Kremen v Agrest: FD 15 Oct 2010

Application as to payment of funds held where the payer was a fugitive from justice, owing sums in maintenance to the claimant. W applied for an order setting aside a charge granted by H over property. In previous hearing the court had found that H had been motivated by extreme malice toward W and his children.
Held: Mostyn J said: ‘For W’s application to succeed the following has to be demonstrated:
i) That the execution of the charge was done by H with the intention of defeating her claim for financial relief. This is presumed against H, and he has to show that he did not bear that intention. See s23(2)(a), and 23(7). The motive does not have to be the dominant motive in the transaction; if it is a subsidiary (but material) motive then that will suffice: see Kemmis v Kemmis Welland and Others Intervening); Lazard Brothers and Co (Jersey) Ltd v Norah Holdings Ltd and Others [1988] 2 FLR 223, [1988] 1 WLR 1307, CA.
ii) That the execution of the charge had the consequence of defeating her claim. This means preventing relief being granted, or reducing the amount of any such relief, or frustrating or impeding the enforcement of any order awarding such relief. See 23(1) and s23(2)(b)
iii) That the court should exercise its discretion to set aside the charge. See s23(2).
iv) However, under s23(6) there is an exception to the general rule that all dispositions are liable to be set aside. The disposition in favour of LF will not be set aside if it can be shown at the time it was made that,
a) it was done for valuable consideration,nd
b) LF acted in relation to it in good faith, and
c) LF was without notice of any intention on the part of H to defeat W’s claim for financial relief.’ The knowledge of LF could extend beyond actual knowledge to constructive knowledge.


Mostyn J


[2010] EWHC 2571 (Fam), [2011] 2 FLR 478, [2011] Fam Law 567




Matrimonial and Family Proceedings Act 1984 23


England and Wales


CitedKemmis v Kemmis (Welland and Others Intervening) CA 1988
H had mortgaged the matrimonial home to release funds to support his lifestyle. The bank knew about the family circumstances and the mortgage was set aside at first instance. W applied to have the charge set aside.
Held: The application . .

Cited by:

See AlsoKremen v Agrest (No 2) FD 3-Dec-2010
An application was made in ancillary relief case to set aside the transfer of a share in a company said to have been backdated to defeat the court’s jurisdiction.
Held: Mostyn J considered an There was a ‘strong practical reason why the cloak . .
See AlsoAgrest and Another v Kremen CA 24-Jan-2011
Application for permission to appeal. . .
See AlsoKremen v Agrest CA 13-Apr-2011
. .
See AlsoKremen v Agrest CA 19-Oct-2011
. .
See AlsoKremen v Agrest (No11) FD 19-Jan-2012
Financial Remedy: Non-Disclosure: Post-Nuptial Agreement . .
See AlsoKremen v Agrest CA 5-Feb-2013
. .
CitedABC v PM and Another FC 5-Mar-2015
The parties were involved in substantial ancillary relief disputes. W now complained that H had charged his only asset within the jurisdiction, the house in which she lived, to secure his legal fees. She had already asserted a claim against it . .
Lists of cited by and citing cases may be incomplete.


Updated: 16 August 2022; Ref: scu.430388