All posts by Bishop & Sewell

The Leasehold Roadshow – 28 February 2017 – Hackney, E8

The Leasehold Roadshow – 28 February 2017 – Hackney, E8

Bishop & Sewell is supporting The Leasehold Roadshow, a FREE event which brings specialist advice to Hackney flat owners and those keen to understand their rights before purchasing a flat.

The event includes valuable seminars on a range of leasehold issues and one-to-one sessions.

You can book your place here.

Call for change: adultery as a heterosexual act

Call for change: adultery as a heterosexual act

Following the legalisation of same-sex marriage by virtue of the Marriage (Same Sex Couples) Act 2013, hope of equality for the LGBT community was reinforced. However, the current legal definition of adultery under the Act suggests that our law is inherently limited in its view of same-sex relationships.

There may be trouble ahead…

The Act itself is controversial, as it legalised same-sex marriage under new legislation instead of amending the existing Marriage Act. Many have argued that this does not mean equality, with the New Statesman saying ‘Separate and different are not equal.’ There is a specific point, however, that has stayed consistent across the acts:

“Only conduct between the respondent and a person of the opposite sex may constitute adultery for the purposes of this section.”

This is the definition of adultery for both same-sex and mixed-sex couples and brings to attention another antiquated definition in the law. The law in England appears to continue to encourage a binary view of sexuality.

Where is the love?

When debating the Bill in the Commons, Conservative MP Nadine Dorries emphasised that the drafted Bill did not create equality but instead highlighted ‘the inequalities that will always exist, because the definition of marriage is based on the definition of sex’. Labour MP Helena Goodman reiterated this sentiment rather more bluntly, asking ‘why [is] the Bill fixating on biological heterosexual intercourse?’

Sex classifications have historically given further clarity to legislation, allowing less scope for confusion in the courts. But with an estimated 1.1 million LG&B individuals in the UK and a further 650,000 who are transgender and non-binary, gendered definitions are outdated and offensive to many. Nonsensically, this portion of the population are incapable of committing legal adultery or may be proved innocent upon transition. It is clear that the ever-increasing LGBT population cannot be ignored.

Same Difference?

Craig Whittaker has commented on the Government’s decision to drop ‘equal’ from the title of the Bill ‘probably because it does not promote equality’. Admittedly it is true that filing for divorce on alternate grounds (namely unreasonable behaviour) has little to no effect on financial settlements and child arrangements.

Many call for equality but others suggest that on grounds of unreasonable behaviour one can specify sexual infidelity. The Equality Network in Scotland (an LGBTI rights group), for example, held several focus groups on the matter and released the following statement:

‘We agree with the approach taken in the bill, which applies the law on adultery and other sexual infidelity equally to same-sex and mixed-sex marriages, and allows divorce on grounds of sexual infidelity for all marriages.’

This pragmatic viewpoint reflects the realities of the LGBTQIA community. With so many battles to fight, why another? In the struggle to be equal the community is often told that it is sufficient to be lawful. But it is really enough?

 

 

Advice to leaseholders

Advice to leaseholders

Team members Stuart Merrison, Chris Macartney and Mark Chick are holding an ‘advice surgery’ with the E17 Warner Residents’ Association on 24 January 2017. The meetings focus on initial advice and signposting and are only available on a pre-booked basis via the residents’ association.

If you have a leasehold enquiry and would like to know more about extending your lease, buying your freehold or consent or management issues then contact us by emailing leasehold@bishopandsewell.co.uk or by telephoning 020 7631 4141 and asking to speak to a member of the landlord and tenant team.

Basement Excavations: High Court case sets new planning precedent

Basement Excavations: High Court case sets new planning precedent

The recent high court case of Eatherley-v-London Borough of Camden and Another at the end of 2016 has made changes about whether planning permission is required for residential basement developments.  Prior to this case it was usual, in certain circumstances, for a developer to rely on Permitted Development Rights* (“PDR”) rather than having to make an application for planning permission.  To rely on PDR the development works have to fall within the classes of development described in the General Permitted Development Order (“GPDO”) and the development must be within the curtilage of a dwelling house.

