The trustee sought to have set aside as an unlawful preference, the payment of 75% of the proceeds of sale of the former matrimonial home to the bankrupt’s wife, saying that the payment had been made after the presentation of the petition. The parties had previously compromised a claim for ancillary relief in the divorce on these terms. The trustee said that under Xydhias, the compromise was not an enforceable contract. The wife argued that Xydhias was obiter and contrary to Smallman.
Held: Whilst the court might have preferred the analysis of Ward LJ in Soulsbury the issue did not exactly arise. A precondition of there being a binding agreement was that the compromise deal must in any event satisfy the ordinary principles of contract. In this case, at the appropriate time, a vital element of the agreement, relating to pension sharing, was not yet concluded. There could be no agreement to enforce, and the appeal failed.
Cooke J
[2010] EWHC 2272 (Ch), [2010] NPC 93, [2010] 3 FCR 311, [2010] BPIR 1443
Bailii
Insolvency Act 1986 284
England and Wales
Citing:
Cited – Smallman v Smallman CA 1972
An order was sought under the 1882 Act to decide the shares in which the family home was to be held. An overall agreement had been negotiated in correspondence between solicitors that W should have a half share in the proceeds of sale of the . .
Cited – Soulsbury v Soulsbury CA 10-Oct-2007
The claimant was the first wife of the deceased. She said that the deceased had promised her a substantial cash sum in his will in return for not pursuing him for arrears of maintenance. The will made no such provision, and she sought payment from . .
Cited – Xydhias v Xydhias CA 21-Dec-1998
The principles of contract law are of little use when looking at the course of negotiations in divorce ancillary proceedings. In the case of a dispute the court must use its own discretion to determine whether agreement had been reached. Thorpe LJ . .
Lists of cited by and citing cases may be incomplete.
Insolvency, Family
Updated: 31 October 2021; Ref: scu.423813