Long delayed ancillary relief application proceeds
The parties had divorced some 22 years before, but no ancillary relief order had been made to satisfy the application outlined in the petition. The parties when together had lived in relative poverty, but H had subsequently become wealthy. W applied for lump sum provision. W appealed against order made under the rules dismissing her claim.
Held: W’s appeal succeeded. The matter was remitted for consideration first for mediation: ‘It may however be helpful to suggest that the major issues requiring limited investigation by way of oral evidence seem at this stage to be the wife’s delay on the one hand and the disparate contributions to the care of the children on the other. These are, to my mind, the two magnetic factors. They pull in opposite directions and the question may ultimately prove to be whether, in the light also of the five difficulties identified in para 30 above, the wife’s delay is so potent a factor as not just to reduce but even to eliminate what might otherwise have been awarded to her by reference to contributions and possibly also to needs.’
As to the costs contribution order, the original order was made before the amendment to the 1973 Act, and under A v A. The costs allowance order should be restored and the Court of Appeal’s repayment order set aside.
Lord Wilson described FPR PD4A para 2.4 as ‘an unhelpful curiosity’: ‘I suggest that Rule 4.4(1) of the family rules has to be construed without reference to real prospects of success. The three sets of facts set out in paragraph 2.1 of Practice Direction 4A exemplify the limited reach of rule 4.4(1)(a), valuable though no doubt it sometimes is. The touchstone is, in the words of paragraph 2.1(c) of the Practice Direction, whether the application is legally recognisable. Applications made after the applicant had remarried or after an identical application had been dismissed or otherwise finally determined would be examples of applications not legally recognisable. Since the greater includes the lesser, it is no doubt possible to describe applications which fall foul of Rule 4.4(1) as having no real prospect of success. Nevertheless paragraph 2.4 of the Practice Direction remains in my view an unhelpful curiosity which cannot override the inevitable omission from the family rules of a power to give summary judgment.’
Lady Hale, Deputy President, Lord Clarke, Lord Wilson, Lord Hughes, Lord Hodge
[2015] UKSC 14, [2015] 1 FLR 972, [2015] 1 WLR 1228, [2015] Fam Law 524, [2015] 1 FCR 566, [2015] 2 All ER 755, [2015] WLR(D) 124, UKSC 2013/0186
Bailii, Bailii Summary, SC, SC Summary, WLRD
Family Proceedings Rules 24.2, Matrimonial Causes Act 1973 22ZA
England and Wales
Citing:
Appeal from – Vince v Wyatt CA 8-May-2013
The parties had divorced some twenty years previously, but apparently without ancillary relief orders, the parties at the time being relatively poor. H was now wealthy and W applied for lump sum provision. H replied that there was no no evidence . .
Cited – A v A (Maintenance Pending Suit: Payment of Legal Fees) FD 2001
The court made an order to provide that the monies paid by way of maintenance pending suit in respect of any matter can be brought into account by the judge making the order in the ancillary relief proceedings. . .
Appeal from – Vince v Wyatt CA 13-Jun-2013
(Subsidiary judgment) The former wife sought financial provision by way of a lump sum payment, but the application was made some twenty years after the divorce. Subsequently, H had become wealthy.
Held: The court set aside the orders of the . .
Cited – Jenkins v Livesey (formerly Jenkins) HL 1985
The parties had negotiated through solicitors a compromise of ancillary relief claims on their divorce. They agreed that the house should be transferred to the wife in consideration of her release of all other financial claims. The wife however . .
Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Cited – Bridgeman v Brown CA 19-Jan-2000
A statement of case is not suitable for striking out if it raises a serious live issue of fact which can only be properly determined by hearing oral evidence. Hale J, said: ‘the essence of a strike out is that one does not look at the evidence on . .
Cited – Currey v Currey CA 18-Oct-2006
Where one party in an ancillary relief claim was not entitled to legal aid, but showed a need for legal representation which he or she could not afford, the court could make an order requiring the other party to make a costs allowance. The nature of . .
Cited – Fairclough Homes Ltd v Summers SC 27-Jun-2012
The respondent had made a personal injury claim, but had then been discovered to have wildly and dishonestly exaggerated the damages claim. The defendant argued that the court should hand down some condign form of punishment, and appealed against . .
Cited – Sears Tooth (A Firm) v Payne Hicks Beach (A Firm) and Others FD 24-Jan-1997
An agreement to deduct legal costs of proceedings from a divorce award was not champertous or unlawful. . .
Cited – Crossley v Crossley CA 19-Dec-2007
The parties had entered into a pre-nuptial agreement. On the ancillary relief proceedings on divorce, the husband sought to have the agreement taken into account by the court. It decided that the wife should give reasons why she considered that the . .
Cited – Pearce v Pearce CA 1980
H and W had separated in 1969 and for nine years the wife cared single-handedly for the three children. Until 1977 the husband was an undischarged bankrupt and had made no financial contribution to the running of the wife’s household, which was . .
Cited – Twinsectra Ltd v Yardley and Others HL 21-Mar-2002
Solicitors acted in a loan, giving an undertaking as to its application. In breach of that undertaking they released it to the borrower. The appellants appealed a finding of liability as contributors to the breach.
Held: ‘Money in a . .
Cited – M v L FD 28-Feb-2003
Ancillary relief application after long term separation – substantial contribution on the part of the wife in caring for the children, a 30-year delay in her bringing her application (following an overseas divorce) and a significant capital award . .
Cited by:
Cited – Dellal v Dellal and Others FD 1-Apr-2015
The families disputed a claim under the 1975 Act. The defendants now sought summary dismissal of the claim. . .
Lists of cited by and citing cases may be incomplete.
Family, Costs
Leading Case
Updated: 01 November 2021; Ref: scu.544224