There has recently been a lot of bad press about significant basement excavations in London and this may be a reason why there is now more litigation on this issue. The judge in the above case decided that in the context of an original “two up two down” terraced house in suburban London, the new development of a basement (where previously there was none) could amount to two activities, each of substance:

  • The enlargement, improvement and alteration of a dwelling house
  • An engineering aspect of excavating a space and supporting the house and its neighbours

In the present case the court found that the engineering operation was necessary to achieve the developer’s aim, and was indivisible from it, there was a “separate activity of substance” and therefore express planning permission would be required from the local planning authority.

In light of the above it appears that it is a matter of fact and dependent on the degree of the works and, whilst PDR has the effect of granting planning permission for the enlargement, improvement and alteration of a dwelling house, it does not provide permission for any engineering aspect.

If you are considering carrying out excavation works to create a basement, you should ensure that your architect, surveyor and builders are fully up to date with this recent high court decision. 

* (under Class A, Part 1, Schedule 2 to the GPDO 2015)

Karen Bright, Partner – Dispute Resolution Team.

Landlord Investment Show – 8th November 2016

Landlord Investment Show – 8th November 2016

Members of the landlord and tenant and property teams are at the National Landlord Investment Show at Olympia today. Chris Macartney will be speaking about what to look for when buying a leasehold property and members of the team will be on hand to answer questions.

For follow-up or queries please contact leasehold@bishopandsewell.co.uk.

Home Office Launches European Passport Return Service and Online Forms

Home Office Launches European Passport Return Service and Online Forms

European nationals applying for UK residence documentation may benefit from a new ‘online’ application and passport return service launched by the Home Office this week.

The trial service allows individuals applying for a Registration Certificate or Permanent Residence Card to complete an online version of the paper form and pay the £65 fee online.

Those that wish to keep their passport during the decision-making process, can then hand in their application forms and supporting paperwork to a participating local authority as part of the new Passport Return Service.

Applicants must book and attend the local authority appointment within five days of completing the form. The local authority will then prepare a full copy of the passport and send off the application to the Home Office, returning the original passport to the applicant.

This all sounds great in theory. Is the Home Office actually trying to make things easier for a change? Well, perhaps so, but there are a number of points to bear in mind if considering the service.

Truly Digital? When is an online application not an online application?

Firstly, although the Home Office describes the application process as an ‘online’ one, applicants do in fact still need to print out and physically submit the application once complete, either by post or through a participating local authority.

That said, the online version of the form does ‘streamline’ the questions, so applicants should in theory only have to deal with sections that are relevant to their circumstances – which might well be a relief to anyone who has recently looked at the novella-sized EEA(PR) form, with its 85 pages intended to cover every possible set of circumstances.

However, as any immigration solicitor can tell you, it is rare to find a client whose circumstances fit exactly into the ‘box’, and on a paper form, you can basically write what you want, where you want. There is no such option with the ‘online’ form. You are forced to complete every single box before you can submit the application.

Equal Opportunities. Who can use the new services?

Secondly, the online application and Passport Return Service are strictly limited to EEA nationals. This means that non-EEA family members cannot be included on the application form, which will make it utterly pointless where a couple or family wants to apply at the same time and rely on the same documentation.

Thirdly, it seems that some EEA qualified persons are ‘more equal than others’. Students and self-sufficient applicants are not allowed to use the online service if they are reliant on a family member to provide income or are financially responsible for other family members. This will effectively disqualify a large number of individuals from using it.

Fast-Track? Well, this is the Home Office after all….

Fourthly, the Home Office initially touted this as a ‘fast-track service’ when it announced plans for the Passport Return Service some weeks back.

However – perhaps belatedly realising that simply asking an applicant to type rather than handwrite their forms would make no actual difference to the number of caseworkers available to decide applications – all reference to the decision-making speed has been ditched.

As such, our best guess is that the application will take the same amount of time whether it is submitted ‘online’ or by post.

With the rush for residence documentation triggered by the Brexit vote and the Home Office’s insistence on Permanent Residence Cards for citizenship applications, this is currently taking around six months.

