From Florence to the Court of Appeal

Divorce|August 8th 2011

Today I have returned to the office after a fortnight’s holiday in Italy. I haven’t taken such a lengthy break in a couple of years. We spent a week away at Easter, but for me the time was overshadowed by a tragic event. It also turned to be a busy week at the office and, all in all, it wasn’t much of a break.

However this fortnight away provided a much needed rest. I did very little work (although there are some clients and Stowe Family Law partners who may testify differently…) and it was a chance to recharge my rundown batteries. Many thanks to Harrogate’s Managing Partner, Julian Hawkhead and trainee Laura Guillon, for filling in for me on the blog.

Thanks too to John Bolch, whose Family Lore blog kept me fully up-to-date with family law developments while I was away.  A quick dip in to see what’s going on is all that’s needed, which is what I did each day. It’s a thoroughly entertaining blog and informative even over the weekend, when it becomes more fun.

I see that we both covered the Mostyn divorce, albeit in different ways! John Bolch has an irreverent sense of humor, which I love: as a full-time blogger and writer he is no longer bound in the same way as I am, by our professional conduct rules…….

I also read two cases of interest via Family Lore’s sister blog, Family Lore Focus. Yes, even relaxing by the sea, I was spotting cases which I thought would interest readers!

Yankah v Yankah

The first case, Yankah v Yankah, was an unsuccessful attempt by a wife of a bankrupt man to have her husband’s share of their home transferred to her. Predictably, she failed. Once bankrupted, a spouse’s half of the house transfers automatically to the trustee in bankruptcy. The court cannot transfer a husband’s half share to a wife, because in law that half-share is no longer owned by the husband. It’s tough, very tough, on the wife. Often, as in this case, the house is the only major asset in the case.

However, here’s a tip. The only saving grace in such cases is that a spouse is permitted to stay in the property for 12 months after bankruptcy is declared, before it needs to be sold so that the trustee can get his share. It is worth trying to negotiate a deal whereby, in exchange for an earlier sale date, the wife gets more of the equity. It can be done and we have done it for a client of ours who ended up much better off for it.

N v N

The other interesting case I read was N v N. This is a maintenance case. The period of maintenance was supposed to end after five years, at the end of 2009, but the order left the wife free to apply for an extension. The wife did so, and it turned out that she hadn’t done much about readjusting her life and getting decent employment. The court extended the term by two years.
There followed some ups and downs in the local court on appeal. When the case was heard before a circuit judge the wife was more successful, obtaining an order that extended to 2015 and thereafter a nominal payment for joint lives.

The husband appealed, citing fundamental procedural flaws by the circuit judge. The case ended up in the Court of Appeal before Lord Justice Thorpe, who set aside the decision of the circuit judge and restored the original order of the district judge who had heard all the evidence, and who had decided that no further extension would be permitted after a further two years. The district judge had applied what is called a s 28(1)(a) bar, under the Matrimonial Causes Act 1973.

Lord Justice Thorpe observed that the district judge had heard all the evidence, which the circuit judge had not, and therefore had a similar opportunity of weighing up all the facts. He wasn’t going to disturb those findings with which he could see nothing to disturb. The district judge had not been plainly wrong in exercising his discretion as he did.

But I wonder: was the district judge correct? Or was the (more senior) circuit judge the one in the right? While the Court of Appeal looked at the minutiae, which it had to do, has justice been done to that wife or has it been cruelly undone?

If anything, this case serves to graphically demonstrate the uncertainties of our judicial system of discretion. For example, an application for continuing maintenance is dependent upon facts and on the day, the application’s outcome depends upon how the judge sees those facts. The application is dependent upon the decision of one judge, who has absolute discretion as to what to do and, provided that the judge’s decision falls within wide parameters and is not plainly wrong, it will stand.

Judges may take different views from the same facts. Making the call for your client, therefore, isn’t a precise science. Inevitably, those who litigate may do so on the basis that you pays your money – and you takes your choice.

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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Comments(6)

  1. John Bolch says:

    Yes, it is very liberating to no longer be bound by professional conduct rules!

    Thank you for the very nice mention, and welcome back!

  2. Marilyn Stowe says:

    Grazie prego!
    Im eating a solitary piece of cheese and an apple right now staring at the screen hundreds of thoughts in my head trying to forget the taste of the best ever fresh white peach bellini at the Four Seasons Hotel Florence served all frothed up and the sight of the impossibly beautiful Medici Chapel and the piazzas and fountains and statues and……

  3.   From Florence to the Court of Appeal|Untouched Smile says:

    […] From Florence to the Court of Appeal is a post from: Marilyn Stowe Family Law and Divorce Blog […]

  4. The Experts: Maintenance law must be clarified | Marilyn Stowe Family Law and Divorce Blog says:

    […] recent Court of Appeal case of N v N, innocuous at first glance, raises some very important issues to this […]

  5.   The Experts: Maintenance law must be clarified|Untouched Smile says:

    […] recent Court of Appeal case of N v N, innocuous at first glance, raises some very important issues to this […]

  6. Tulsa Divorce Attorneys says:

    Glad you were able to get caught up on some much needed rest.

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