Thomas v Thomas: CA 2 May 1995

H was a wealthy businessman, but, as a member of Lloyds, he had been required to charge the family home to secure potential liabilities. Also, the company of which he was managing director had always paid out only smaller sums by way of dividends, putting more into pension funds for the directors.
Held: The appeal failed. A judge may allow for the ability of other family members to assist on making a financial relief order. The court had been entitled on the evidence to ‘draw inferences as to the availability of funds to provide alternative security for the guarantee and for the Lloyds losses loan, and thus liberate the primary equity in the family home to provide a lump sum appropriate to the rehousing needs of the wife and children and of sufficient scale to justify shutting her out from any future capital relief.’
Waite LJ said: ‘But certain principles emerge from the authorities. One is that the court is not obliged to limit its orders exclusively to resources of capital or income which are shown actually to exist. The availability of unidentified resources may, for example, be inferred from a spouse’s expenditure or style of living, or from his inability or unwillingness to allow the complexity of his affairs to be penetrated with the precision necessary to ascertain his actual wealth or the degree of liquidity of his assets. Another is that where a spouse enjoys access to wealth but no absolute entitlement to it (as in the case, for example, of a beneficiary under a discretionary trust or someone who is dependent on the generosity of a relative), the court will not act in direct invasion of the rights of, or usurp the discretion exercisable by, a third party. Nor will it put upon a third party undue pressure to act in a way which will enhance the means of the maintaining spouse. This does not, however, mean that the court acts in total disregard of the potential availability of wealth from sources owned or administered by others. There will be occasions when it becomes permissible for a judge deliberately to frame his orders in a form which affords judicious encouragement to third parties to provide the maintaining spouse with the means to comply with the court’s view of the justice of the case. There are bound to be instances where the boundary between improper pressure and judicious encouragement proves to be a fine one, and it will require attention to the particular circumstances of each case to see whether it has been crossed.’
Waite LJ, Glidewell LJ
Independent 04-May-1995, [1995] EWCA Civ 51, [1995] 2 FLR 668, [1996] 2 FCR 544, [1995] Fam Law 672
Bailii, FLW
Matrimonial Causes Act 1973 25
England and Wales
CitedHoward v Howard CA 1945
Lord Greene MR said: ‘In my opinion there is no jurisdiction in the Divorce Court to make an order which will leave the husband in a state of starvation (to use rather picturesque language) with a view to putting pressure on trustees to exercise . .
CitedJ-PC v J-AF, orse J v J CA 1955
Before the divorce, H had earned a good income. After proeedings, his income was very substantially reduced. The court considered how it should deal with non-disclosure in a divorce financial application.
Sachs J said: ‘In cases of this kind, . .
CitedDonaldson v Donaldson 1958
The parties were to divorce. H was leaving the RAF and received a gratuity of andpound;2,200 and, having commuted his pension, received a total of andpound;7,624 which he gave over to the woman he now wished to marry. She in turn bought a mnk farm . .
CitedO’D v O’D CA 1976
When considering an application for ancillary relief by a wife, the court should consider the wife’s position, ‘not from the narrow point of ‘need’, but to ascertain her reasonable requirements.’ . .
CitedB v B (Financial Provision) CA 1982
‘judicious encouragement’ can be legitimately made by the court to induce family companies and discretionary trustees to help a maintaining spouse to satisfy financial arrangements made by the court: . .
CitedNicholas v Nicholas CA 1984
The Court upheld an appeal against an order for the husband to procure the transfer to the wife of a property belonging to a company in which he held a 71% shareholding, the other 29% being held by his business associates. However, both members of . .
CitedBrowne v Browne CA 1989
The court considered under what circumstances money held in trust for a party could be included within assets to be considered in an application for ancillary relief in family proceedings.
Held: The question is more appropriately expressed as . .
CitedCrittenden v Crittenden CA 12-Apr-1990
The word ‘property’ in the section refers only to property in which one or other of the parties has a beneficial interest, and the words ‘deal with’ relate to acts of dealing, not a lack of dealing with. . .
CitedGreen v Green FD 1993
In an ancillary relief application, Connell J awarded to the wife assets vested in a limited company whose entire share capital was owned by the husband. . .
CitedH v H (Financial Provision: Capital Assets) CA 1993
H appealed against an order adjusting the shares in the matrimonial home in favour of W.
Held: The appeal was allowed. The adjustment had been made without any particular rationale. Though H did stand to inherit, his mother was in robust . .

Cited by:
CitedBen Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .

These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.276288