Passport Return Service. Watch out for the small print

Finally, and perhaps most importantly, it is important to note that the local authorities engaged in the Passport Return Service are not providing an application checking service. The £15 fee covers copying the passport and the posting of the application only.

That said, there is nothing to stop applicants with any doubts about their documentation or the application form from engaging a legal professional to assist with preparing or simply checking the application, before then submitting the application itself through the Passport Return Service.

In short, there seems to be little benefit to the online service, except perhaps to simplify the application form. However, for those Europeans who need to travel and who don’t have identity cards, the Passport Return Service looks set to be a welcome addition.

To see how we can assist you please contact our Immigration department on 020 7631 4141.

 

Financial claims in the English family courts following an overseas divorce

Financial claims in the English family courts following an overseas divorce

Following their divorce in Saudi Arabia, Ms Christina Estrada, the wife of Saudi billionaire Dr Al-Juffali, secured a divorce settlement in the English courts totaling £75 million.

Ms Estrada, a US citizen who had lived in the UK for over 20 years, succeeded in obtaining one of the largest financial divorce settlements seen in England.  Dr Al-Juffali had obtained a divorce in his home country of Saudi Arabia in 2014 under Islamic law, without Ms Estrada’s knowledge, after he had lawfully taken a second wife in 2012.  Ms Estrada was not entitled to any financial provision upon the divorce in Saudi Arabia.  She therefore applied to the English courts following the divorce to secure financial provision for herself and their teenage daughter.  Dr Al-Juffali tried to stop the English court case from proceeding, by claiming diplomatic immunity, but was unsuccessful in his bid.

Whilst the astronomical amounts involved in this case have little in common with most divorce cases, it usefully publicises the ability of our courts to make a financial order following an overseas divorce if no, or no adequate, financial provision has been made in the foreign jurisdiction.

If there is an international element to a marriage it is not uncommon for consideration to be given as to which country should deal with the divorce and related financial matters.  Rightly or wrongly the English legal system is viewed as the most generous to wives.  Very often the country where one or other spouse first lodges a divorce petition is ‘seized’ and financial matters have to be dealt with in that country.  Therefore one can often find oneself in a ‘jurisdictional race’ to start divorce proceedings in the country which is most favourable to your client.  This is a complex area of law and one where it is essential to get specialist legal advice early on.

In certain circumstances the English courts are prepared to make an order in relation to the couple’s financial assets after a foreign divorce, annulment or judicial separation. The application is made under Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA). The applicant must have a connection with England and the marriage and the overseas divorce must also be legally recognised by English law.  If certain criteria are met, the English courts have a discretion to make the same orders as if the divorce had taken place here.  However the English courts are clear that such provision does not allow a party a second bite of the cherry; they cannot obtain more than if all of the proceedings had taken place here originally.

Part III applications can be useful in a number of scenarios.  For example it may be that the court in the country where the divorce has taken place cannot make orders in relation to assets which are in England such as property or pensions.  Therefore, after a financial order has been made abroad, the English court could be asked to make another order dealing with the assets here.  Further, unlike in some foreign jurisdictions, the English courts are willing to make financial orders in respect of assets located abroad (although enforcement of orders overseas is a different issue).  In the Estrada case there was absolutely no financial provision made for her by the Saudi Arabian courts, let alone simply ‘inadequate’ provision, so the English court was willing to consider all of her potential claims.

In order to bring a Part III application after an overseas divorce, the applicant must show that:

  • Either of the parties to the marriage was domiciled in England and Wales on the date of the application for permission to bring a Part III claim or on the date that the overseas divorce, annulment or legal separation took effect,

or

  • Either of the parties to the marriage was habitually resident in England and Wales throughout the one year preceding the application for permission or throughout the one year preceding the date on which the overseas divorce, annulment or legal separation took effect,

or

  • Either or both of the parties had, at the date of the application for permission, a beneficial interest in possession in a dwelling-house situated in England and Wales that was at some time during the marriage a matrimonial home of the parties.

There are exceptions to the rule, of particular note is that if another EU Member State has already made a financial order concerning maintenance then the courts in England may not be able to make a further order.  This is a complex area of law and specialist advice should be sought. It is possible his will become more complex after Brexit.

