The perils of being too eager to recover what you believe you are due

Divorce|May 22nd 2019

All family lawyers will be familiar with the phenomenon of the client who has a strong sense of what they are ‘due’ or entitled to when it comes to financial remedies on divorce. Now, there is nothing intrinsically wrong about believing you are entitled to something, whether it be money or property, but a really strong sense of entitlement can sometimes cloud the judgment. Sometimes, for example, that party can be rather too eager to recover what they believe they are due, and end up incurring costs in a forlorn pursuit of their ‘entitlement’.

I’m not saying that the applicants in the two quite different recent cases to which I am about to refer suffered from this phenomenon, but certainly the cases act as a useful reminder of the perils of being too eager to recover what you believe you are due.

Both cases are recent judgments of Mr Justice Mostyn.

The first case is Purvis v Purvis, which concerned a rather unusual application by the husband. He was apparently convinced that the wife may have been hiding assets in the USA, which obviously should have been taken into account in any divorce settlement.

The facts of the case given in the judgment are rather ‘bare bones’, as the judgment did not require full details. Essentially, the parties began a relationship in this country in 1992, in 2001 they purchased a property in Florida, and they were married in January 2004. In July 2004 they acquired a cafeteria business also, I assume, in Florida, to which they moved at some point in that year. In December 2005 the marriage broke down and the husband returned to this country. Divorce proceedings were eventually commenced in this country in 2009, although they have yet to be finalised.

The husband made a financial remedies claim within the divorce proceedings. Obviously, both parties were required to make full disclosure of their means. However, the husband was not satisfied that the wife had provided sufficient explanation as to what had happened to the property and business in Florida. He claimed that the house is worth $250,000 and the business was profitable, with a turnover of $750,000. The wife was in sole control of both. However, the house was foreclosed in November 2008 and the company ceased to be registered in 2013.

The husband therefore applied for an order that a letter of request be issued to the authorities of the United States of America for the wife to be examined in Florida and to produce documentation to disclose the true nature of her financial resources. Mr Justice Mostyn refused the application, which he considered to be nothing more than a “fishing expedition”. The husband had no evidence as to the existence of any of the residue of the assets, he was merely “fishing” for that evidence.

The second case is Gladwell v Gladwell. This concerned an application by a husband to set aside a writ of control issued by the wife to recover a debt that was not yet due (a writ of control authorises a court enforcement officer to seize goods of a debtor in order to recover the debt).

The relevant facts of the case were that the court had made a consent order, setting out the financial settlement agreed by the parties. A term of the order was that the husband should pay to the wife the sum of £5,889 in lieu of her claims against his pension, from his share of the proceeds of sale of the parties’ timeshares in Malta.

Clearly, the payment was not due until the timeshares were sold. However, despite this, the wife issued the writ to recover the payment before the sale took place. On the 28th of March 2019 enforcement officers attended at the home of the husband. The enforcement officers’ costs had increased the debt to £8,304.72. That sum was paid by the husband on his credit cards.

The husband then applied to have the writ set aside. Without going into detail, Mr Justice Mostyn found that the writ was unlawful, and that the monies had been wrongly taken from the husband. He therefore set aside the writ and ordered that the monies be returned to the husband.

In both of these cases the applications had been misguided, quite possibly because of the applicants being too eager to recover what they believed they were entitled to. The result, however, was that the applicants had failed, and could well have incurred considerable costs for their efforts. The moral is: think hard (and preferably take the best available advice) before you act!

You can read the full report of Purvis v Purvis here, and of Gladwell v Gladwell here. As far as the latter is concerned, a word of warning: in family cases the party who was originally described as the ‘applicant’ can subsequently become the ‘respondent’, and vice versa, if the original respondent later makes an application of their own. Unsurprisingly, this can sometimes lead to a little confusion, so please bear it in mind if you read the Gladwell judgment.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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