12 December 2017

October 2017 - Private Law

For a PDF version of this month's update: Click Here


Appeal against the discharge of a reporting restriction order in proceedings for financial provision under Matrimonial Causes Act 1973

R v R & Anor [2017] EWCA Civ 1588


The Husband previously challenged the jurisdiction of the English Court  to make an interim maintenance order whilst he was subject to EU sanctions. That was dismissed and the judgment published in anonymised forms under a reporting restrictions order.

The Husband’s application to extend the reporting restrictions at final hearing was dismissed. The Judge also discharged the restriction.

The Husband was granted permission to appeal the decision to discharge the restriction and was given further permission to appeal the order permitting the reporting of the fact that he had made an application for restrictions and the order which dismissed the husband’s application for an order restraining publication of other information.

The Husband’s primary focus was to prevent the publication of the specified information and pitched his case before the judge below that because of that information Article 2, the right to life, was engaged. Having reviewed the material, McFarlane LJ found that there was no basis for an inference that the judge found a right under article 2 as established.

The Husband’s general case with respect to a balance between Article 8 and 10 was based upon firstly, that the judge was in error in his approach to the balancing exercise and secondly, that the judge’s order is internally inconsistent.

The second is based on s97 Children Act which prohibits the publication of any material which is likely to identify any child as being involved in proceedings under that Act. The basis of that submission is only available if the Children Act proceedings are still live, which in this case where Moor J made final orders in relation to financial issues in July 2016 and where there are no more hearings or applications outstanding, they are not. Therefore, arguments on s97 must fall away.

At the centre of the appellant's case before this court is his assertion that the judge failed to engage with the issues and fell into error both in terms of his analysis of the relevant factors and as a matter of law.

McFarlane LJ remarked that whilst the structure of the judgment allowed the appeal, the court must look at the forensic reality. Firstly, the judge’s determination on restrictions was made after the substantive issues were determined. Second, the judge focussed on Article 2 as that was the basis of the Husband’s case. Thirdly, lack of reasons should be raised with the judge and if not, the court should be slow to construe lack of clarity as indicating error. Fourthly, the court should consider the exchanged between the judge and counsel.

In terms of law in determining the issue of naming the parties, Moor J gave priority to the principle of open justice in a manner in line with the approach endorsed in Norman v Norman [2017] EWCA Civ 49.

The court concluded that the judge’s approach properly balances the issues in favour of publication and has achieved an overall outcome which rightly looks to cause the minimum impairment to open justice. Further, that order is not unclear and strikes the balance.

The Appeal is therefore dismissed.


Appealed against final order in financial remedy proceedings providing time-limited occupation interest in properties.

Alireza v Radwan & Ors [2017] EWCA Civ 1545


The Husband (‘H’) and Wife (‘W’) were married in 1999. In August 2013, W issued her divorce petition.

H’s resources were mostly contained in a family arrangement with his mother and sister. His interest in this arrangement was valued at between £12.42m and £15.7m (£4.3m being realisable assets). H had a further £1.6m in liquid assets outside of the family arrangement and his income was in excess of £350,000.

W’s father was extremely wealthy and W would receive a share in her father’s wealth upon his death.

The parties (and Roberts J) agreed that this was a needs case because all of the wealth had been inherited. The parties also agreed that W had no earning capacity.

Mrs Justice Roberts, the judge at first instance, ordered H to pay W £2m of capitalised maintenance and a time-limited occupation interest in two flats (one as principal residence and one for guests and domestic staff) owned by the family arrangement. The wife’s right to occupy the staff flat would end in three years and the principal residence would end upon W’s remarriage or on the death of her father (whichever be sooner).

W advanced three grounds of appeal: 1) the judge was wrong to take account of the wealth of W’s father; 2) the judge was wrong not to require the husband to access his resources to meet W’s housing needs; and 3) the judge was wrong to provide W with a time limited occupational interest in a property rather than a lump sum to meet her housing needs.

The Court of Appeal held that W’s inheritance should be considered as a resource but it did not justify the order at first instance.

H had realisable assets of £5.98m and the Court of Appeal held that this would comfortably allow for the purchase of a property for W without impacting on H’s mother and sister’s interest in the arrangement.

The order provided W with no personal autonomy. If W wanted to remarry she would lose her home and have no capital to fund a new matrimonial home.

H’s property could not be said to meet the needs of W and the children because the children were having to share a bedroom and it was subject to draconian terms where she would need to ask for permission from the family, with whom she had a strained relationship, to move to a different property.

This order did not reflect W’s contribution as a wife and ongoing to the children.

The Court of Appeal held that it was hard to see how in a situation where the Husband had significant funds available and an earning capacity of £350,000 pa it could be right to conclude that his wife of 14 years with no earning capacity and three children to care for should be denied a capital settlement sufficient to allow her to buy a property in her own name. 

The Court of Appeal allowed the appeal and remitted the matter for reconsideration of the appropriate lump sum to be paid to W in addition to the £2m.


Appeal against a lump sum following a Russian divorce

Zimina v Zimin [2017] EWCA Civ 1429


Husband (‘H’) and Wife (‘W’) were Russian nationals who were married in 1997. They had three children aged 20, 19 and 17. The marriage broke down and H issued divorce proceedings in Russia in 2008. Both parties were legally represented and they reached an agreement which was embodied in a Russian order in 2009. This agreement provided W with $10m (which included a flat in Moscow) out of an asset pot of $13.5m. Although not recorded in the Russian Order, the trustees also agreed that W and the children could continue to reside in the Kensington property, owned through a trust structure, until the children reached majority.

In April 2014, W sold her property in Moscow and later that year applied for permission to make a Part III MFPA 1984 application in the English court.

The judge at first instance, Roberts J, determined that ‘by the narrowest of margins’ it was appropriate to make an order under Part III MFPA 1984 notwithstanding the wife’s delay in issuing the application which the judge found at least partially tactical. Roberts J assessed the wife as having a housing need and therefore made a lump sum order for £1.14m in W’s favour. H appealed.

The Court of Appeal set out the law in this area and found that the central issue of the case was whether it was appropriate for the judge to have made any order at all in the circumstances of this case. Related to this, the Court of Appeal were asked to determine:

What provision should be included in the term “financial benefit” under s.16(2)(d)? The Court of Appeal held that this should cover all forms of financial benefit received by W. This meant the Trustees’ agreement that W and the children could reside in the Kensington property until the children’s majority was included, even though it was not contained in the Russian order.

2.Should the adequacy of the provisions be assessed at the date of the order or the date of this trial? Further, what impact (if any) should H’s improved financial position have upon the outcome of the case? The Court of Appeal held that a consideration of ‘all of the circumstances of the case’ will include an examination of the adequacy of provisions at the date of the order and at the date of trial as well as H’s improved financial position at the date of the trial.

3.What impact should W’s delay have on the outcome of the case? The Court of Appeal found that it can be within the court’s discretion to conclude that it is inappropriate to make an order where there has been a substantial delay notwithstanding an assessment that the applicant has unmet needs.

After deciding the above issues, the Court of Appeal concluded that Roberts J had fallen into error in making the lump sum order for the following reasons:

The provision was made by agreement which was not only Radmacher fair but withstood the Edgar test.

There had been no change in the wife’s circumstances and this application could be regarded as W seeking a second bite of the cherry.

The delay had been in part tactical.

That it was hard, if not impossible, for the wife to advance a case of injustice or hardship absent an order and this should have been an important consideration for the judge.

That the financial benefit provided was adequate in 2009 and remained adequate.