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20 February 2025

Maintenance Pending Suit: The Art of Holding the Financial Ring – Lessons from SM v BA [2025] EWFC 28

When ultra-high-net-worth couples divorce, the legal battles aren’t just about the final financial settlement—they’re also about how much one party should receive in the interim. The case of SM v BA [2025] EWFC 28 saw the court awarding the wife £29,750 per month in maintenance pending suit (MPS), despite the husband describing her application as “rapacious” and “full of errors.”

This case provides an important reminder of the legal test for MPS, how the courts balance fairness, needs, and the marital standard of living, and why interim awards should not be viewed as a “mini final hearing.”

What Is Maintenance Pending Suit?

Maintenance pending suit (MPS) is a temporary financial order made under section 22 of the Matrimonial Causes Act 1973. It is designed to provide one party with reasonable maintenance while divorce and financial remedy proceedings are ongoing.

MPS is often sought in cases where one party controls the wealth and the other does not have immediate access to funds. It is particularly important in high-net-worth cases where lifestyle expectations and financial commitments are significant.

The Legal Test for MPS

The law on MPS is well established. The key principles come from TL v ML & Others [2006] 1 FLR 1263, where Mostyn J (then QC) summarised the test:

  1. The sole criterion is “reasonableness”, which is synonymous with fairness.
  2. The marital standard of living is a very important factor, though this does not mean the court will simply replicate it.
  3. A specific MPS budget should be provided, which should exclude capital or long-term expenses best dealt with at the final hearing.
  4. If disclosure is inadequate, the court can make “robust assumptions” about a party’s ability to pay and err in favour of the applicant.
  5. Where a party has historically been supported by third-party wealth, the court may assume that this support will continue, at least until the final hearing.

These principles were later refined in Rattan v Kuwad [2021] 2 FLR 817, where the Court of Appeal confirmed:

  • The focus is on immediate needs—but “immediate” does not mean “emergency-only” provision.
  • The marital standard of living remains relevant but does not have to be fully replicated.
  • The approach to MPS should be flexible, reflecting the circumstances of the case.

SM v BA: A Clash Over £29,750 Per Month

The Background

  • The wife (SM) sought £43,995 per month plus the payment of various household and family costs, totalling nearly £700,000 per year.
  • The husband (BA) argued that £24,438 per month was more appropriate, claiming that the wife’s demands were exaggerated.
  • The court had previously ordered interim maintenance of £29,500 per month, but the wife now sought an increase due to alleged additional costs.

Key Issues Before the Court

  1. What level of maintenance was “reasonable” on an interim basis?
  2. Should the previous agreement of £29,500 per month be upheld or revised?
  3. Was the husband’s financial disclosure adequate?
  4. Did the wife’s claims amount to forensic exaggeration?

The Court’s Decision

  1. Maintenance Set at £29,750 Per Month

The court ordered the husband to pay £29,750 per month, only a small increase from the previous £29,500 per month.

Key factors in this decision:

  • The marital standard of living was “clearly very high,” even if both parties had slightly exaggerated or downplayed its extent.
  • The amount was close to the level already agreed between the parties, reducing the need for major revision.
  • The wife’s budget contained some forensic exaggeration, but the court did not accept the husband’s argument that her claims were excessive across the board.
  1. No Automatic Replication of Marital Lifestyle

The court rejected the idea that MPS should automatically maintain the exact same standard of living. Instead, it emphasised that the award should be fair and reasonable based on the available resources.

This reflects the principle from M v M (Maintenance Pending Suit) [2002] 2 FLR 123, where Charles J stated that the court must not simply replicate the status quo but should instead assess what is reasonable in all the circumstances.

  1. Robust Assumptions About the Husband’s Wealth

The husband argued that he could not afford more than £24,438 per month and disputed the inclusion of certain dividend income in his financial resources.

The court, however, found that:

  • The husband’s disclosure was incomplete, meaning the court was entitled to draw robust assumptions about his wealth.
  • There were “additional monies” available to the husband through family business interests, which he had not fully disclosed.
  • The husband’s past payments of £29,500 per month suggested affordability, despite his argument that it was too high.

