High Court judge rules on permission to appeal in divorce

Divorce|September 22nd 2014

Litigants seeking to appeal financial settlements in divorce should apply for permission with the judge who heard their original case, the High Court has declared.

The case of AB v CD concerned a couple who met in 1999. The wife, a journalist by profession, had by then already bought her own home in Bristol. Sitting in the Family Court, Mr Justice Mostyn characterised this as “pre-marital property”. The wife later acquired a second property from her own financial resources.

The husband worked as a media copywriter and had only a modest income and limited resources. However, he came from a wealthy farming family with extensive holdings in Pembrokeshire.

The couple moved to Pembrokeshire in 2002 and lived in property belonging to his parents. After establishing a media consultancy, which they jointly owned, the couple married in February 2003.

The following year they were given a derelict property by the husband’s parents which they successfully restored and sold on. The couple then moved into a farmhouse, also belonging to the husband’s parents and converted this with using money raised by the sale of the cottage.

In 2009 a legal trust was established in relation to the farmhouse. The wife claimed she was unaware of this and only discovered the existence of the trust after the breakdown of the marriage.

Later the couple applied to adopt a child. The girl was placed with them for adoption in March 2012, but before the formal adoption process was complete, the couple separated. As a result, despite the objections of the girl’s natural mother, the girl was formally adopted by the husband alone last year.

The couple separated on 1 September 2012, and the wife filed for divorce the following month.

Mr Justice Mostyn awarded the woman £250,000 from property sales, without maintenance payments, saying this would be sufficient to meet her needs. He noted the wife’s relationship with a new partner. Despite her claim that she did not intend to live with him, he declared:

“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.”

Following this ruling, the trustees applied for permission to appeal. The judge dismissed the various arguments submitted, describing them as “meritless” and “untenable”. In addition, he stressed the importance of applying for permission to appeal in such cases before the original judge, rather than filing for permission at a later date in the Court of Appeal. He quoted from the White Book, a legal reference work setting out procedure for civil proceedings. This lists a number of significant advantages to applying for permission during the initial hearing. These include the fact that the judge is fully informed of the facts of the case, no additional cost is incurred, and avoidance of the “expensive and time-consuming permission stage in the Appeal Court”.

Read the full judgement here.

Guidance due to be published later this year by the Law Society will bring additional clarity to the concept of financial needs after divorce.

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