Of further note is that if the only basis for bringing a claim in England is that there is a property here which was the matrimonial home then the English court can only make orders relating to the home or make a monetary payment up to the value of a party’s interest in that property.  The court cannot make orders in relation to maintenance.

If the applicant has remarried they cannot apply to the English courts for financial provision.  It does not matter if the respondent has remarried.

If the applicant can bring a Part III claim then the first step is to apply to the court for permission to make the application.  Permission should be granted if an applicant can show that they have a ‘substantial ground’ for making the application.  If the court is not satisfied that there is a ‘substantial ground’ then it will dismiss the application.

When deciding whether to grant permission the court will take into account the same factors that it would look at when making a decision at a final hearing.  It will look at whether, in all the circumstances of the case, it would be appropriate for the English court to make an order bearing in mind the following factors which are set out in s16 of the MFPA 1984:

  • the connection which the parties have with England and Wales, with the country in which the marriage was dissolved or annulled or in which they were legally separated, or with any other country;
  • any financial benefit which the applicant or a child of the family has received, or is likely to receive, in a foreign country as a result of the divorce, annulment or legal separation;
  • in a case where a financial order has already been made by a foreign court, the court will look at the details of that order and the extent to which it has been complied with or is likely to be complied with;
  • any right which the applicant has, or has had, to apply for financial relief from the other party in a foreign country and, if the applicant has not pursued such an overseas claim, the reason for not doing so;
  • the availability in England and Wales of any property in respect of which the courts could make an order;
  • the extent to which any order made under Part III is likely to be enforceable;
  • the length of time which has elapsed since the date of the divorce, annulment or legal separation.

If the court does grant permission for a Part III claim to proceed it can then consider an application by the applicant for an interim maintenance order, including provision for payment of the applicant’s legal fees.  The applicant needs to show an ‘immediate need’ for maintenance.  An interim maintenance order can only be made if the court has accepted jurisdiction on the basis of habitual residence or domicile; therefore not if jurisdiction is based solely on the former matrimonial home being in England.

In terms of the court procedure for dealing with the Part III claim, this will be the same as if the divorce had taken place in England (although, after granting permission, the court can limit the issues and claims that it is prepared to consider in the proceedings).  The court will direct both parties to provide full and frank financial disclosure using a court form E and will list the case for a Directions Appointment.  If the application cannot be settled by agreement the court can make a final decision at a contested hearing.  When making a decision the court will consider all the circumstances of the case, in particular the factors set out in s16 MFPA, as well as the factors set out in s25 of the Matrimonial Causes Act 1973 which are considered in all financial remedy applications following a divorce in England.

Part III claims can be an invaluable, even essential, route to achieving a just outcome following an overseas divorce. Before embarking upon an application it is important to obtain specialist legal advice to ensure that that there are grounds for making the application and to assess the prospects of success. If you have any queries in relation to the issues set out in this article please call 020 7631 4141 and ask for a member of our Family team.

 

Divorcing spouses be warned: disobey Family Court orders at your peril

Divorcing spouses be warned: disobey Family Court orders at your peril

In May 2016 court reports revealed a further example of the consequences of a divorcing spouse failing to comply with orders made in the family court (Trott v Trott & Anor [2016] EWFC B35).

The Family Court has the power to attach a penal notice to an order.  In the context of financial remedy proceedings this could be an order requiring a spouse to disclosure information, preventing the disposal of assets or it may be an order requiring one party to make financial provision to their spouse.

A penal notice warns a party that they may be sent to prison if they do not comply with the order. When a party fails to comply with a court order which has a penal notice attached the other party may apply to court for a committal order.

If the court is satisfied beyond all reasonable doubt that the offending party has breached the order (is in contempt of court), the judge has the power to impose a fine or prison sentence (which can be suspended). Parties will however only ever serve half of such a prison sentence.

Committal orders are a remedy of last resort.  The purpose of a committal order is twofold; to impose a punishment and to induce compliance with the court’s order.

Trott v Trott

Andrew Trott recently found himself sentenced to prison after he failed to comply with two court orders in ‘acrimonious’ court proceedings with his first wife Sharon Trott.  His second wife Lisa Trott, who found herself subject to orders of the court after her husband failed to comply, also received a prison sentence for contempt of court but the judge suspended her sentence.

