Husband hit with costs order after wife wins appeal

Divorce|April 11th 2014

A husband who has been locked in a lengthy divorce dispute with his ex-wife has been ordered to pay his former wife’s costs after she won an appeal.

In JP v NP, the marriage had lasted 35 years. The couple had married in India, and they struggled to produce a marriage certificate after the wife filed for divorce in 2010, a problem which was later to have significant consequences. Their joint marital assets were £42,000.

In 2012, the husband paid the wife £21,000 after a deputy district judge ruled that: “the appropriate terms of the resolution of the financial applications would be for there to be an equal division of the assets”.

However, he subsequently applied to set aside this ‘financial remedy’ order on the grounds that the earlier judge had made the  ruling before the couple had reached the decree nisi stage in their divorce.

High Court judge Mrs Justice Eleanor King explained:

“Due to difficulties in locating the marriage certificate, decree nisi had not been pronounced at the date of the hearing; the learned Deputy District Judge therefore ordered the wife forthwith to complete her application for decree nisi…”

The husband argued that in making his financial ruling at that stage, Deputy District Judge (DDJ) Cornwell had been in breach of section 23 of the Matrimonial Causes Act 1973 and a judge ruled in his favour, setting aside the financial remedy order.

The wife appealed.

Sitting at the High Court, Mrs Justice Eleanor King said the earlier judge had known he did not have the authority to make a financial ruling before a decree nisi.

“It is clear from the order made by DDJ Cornwell on 15 August 2011 that he knew that he did not have the jurisdiction to make an order before decree nisi:

i) In the recital he carefully referred to the appropriate terms of the resolution of the financial application

ii) He ordered the wife to apply for decree nisi

iii) He ordered the matter to be listed for mention upon pronouncement of the decree”

Nevertheless, she continued:

“In my judgment it is apparent from the wording used by DDJ Cornwell that he was giving an indication of outcome by way of a judgment with the order to be made at a later date pursuant to [the Family Procedure Rules], the date being the granting of decree nisi. In accordance with that indication, an order was made after and not before decree nisi. It follows that I allow the wife’s appeal as I find that the Deputy District Judge did not err in law having had at all times the jurisdiction to hear the case, give a judgment and provide for the consequential order to be made after decree nisi.

The judge added:

“Costs must follow the event in this case and I make an order that the husband pays the wife’s costs of the appeal…”

The couple had become entangled in their litigation, Mrs Justice Eleanor King declared.

“Before embarking on a consideration of the jurisdictional issue, the court asked the parties to pause and consider whether there was any point from either side’s perspective in continuing with the litigation. The answer was given by Counsel that we are where we are and that by this stage the costs consequences resulting from the litigation render the case quite impossible to settle. The wife’s costs are now over £16,000.

It is against this deeply depressing background that I turn to consider how this couple, with total assets of only £42,000 found themselves in the High Court struggling, with the aid of interpreters, to understand the nuances of a legal argument the outcome of which would benefit neither of them.”

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