facts alone. On further consideration, it may be one of much wider application where the court is reluctant to order the sale of a family business (N v N (Financial Provision: Sale of Company) [2001] 2 FLR 69, Mr Justice Coleridge).
The husband's company - a farm - offered to buy his wife a house that it would retain, but in which she could live. The husband and the business had no means, either by immediate payment or by borrowing, to provide a lump sum for the wife.
In these circumstances, said Mr Justice Wilson, it would be wrong for the wife to have to be beholden to her husband's family and leave the husband with assets - his shares in the family company - worth around £450,000. A lump sum by instalments could be paid over time and would enable her to offer the payments as security for raising a mortgage on her own property. Therefore, the husband was required to pay £30,000 immediately (cash available to him at the time of the hearing) and £225,000 over 20 years (charged on the husband's shares in his business).
At present, lump sum orders by instalments are rare. They are variable on application under section 31(2)(d) of the Matrimonial Causes Act 1973, but they cannot be capitalised under section 31(7A) (surely a lacuna in section 31(7A)).
It seems likely that the criteria for any variation of such an order would be far stiffer than for periodical payments - the court has already decided what capital the wife should have, and only provided it by instalments because it is not available immediately. Why should it be varied save in truly exceptional circumstances? Such an order differs fundamentally from periodical payments in that it survives remarriage of the wife or her death. In the armoury available for disposal of ancillary relief applications where immediate cash is not available the order should not be overlooked.
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Extension of order for periodical payments
Fleming v Fleming [2003] EWCA Civ 1841; [2004] 1 FLR 667, CA
In this case, the Court of Appeal considered an application to extend a four-year order for periodical payments by a wife whose earning capacity was limited and who was cohabiting with another man.
On such an application, said the court, cohabitation was to be treated as among the overall circumstances of the case, but it cannot be equated with marriage (Atkinson v Atkinson [1988] Fam 93; [1988] 2 FLR 353, CA).
Where a fixed-term order has been made (without a bar on further application under section 28(1A) of the Matrimonial Causes Act 1973), then on application to vary the order by extending its term the court still has a duty to consider termination of the order (under section 31(7)(a) of the 1973 Act); and can also make a lump sum in substitution of continuing periodical payments (sections 31(7A) and (7B)).
According to Lord Justice Thorpe, these 'obligations are much enhanced in any case where there has been a previous term ordered.... In such circumstances, the exercise of a power to extend obligations requires some exceptional justification'.
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Permission to appeal out of time: death
Reid v Reid [2003] EWHC 2878 (Fam); [2004] 1 FLR 736, Mr Justice Wilson
In this case, Mr Justice Wilson considered the question of whether the wife's death, two months after a consent order which had given the husband 60% of the net proceeds of sale of the parties' former matrimonial home, was a supervening event in Barder terms (Barder v Barder (Caluori intervening) [1988] AC 20; [1987] 2 FLR 480, HL) justifying the court in giving permission to appeal out of time.
Barder conditions are that:
Mr Justice Wilson also adopted the condition found by Mrs Justice Bracewell in S v S (Ancillary Relief: Consent Order) [2002] EWHC 223, that the events must not only invalidate the order but they must also not have been reasonably foreseeable.
Taking as his starting point Smith v Smith (Smith and ors Intervening) [1992] Fam 69, that the court, in considering the merits of the appeal, must start from the proposition that the original order was made knowing, hypothetically, that the wife had only a limited period (in Reid it was two months) to live - Mr Justice Wilson held that the husband should have permission to appeal, and on the appeal that he was entitled an increase in provision for him to 75% (as he sought). Three months between death and issue of the application was sufficiently prompt in the circumstances.
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Cohabitation and ancillary relief factors
CO v CO (Ancillary Relief: Pre-Marriage Cohabitation) [2004] EWHC 287 (Fam); [2004] 1 FLR 1095, Mr Justice Coleridge
Mr Justice Coleridge provides another breath of fresh air on modern ancillary relief law. Cohabitation before marriage, he says, cannot be ignored in assessing 'all the other circumstances of the case' (see section 25(1) of the Matrimonial Causes Act 1973) and in seeking to achieve 'fairness' between the parties. In considering a case on ancillary relief - as with any case where it is the court's discretion that is the guiding factor in disposal of the issues between the parties - it is essential to be wary of regarding any case as 'authoritative'; by definition it cannot be. But a decision from a source such as this judge on a question of ancillary relief must be regarded as highly persuasive.
In CO v CO, the parties had lived together for eight years before a four-year long marriage. Living together for such a long time (often with children, though not necessarily) must be included among the factors that tended towards 'financial fairness as between a couple at a particular stage in society's development'.
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Protocol and case management of children cases
Re G (Protocol for Judicial Case Management of Children Cases: Application to become a Party in Family Proceedings) [2004] EWHC 2793 (Fam); [2004] 1 FLR 1119, Mr Justice Hedley
A test of the Protocol for Judicial Case Management in Public Law Children Act 1989 Cases [2003] 2 FLR 719, occurred in Re G where magistrates, when they transferred a case to the local care centre, refused to hear from, or to join in proceedings, grand-parents who had looked after a child for some months.
Their refusal was based on paragraph 2.5 of the protocol, which provides that on a transfer to a care centre, the court can only make case management directions.