On 7 October 2014 Mr Trott had been ordered not to dispose of or deal with a number of matrimonial assets including a Mercedes Sportshome.  He was also required to immediately pay the net proceeds of sale of a caravan (£8,000) to a solicitor for safekeeping.  The purpose of such orders was to safeguard assets until such time as they were divided with Sharon Trott.

On 30 April 2015 the court made a further order preventing Mr Trott from disposing of the proceeds of sale of his shares in a taxi business known as City Taxis.  This order was later varied by the court to enable him to use £8,000 of the £100,000 that he had received from the sale.  However he failed to preserve any of the £100,000.  Instead he invested it in other business ventures which enabled him to continue to make payments in respect of the mortgage on the former matrimonial home and to support his new family with Lisa Trott.

After Mr Trott failed to provide the court with information about his finances, an order was made in December 2015 requiring Lisa Trott to provide bank statements and documentation about the purchase of a property so that the funds could be traced.  Lisa Trott received the orders but ignored the content.

Sharon Trott applied to the court for her former husband and his new wife to be found in contempt of court. The application came before Her Honour Judge Hudson in April 2016.

Andrew and Lisa Trott accepted that they had breached the orders but put forward arguments in mitigation.

Mr Trott claimed that he and Sharon Trott had since agreed that the Mercedes should be sold and the money given to their son to enable him to purchase a car.  Sharon Trott accepted that she had agreed to this but stated that he did not comply with the conditions of that agreement.   Mr Trott also argued that he had put the money from the sale of the caravan to the use of his and Sharon’s adult children with her agreement.  She disagreed with this claim.

With regards to the most serious breach, failing to preserve the proceeds of sale of his shares, Mr Trott sought to argue that the money had not been disposed of as such and would be available for division with Sharon Trott.   However Her Honour Judge Hudson noted that in December 2015 he conceded in court that he was unable to retrieve the funds and since that time had taken not steps to rectify the situation.

On behalf of Lisa Trott it was argued that without legal advice she had failed to appreciate the seriousness of her failure to comply or the importance of her doing so.  By the time of the contempt application hearing she had provided the required information.

Lisa Trott was sentenced to 14 days in custody.  However this was suspended taking in to account the admission of her breaches, subsequence compliance and the fact that she was the full time carer of a child.

Mr Trott was sentenced to 28 days for each of the first two breaches.  In relation to use of the proceeds of sale of the shares he was given a 3 month sentence.  The judge decided that this sentence reflected the fact that it was a further breach, it involved a higher amount of money and the circumstances of the breach in which he disregarded the direction of the court.  “In the light of the gravity of the circumstances of the three breaches seen together and their repeated nature” the judge was unwilling to suspend the sentences.  They will run concurrently.

So how did these sentences compare with other recently reported cases?

Zuk v Zuk [2012] EWCA Civ 1871  

In 2011 Mr Zuk found himself held in contempt of court and imprisoned for a period of 9 months after he failed to pay a lump sum of £15,000 to his former wife.  When the original order for payment had been made the court was satisfied that he had the means to pay.  The judge attached a penal notice after Mr Zuk informed the court that he had no intention of complying with the court’s order.

This is an interesting case as the committal proceedings were ‘peppered with error from beginning to end’.  On appeal Thorpe LJ found that the judge who had decided that Mr Zuk (who was unrepresented at the time) was in contempt of court, and who had imposed the 9 month sentence, had incorrectly applied the law. The judge had mistakenly believed that she had powers under s14 of the Contempt of Court Act 1981 which would have enabled her to impose a sentence of up to 24 months.  In fact the court only had the power to impose a maximum term of 6 weeks under the Debtors Act 1869.  By the time Mr Zuk’s appeal was heard he had unjustly served 4 ½ months in prison.

The appeal judgment makes interesting reading as it lists 8 further failings on the part of the committal hearing judge, thus emphasising how the “greatest care” must be taken by the court and legal representatives to ensure that committal applications are dealt with correctly.

