Re Kumar (A Bankrupt), ex parte Lewis v Kumar: 1993

H had transferred his interest in the jointly owned matrimonial home to W for her promise to have sole liability for the mortgage debt. Nearly a year later her divorce claim for capital provision was dismissed by consent on the basis that H had already transferred his interests to W. H was bankrupted, and his trustee applied under Section 339. The trustee relied on both paragraphs (a) and (c) of Section 339(3). He said that the consideration supporting the transfer of the bankrupt’s interest was a release of such claims as she might have had under the 1973 Act, sections 23-25.
Held: The assertion failed. The transfer of the property happened before the divorce and there was no evidence to support the contention that the transfer was in return for the Respondent agreeing not to apply for further capital provision under Sections 23-25. Ferns J said: ‘Re Abbott, although it is a decision on Section 42 of the Act of 1914, is applicable to section 339 to the extent that it decides that a compromise of a claim to a provision in matrimonial proceedings is capable of being consideration in money or money’s worth’.
W’s counsel submitted that W had provided consideration. Ferns J said: ‘I would add that even if I had accepted the argument that there was such a compromise of Dr. Gupta’s prospective claim for capital provision as was contended for on her behalf, it appears to me that I would have been driven to substantially the same conclusion. The transfer of Mr. Kumar’s interest in 43, Broadwalk was a disposal of his only remaining capital asset of any significance. I cannot believe that any divorce court would have so exercised its jurisdiction under section 24 of the Matrimonial Causes Act 1973 as to require Mr. Kumar to transfer to Dr. Gupta, who had a superior earning capacity, substantially the whole of his capital, leaving him without the means to contribute from capital to the cost of acquiring a separate home for himself. In my view, in all the circumstances of this case as I find them, the transfer of his interest in 43, Broadwalk, contained a substantial element of bounty on the part of Mr. Kumar even if, as I find not to be the case, Dr. Gupta had agreed in return not to seek further provision out of capital.’


Ferns J


[1993] 1 WLR 224


Insolvency Act 1986 339, Matrimonial Causes Act 1973 23 24 25


AppliedRe Abbot (A Bankrupt), ex parte Trustee Of The Property Of The Bankrupt v Abbot QBD 1983
An ancillary relief order was made in December 1978, following a compromise agreement. It provided for the sale of the former matrimonial home and the payment to the wife from the proceeds of sale of andpound;18,000. The husband was adjudicated . .
CitedIn re Abbott ChD 1983
W divorced H, and under a property adjustment order made by consent, the jointly owned matrimonial home was transferred to her outright. H was made bankrupt less than two years later, and the trustee sought a declaration that the consent order or . .

Cited by:

CitedHill and Another v Haines ChD 3-May-2007
The husband and wife had separated and divorced. In ancillary proceedings, the family home had been transferred to the wife under a court order. The judge had noted that the husband was hopelessly insolvent, and he was made bankrupt some time later . .
CitedHaines v Hill and Another CA 5-Dec-2007
On the divorce, the husband was ordered to transfer his share in the house to the wife. On his bankruptcy shortly after, the order was confirmed. After the wife sold the property at a profit, the trustee in bankruptcy applied to set the transfer . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Family, Land, Insolvency

Updated: 01 May 2022; Ref: scu.252317