Joinder of a party was not among the directions or orders allowed for.
In a concise judgment, Mr Justice Hedley stressed that the intention of the protocol was 'to improve family justice not ... to impair it', and that it must not become a source of satellite litigation.
With respect to the justices, they seem also to have misunderstood the status of a protocol. It cannot change the law and must always be read subject to any primary and delegated legislation (See Langley v North West Water Authority [1991] 1 WLR 697, CA).
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Cross-over between Trusts of Land and Appointment of Trustees Act 1996 and schedule 1 of the Children Act 1989
W v W (Joinder of Trusts of Land Act and Children Act 1989 Applications) [2003] EWCA Civ 924; [2004] 2 FLR 321, CA
This case confirmed that where there are contemporaneous applications in respect of the same former home of the parties and their children under section 14 of the Trusts of Land and Appointment of Trustees Act 1996 (TLATA), and section 15 and schedule 1 of the Children Act 1989 (which in cases of homes where there are children will generally be the case) then, said Lord Justice Thorpe in the Court of Appeal, 'sensible [case]management demands that the competing applications be conjoined'. The judge in this case had been wrong to try the TLATA application first and separately from the Children Act 1989 application.
Unfortunately, the other procedural problem exposed by this question does not appear to have been addressed by the court. TLATA applications proceed under the Civil Procedure Rules 1998, whereas Children Act 1989 applications are dealt with under the Family Proceedings Rules 1991; and at present never the twain do meet. An opportunity seems to have been missed to assist practitioners in resolving how to proceed in the hybrid jurisdiction. In practice, some courts require form E to be filed: nothing to do with either jurisdiction; but it serves the purpose admirably and may be thought to split the difference between competing sets of rules.
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Disclosure of confidential information
Cream Holdings Ltd and ors v Banerjee and anor [2004] UKHL 44; [2004] 3 WLR 918, HL
Family lawyers should note the recent case of Cream Holdings as it applies, for example, to those cases where a spouse/parent removes or otherwise obtains confidential documents belonging to the other spouse/parent and threatens to publish them in some way. (The problem is particularly acute in the context of child support appeal tribunals where there are no clear rules about confidentiality.)
The case deals with section 12(3) of the Human Rights Act 1998 and the balance to be adopted where an injunction to prevent publication of confidential documents is applied for. The right to privacy must be balanced against the right to freedom of expression said Lord Nicholls of Birkenhead. The test under section 12(3) must be flexible according to the circumstances of each case and the claimant's likelihood of success at trial.
Most children cases will be covered by the confidentiality provisions of section 12 of the Administration of Justice Act 1960; and in ancillary relief proceedings the implied undertaking to the court that a disclosed document will not be published or otherwise communicated to third parties applies (explained in Clibbery v Allan [2002] 1 FLR 565, CA).
But what of the case where a spouse removes papers from the other spouse, whether or not during proceedings, and these are passed on to a third party - press, new partner, etc? Protection for the spouse whose documents are taken must be based on the test in Cream Holdings.
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Permission to appeal out of time or application to set aside: duty of candour
Burns v Burns [2004] EWCA Civ 1258; [2004] 3 FCR 263, CA
Burns provides a cautionary tale for the family lawyer who does not know the Barder conditions for applications for permission to appeal out of time - in particular the requirement for prompt action.
The wife had consented to an order that she receive a lump sum on the basis that the former matrimonial home was valued by Savills at £850,000. A month later, the husband advertised the house for sale at £1.5 million and a cash purchaser was found soon afterwards for £1.7 million. In failing to tell the wife of this, said Lord Justice Thorpe, the husband was in breach of his 'duty of candour', which the judge thought could extend beyond the date of the court order.
Although the wife's then solicitors knew of what was happening around the time of sale in late 1999, it was not till the wife instructed new solicitors in early 2003 that an application was made for permission to appeal out of time.
On these facts, Lord Justice Thorpe concluded that, although the wife should have been entitled to a review on appeal or on setting aside, given the increase in value (see, for example, Warren v Warren [1983] 4 FLR 529, CA) and the husband's failure of his duty of candour, she failed in her prior application, namely permission to appeal, because of her delay (see the Barder conditions earlier).
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Treatment of capital allowances in calculation of child support
Smith v Smith and anor (2004) The Times, 2 November, CA
Smith decides a relatively narrow point of interest only to non-resident parents whose net income is calculated after deduction of capital allowances.
In the face of an adverse decision from the Child Support Commissioner and refusal of permission to appeal from Lord Justice Wall, Mr Smith persuaded a unanimous Court of Appeal that capital allowances should be included when his net income was defined for calculation of child support maintenance. (He was refused his costs because, said the court, this was a 'children case' and the secretary of state, who had failed to draft clear regulations and had given him no support until the eleventh hour, had acted 'reasonably'.)
If inclusion of capital allowances to arrive at net income produced an artificially low figure - as, it could be said, it did in Smith - then Mrs Smith could apply to the secretary of state for a departure (now called 'variation') direction that Mr Smith's life-style was not consistent with his assessed income (see regulation 27 of the Departure Direction Regulations 1996). The court pointed out that for Mr Smith there was no equivalent appeal or other redress if his assessable income, without deduction of capital allowances, emerged at a very high figure.
By David Burrows, David Burrows, Bristol
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