Young v Young [2013] EWHC 34 (Fam)

In January 2013, Mr Young faced a second application by his wife for a committal order.  This was a high profile and long running case.  Mrs Young contended that Mr Young was worth hundreds of millions of pounds and that he was hiding his assets to avoid his financial obligations towards her and their children.  Mr Young argued that he had lost his considerable wealth as a result of the “implosion of his business empire leaving nothing but debts”.

On this particular application the court decided that Mr Young had failed to comply with a court order from November 2012 which required him to produce various information.  A penal notice had been attached to the November 2012 order in light of his noncompliance with previous orders and given that an earlier committal order had been made against him in June 2009 (he had received a suspended 6 months sentence on that occasion).

In January 2013 Mr Young purported to provide the required information the day before the committal hearing.  He argued in mitigation that he had been ill in December and January and for a period had been an inpatient in hospital.

Mr Justice Moor was satisfied beyond reasonable doubt that Mr Young was in contempt of court by failing to comply with the November 2012 order.  In light of this second finding of contempt it was decided that neither a fine nor a further suspended sentence could be justified.  Mr Young’s ill health was not accepted as a reason for delaying a custodial sentence and he was sentenced to 6 months in prison.

Thursfield v Thursfield [2013] EWCA Civ 840

Mr Thursfield sought to appeal a committal order sentencing him to 24 months in prison following his failure to comply with a disclosure order which was made alongside a freezing order.   There were a number of aggravating factors in this case which led the committal judge, HHJ Purle QC, to impose the maximum sentence available.

By way of background there was long running litigation in the US State of Michigan between Mr and Mrs Thursfield resulting in her securing judgment in her favour for the sum of US$5.8million.  Mr Thursfield was appealing part of that award and a decision in the USA was pending.  Mrs Thursfield sought to enforce the judgment in England and obtained freezing and disclosure orders dated 6 December 2011.  The English court was satisfied that such orders did not prejudice the husband pending the outcome of his appeal in the USA.

Mr Thursfield failed to comply with the disclosure order and his wife applied for a committal order.  The judge was content that Mr Thursfield was in contempt of court and, in light of his refusal to attend court (he remained outside the jurisdiction) and his continued noncompliance, imposed the maximum sentence of 24 months.  The judge stated that 12 months was attributable to the punitive element of committal and the other 12 months to the coercive aspect of such an order.

The Court of Appeal dismissed Mr Thursfield’s appeal against the length of the sentence. They found that the sentence was not ‘manifestly excessive’ as the husband claimed given the facts of the case. The appeal court was highly critical of Mr Thursfield’s continued noncompliance and the fact that he continued to evade the jurisdiction of the court (and therefore his sentence) by remaining outside of England and Wales.

Such cases do serve as important reminders of the court’s powers and willingness to impose serious sanctions. One suspects Mr Trott, who it appears was not legally represented prior the committal hearing, may have taken a very different approach to the court proceedings had he (and his second wife) fully appreciated the consequences of their actions.

If you require any further guidance or advice please call 020 7631 4141 and ask for a member of the Family team.

 

Does my new partner’s wealth affect my divorce?

Does my new partner’s wealth affect my divorce?

This is a commonly occurring aspect in divorce cases and the Court of Appeal has  recently dealt with this issue in the case of John Hart and Karen Hart which featured prominently in the national press recently.

The case attracted media attention as Mrs Hart was awarded a divorce settlement of £3.5million despite her ex-husband arguing it should be less as she lived with another man, a point which was readily accepted. The parties had been married for 20 years and had amassed £10m by the time of their divorce.

Press coverage prompted some on social media to refer to Mrs Hart, rather predictably, as a ‘money-grabber’. It is perhaps unlikely that any of those tweeters would have read the actual judgment in the case before providing their own. Others have hailed the judgment as a victory for women’s independence.

It is unsurprising although a little unfortunate that the media seized on the ‘big-money’ aspect of the case when Mr Hart’s application for permission to appeal (and indeed Mrs Harts own cross appeal) raised more about the nitty-gritty of the case and what were described as the main parts of the appeal.

