21 January 2019

December 2018 - Private Law

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An appeal by a wife against a financial remedies order which was limited to “needs” because of the existence of a pre-nuptial agreement

Brack v Brack [2018] EWCA Civ 2862

20 December 2018

  • The case concerned three pre-nuptial agreements made between the wife and the husband prior to the parties’ marriage. The agreements provided that:
  1. each party retain the property that they acquired independently prior to, or during, the marriage
  2. there would be no maintenance following separation
  3. the City Court of Stockholm, Sweden would have jurisdiction to resolve any disputes arising out of separation (prorogation clause)
  • The subject of the appeal was an order of Francis J, who found that, although there were no vitiating factor which would render the agreements ineffective, the terms of the agreements were unfair in that they failed to provide for the needs of either the wife or the children of the marriage. However, the judge limited the award to the wife’s needs, restricting his discretion to apply the s.25(2) Matrimonial Causes act 1973 Act factors.
  • The wife appealed that decision, on the basis that
  1. there was no valid prorogation clause
  2. it was wrong to restrict the award to needs and not to apply the s.25(2) factors after finding that the pre-nuptial agreement was unfair.
  • On appeal, the Court of Appeal found that:
  1. the prorogation clause was not specific enough to meet the requirements of EC Regulations, therefore it was not valid. Lady Justice King emphasised the importance of drafting in her judgment: “As I have said, a choice of jurisdiction clause is simple to draft in clear and unambiguous terms, and the necessary consensus will have been established once committed to an agreement in writing. Failure to express a choice of jurisdiction in unambiguous terms can result, as here, in international jurisdictional disarray leading to delay and lengthy, complex litigation at extortionate cost.” 
  2. that a finding of a valid but unfair pre-nuptial agreement in circumstances where there were no vitiating factors did not necessarily mean that the court was restricted to considering needs only. It was held that the pre-nuptial agreement was simply one of the factors that the court had to take into consideration. However, making an award based on needs only would be within the discretion of the Court, if having balanced all the factors in the round that was the conclusion that the Court came to. 
  • The appeal was allowed on both grounds.


The High Court considered the Court’s ability to vary a financial remedies order made by a judge at the conclusion of those proceedings

US v SR (No. 4) (Executory Mainframe Distribution Order: Change in circumstances: Extent of the Court’s Ability to Revisit Terms) [2018] EWHC 3207 (Fam)

6 December 2018


  • The issue before the Court was the extent to which it was necessary to revisit the means by which value was to be extracted for each of the parties from the matrimonial assets pursuant to an order that the judge made in May 2015.
  • The husband was 67 and the wife was 52. The husband had remarried and had a child. The parties together had three daughters who were adults at the time the judgment was given.
  • The parties spent much of their married life in Russia. The Husband worked in the oil and gas industry. The husband had a substantial income and acquired significant savings and investments. At the time of their separation in 2010, the matrimonial assets amounted to more than £6 million.
  • Both had made allegations of serious litigation misconduct. After a ten-day fact-finding in 2013, Roberts J made findings of non-disclosure against the husband and unauthorised property transactions against the wife. By the time the final distribution hearing took place in 2014, the global assets for division were just in excess of £5 million.  The parties paid costs of about £1.25 million and by the time the final hearing was heard, the case was a needs-based case.
  • At the final hearing in 2014, the wife told the Court that she intended to remain in the UK. Following the order, she returned to Russia. The husband made an application to vary the order, and the judge decided to vary the order in May 2015 (“the original mainframe order”) to reflect the wife’s move.
  • The wife had appealed, but permission to appeal was not granted to her, and she had taken steps to transfer one of the Russia properties into her daughter’s name. Both parties sought a variation of the original mainframe order.
  • The judge found that she had jurisdiction to revisit the original order asked on the principles in Thwaite v Thwaite [1982] Fam 1 and the FPR 2010. The learned judge then analysed the parties’ position at the hearing and previous findings.
  • The starting point was to vary the order as little as possible. The original mainframe order was varied, taking into consideration significant changes in circumstances, such as the value of the properties in light of alter the order where the change of circumstances affected both parties equally, since the original order was expressed in percentages.
  • The order was varied accordingly.


Application by father for permission to appeal in long-running private law proceedings

RR v MM [2018] EWHC 3252 (Fam)

5th December 2018

  • The Applicant (‘RR’) is the father of the child (‘TT’) who is 11 years of age. The Respondent (‘MM’) is the mother.
  • Paragraphs [1] [12] summarise the extensive background to this litigation over a period of 10 years.
  • RR and MM met in 2004, commenced a relationship in 2005, and separated when MM was pregnant with TT in 2007.
  • When TT was born, RR was having contact.
  • In 2010 DJ Fairclough, at a Fact Finding Hearing, found that RR had perpetrated domestic abuse in the relationship with MM.
  • In July 2010 RR appealed the fact-finding outcome. The appeal was dismissed by HHJ Newton, the Designated Family Judge for the Manchester area.
  • By this time MM had developed an entrenched position opposed to RR having contact with TT.
  • Between 2010 and 2017 RR made repeated applications all driving towards establishing contact with TT. Most of his applications were unsuccessful and he appealed further to the Court of Appeal. HHJ Newton had found against RR on numerous occasions.
  • In August 2017, while still awaiting the outcome of a previous appeal to the Supreme Court, RR made a further application. He sent a private and confidential letter to the court requesting that the application was not allocated to HHJ Newton.
  • The gatekeeping judges allocated the case to HHJ Newton who read the letter. She referred the matter to the Family Division Liaison Judge, Hayden J, and it was decided that it was appropriate for her to hear the application.
  • RR applied for HHJ Newton to recuse herself.
  • In February 2018, HHJ Newton heard the application in full. She refused the application to recuse herself, refused RR’s application for contact, and made a section 91(14) order for 3 years.
  • RR applied to the High Court for permission to appeal. The case was dealt with by Moor J.
  • RR appealed on the basis that:
  1. the judge should have recused herself;
  2. there was an appearance of bias;
  3. his right to privacy was not respected;
  4. the judge had predetermined the outcome;
  5. the 91(14) order was disproportionate; and
  6. the application for recusal should have been heard by a different judge.
  • Moor J addresses each of the grounds raised at paragraphs [25][34]. He finds no reasonable prospect of success on any of the grounds, stating at [34], “although it is sad that there is no relationship between this father and TT, the orders that he seeks to appeal cannot be susceptible to any hope of successful challenge”.
  • Application for leave to appeal refused.