A closer look at Hart v Hart

Family Law|June 6th 2016

This case made headlines in the national newspapers a couple of weeks ago. What grabbed the attention of the media was the fact that the wife still received a £3.5 million divorce settlement, despite the fact that she was living with another man. The case was considered to be of such interest that the Courts and Tribunals Judiciary took the slightly unusual step of publishing the judgment on its website the other day. I’ve read the judgment and I think that there are some other points of interest, apart from the one that made the headlines.

First of all it should be pointed out that both parties sought to appeal against the financial remedies order made by Judge Wildblood, not just the husband. The wife’s application for permission to appeal was granted, and the husband’s was not – the wife’s appeal remains to be heard.

This judgment, handed down by the President of the Family Division Sir James Munby in the Court of Appeal, concerns the husband’s renewed application for permission to appeal. The husband appeared in person and essentially put forward six grounds of appeal.

The first ground is the one we heard about in the newspapers: that Judge Wildblood was wrong in his decision that the wife’s cohabitation was not a matter which led to any reduction in her needs. I don’t propose to say much more about this one, save that I agree that Judge Wildblood was entitled to take the view that the wife’s relationship with another man did not diminish her needs. To put it another way, the wife was entitled, after a long marriage and having not remarried, to a sum sufficient to enable her to meet her own needs.

The second ground is one that, with respect to the husband, I suspect is often put forward by litigants in person: that the judge had treated him unfairly. This claim failed because the husband had not put before the court the transcript of the relevant parts of the proceedings, without which the court was in no position to evaluate whether there has or has not been unfairness in the process. Quite how a litigant in person is to know that he should provide a transcript, I’m not sure.

The third ground of appeal illustrates a principle that is also, I think, particularly relevant to litigants in person: you cannot complain about your treatment by a court if you do not cooperate with the court (I’m sure there is some Latin expression for this, but I can’t recall it). The husband complained that Judge Wildblood had treated his interest in a family trust as an asset of his, but had said that the wife’s interest in the same trust was something that would never be available to her. As Sir James said, the complaint might have some plausibility but for the fact that throughout the proceedings the husband had failed to provide the court with appropriate and satisfactory evidence. In particular, the court had very sparse information relating to the trust, as the husband had chosen not to provide it. In those circumstances, as Sir James said, the complaint identified by the husband dissolves:

“He can hardly criticise the judge for coming to the conclusion he did in the light of findings which in my judgment the judge was fully entitled to make in the light of the evidence he had heard — or rather the evidence he had been deprived of — and for the reasons he gave.”

I can’t say much about the fourth ground of appeal, as there is little detail in Sir James’s judgment. It relates to Judge Wildblood’s treatment of the profit earned on certain loans. The husband asserted that the judge had made an error, but Sir James disagreed, saying that Judge Wildblood was entitled to come to the conclusion that he did.

The husband’s fifth point is described by Sir James as “the major part of his grounds of appeal”. It relates to Judge Wildblood awarding the wife a lump sum of £273,000 to exonerate her from potential future capital gains tax (CGT) liabilities. The husband argued that the wife may not dispose of the relevant assets in her lifetime, in which case she would not incur a CGT liability. Whilst this was true, Sir James found that Judge Wildblood was entitled to make provision for the wife, as the liability was more likely to accrue than not to accrue.

The final ground for the husband’s appeal was that Judge Wildblood had done nothing to enforce the payment of a sum of £298,000, which he asserted was owed by a company belonging to the wife to a company belonging to him. However, as Sir James pointed out, this was a matter that was outside the ambit of these proceedings. In any event, if the sum was owed then it could be recovered in the usual way.

The husband had therefore failed on all grounds and, accordingly, his application for permission to appeal was refused.

The full judgment can be read here.

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  1. spinner says:

    If the money was made during the marriage then why would her subsequent relationship affect how much of the money made during the marriage she was entitled to as in for the duration of the marriage it’s a partnership or am I missing something.

    I had thought the the subsequent relationship or marriage only came into effect when calculating needs of spousal maintenance.

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