This follows the principle from MG v GM (MPS: LSPO) [2023] 1 FLR 253, where Peel J stated that the court can make reasonable inferences when faced with incomplete disclosure.

Key Lessons for Family Law Practitioners

  1. MPS Is About Holding the Financial Ring, Not Deciding the Final Outcome
  • The purpose of MPS is to keep things stable until the final hearing.
  • Clients should be advised not to overreach, as forensic exaggeration may weaken their credibility.
  • Equally, the paying party should be cautious about downplaying their wealth, as courts can draw adverse inferences.
  1. The Marital Standard of Living Matters—But It’s Not Absolute
  • Courts will consider the lifestyle enjoyed during the marriage, but that does not mean a blank cheque.
  • Adjustments may be made based on available resources and the need for fairness.
  1. Full and Frank Disclosure Is Critical
  • If a party fails to provide clear disclosure, courts may err in favour of the applicant.
  • Hiding assets or claiming financial difficulty without clear evidence can backfire.
  1. Previous Agreements Are Persuasive
  • If parties previously agreed on a maintenance figure, it can be difficult to argue for a major change without strong justification.
  • Courts will consider whether circumstances have actually changed since the last agreement.

Final Thoughts: A Case of Careful Balance

The decision in SM v BA [2025] EWFC 28 reinforces that MPS is a temporary solution, designed to balance the needs of both parties without pre-judging the final financial settlement. The award of £29,750 per month shows that courts take a pragmatic, rather than rigid, approach—ensuring that immediate needs are met without necessarily replicating the exact marital lifestyle.

For family lawyers, this case is a reminder to carefully construct interim applications, ensuring that:

  • Budgets are realistic and well-evidenced.
  • The marital standard of living is factored in—but not overstated.
  • Clients are advised against financial posturing, as courts will scrutinise disclosure carefully.
Published by James Thornton in Blog
Tags: case law, maintenance pending suit, mps, sm v ba 2025, tl v ml 2006
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18 February 2025

Four Houses and a Divorce: The Complexities of Property and Contribution in RM v WP [2024] EWFC 191 (B)

When it comes to dividing assets in a divorce, few things cause as much contention as pre-marital property—especially when there’s more than one house involved. In RM v WP [2024] EWFC 191 (B), the court had to decide whether four properties owned by the husband before the marriage should be shared or whether the wife’s claim should be limited to her financial needs.

The case offers valuable insights into how courts approach long marriages, non-matrimonial assets, and the “matrimonialisation” of property—and serves as a warning that just because a house has been a family home doesn’t necessarily mean it will be shared equally.

The Case: A Marriage and Multiple Homes

RM (the wife) and WP (the husband) had a long marriage, spanning 15 years from 2005 to 2020. At the time of their marriage, the husband already owned four properties, which remained in his sole name:

  • Two apartments in London
  • A country cottage
  • A house in a European country

Over the years, the couple lived in different properties at different times, sometimes together, sometimes separately. When the marriage broke down, the wife argued that since these homes had been used as family residences at different times, they had become matrimonial property, meaning they should be divided equally.

The husband, on the other hand, argued that these properties were his pre-marital assets, had remained in his name throughout, and should not be shared beyond what was necessary to meet the wife’s housing needs.

The Court’s Approach: What Happens When There Are Multiple Homes?

Judge Hess had to decide whether these properties had become matrimonial and, if so, whether they should be divided equally. He outlined key principles:

  1. The Importance of a “Family Home”
    • The general rule is that the matrimonial home, even if pre-owned by one party, is usually considered matrimonial property.
    • However, when a couple has multiple homes, the situation becomes more complex.
  2. Sequential vs. Simultaneous Family Homes
    • The wife argued that all four properties should be treated as matrimonial property because they had been used at different times as the family home.
    • The judge rejected this “once a family home, always a family home” argument. Just because a house had been lived in for a period did not automatically make it a matrimonial asset.
  3. The Husband’s Sole Ownership and Lack of “Mixing”
    • The properties had always remained in the husband’s name.
    • The wife had not contributed financially to the properties.
    • Apart from one refurbishment (paid for with the husband’s business funds), there was no evidence of the couple treating the properties as jointly owned.
  4. Needs vs. Sharing Principle
    • The wife’s claim was assessed on her needs, not equal sharing.
    • The court awarded her £657,000—enough to secure reasonable housing but far less than half of the total property portfolio’s value.