In summary, Mr Hart complained (amongst other things) that his former wife should not receive all of her money due from the award the judge had made due to  the fact that she was living with another man. He believed that the trial judge’s finding after a 20 year marriage that; “I do not consider that the presence of [the new partner] in the life of Mrs Hart should in any way diminish her needs” was wrong and the fact of the relationship should not have been ignored.

Mrs Hart countered that, after more than 20 years of marriage, she was “anxious to remain financially independent”. She gave evidence at the final hearing that she cherished her independence and didn’t want to effectively be forced to have to rely on another man for money anymore to maintain her lifestyle and that she had no current intention to marry.

The President of the Family Division Sir James Munby heard the renewed application for permission to appeal but agreed with the trial judge’s decision upholding the original award.

He determined that in a long marriage such as this, the trial judge had been correct to conclude that Mrs Hart’s sharing of household bills with her new partner of many years simply had no bearing on her right to seek a fair share of the matrimonial assets – which was made up of a mixture of cash, shares and other realised investments.

Was the judge right to allow Mrs Hart to have a right to independent living without calling on the wealth of her new partner?

Mr Hart had sought to rely on what had been said in another leading High Court case on the issue;

“(new) Relationships like this always are a significant fly in the ointment in the assessment of need.  One cannot make assumptions, if it is not full blown cohabitation akin to marriage, that it will grow into that, because if it does not the wife may be left stranded….if the assumption is wrongly made.  On the other hand, if one makes a needs assessment on the basis that she is a single woman and she soon cohabits, then the paying party in the ancillary relief proceeding can rightfully feel significantly aggrieved.”

Reading this, it is understandable why Mr Hart may have been confused by what he saw as conflicting judgments.

So when is a new partner’s wealth relevant to financial determination?

The horridly typical but perfectly proper lawyer’s answer is that it will depend on the prevailing circumstances, but simply stated, the court can have no interest in dividing up assets solely belonging to another person not a party to the marriage. Similarly the court cannot order a ‘non-party’ to pay maintenance, however judiciously encouraged they may be to play a part in such cases.

The relevance comes into play when the new partner’s resources are utilised to help the spouse who would otherwise be paying outgoings or other obligations which he/she would otherwise be responsible for.

The rationale is that if a party’s disposable income is freed up by virtue of these other contributions from the new partner, either there will be greater disposable income available for maintenance to be paid or conversely for the other party that there will be less need for maintenance from the other party to the marriage.

The same rationale applies to restrict capital need say when one spouse is to buy a new property with a new partner also investing and therefore the capital need is lower. It will depend on the nature of the relationship and what is intended. In Mrs Hart’s case she gave evidence that she did not intend to remarry and prized her independence – the sharing of bills was mundane and was not connected to her claims for a fair share of capital.

The duty to disclose

Regardless of how this decision is perceived, it remains important for parties to be completely open during the whole of the case as to their plans to remarry or cohabit. Certain pro-forma court documents will require answers to be given on this issue and the party that seeks to hide a relationship may come to grief even after the case has finished as if a judgement was obtained on the basis of material non-disclosure of fact  then the judgment is at risk of being set aside with costs. Flagrant non-disclosure may also be punishable by further court sanction or even criminal penalty.

What information the new partner might have to provide

This will depend on the case but the usual starting point is for the spouse in the new relationship to provide as much information as they are reasonable able to ascertain. Beyond that, to get to the truth of the issue, the new partner should be aware that the court has the power to summons third parties to provide witness statements, to produce bank accounts and other documents and they may wish to take their own advice as to the extent of their own disclosure before doing so.

Conclusion

Although Mr Hart robustly told the court that ‘if the case had come before 10 judges, 9 of them would have agreed with him’, he was ultimately too bold in that analysis. At least 3 thought he was wrong.

It does appear from the Court of Appeal judgment that that Mr Hart perhaps went a little off piste in his criticism of the trial judge – it will hardly ever help to argue unfair treatment in general as shown in this case and it just detracts from any sensible main arguments which were valid arguments for Mr Hart to raise in general but not on the facts.

For further reading click here.

 

If you require any further guidance or advice please call 020 7631 4141 and ask for a member of the Family team.