Key Features for Family Lawyers and their Clients

  1. Just Because a House Has Been a Family Home Doesn’t Mean It Will Be Shared
  • The court is willing to depart from the equal sharing principle where assets clearly originated from one party.
  • Multiple homes used at different times do not automatically become matrimonial property.
  1. Pre-Marital Assets Can Retain Their Character
  • If a party keeps an asset solely in their name and does not mix finances, courts are more likely to treat it as non-matrimonial.
  • This case reinforces Standish v Standish [2024] EWCA Civ 567, which held that even the family home can be unequally divided if there are strong pre-marital claims.
  1. Needs-Based Outcomes Still Prevail in Long Marriages
  • Even when assets are non-matrimonial, courts will still ensure the financially weaker party can rehouse.
  • The wife here was awarded enough to buy a £650,000 property, but she did not get a share of all four houses.
  1. If You Want to Protect Pre-Marital Property, Keep It Separate
  • Had the husband added the wife to the title, allowed her to financially contribute, or mingled finances, he might have lost his claim to keep the properties.
  • Clients who want to protect pre-marital wealth should consider pre-nuptial agreements or clear financial separation.

Final Thoughts: Four Homes, One Divorce, and a Lesson in Asset Protection

RM v WP highlights that just because multiple houses were lived in at different times, it does not mean they will all be divided equally. Pre-marital assets remain pre-marital unless there is strong evidence of mixing—and the courts will not hesitate to depart from a 50/50 split where fairness demands it.

For practitioners, the case serves as a useful precedent when advising clients who own multiple properties before marriage. For divorcing parties, the lesson is simple: if you want to claim a share of an asset, you need to show you treated it as joint property, not just that you lived in it.

Published by James Thornton in Blog
Tags: 4 houses, case law, matrimonialisation, rm v wp 2024, standish
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11 February 2025

Married or Not? Lessons from Z v Z [2025] EWHC 276 (Fam) on Proving a Valid Marriage

What happens when one party claims they are married and the other flatly denies it? The recent case of Z v Z [2025] EWHC 276 (Fam) serves as a striking example of how the courts approach disputes over whether a legally valid marriage exists. With financial remedies at stake, the case underscores the importance of marriage registration, evidential burdens, and the challenges of proving—or disproving—a civil marriage.

The Case: A Marriage in Dispute

Ms. Z claimed that she and Mr. Z had a civil marriage on 14 December 2009 at X Registry Office. She produced a marriage certificate, bearing what appeared to be Mr. Z’s signature, and argued that this document should be conclusive proof of their legal union.

Mr. Z, however, denied that he had ever attended the ceremony, insisting that Ms. Z had tricked the registrar by using an imposter who fraudulently signed his name. He maintained that their only valid marriage was their Islamic Nikah in 1999, which was not recognised under English law.

Why did this dispute matter? Because without a legally recognised civil marriage, Ms. Z could not pursue a financial claim against Mr. Z.

What the Law Says: Proving a Valid Marriage

In England and Wales, a legally valid marriage requires:

  1. Compliance with the formal requirements of the Marriage Act 1949, including proper notice and registration.
  2. A properly conducted ceremony in an approved location, witnessed by two people.
  3. Signatures on the marriage certificate, confirming the marriage took place.

The best evidence of a valid marriage is the official marriage certificate, as emphasised in L-K v K (No. 3) [2006] EWHC 3281 (Fam). This case confirmed that a marriage certificate is strong evidence but not conclusive—if fraud or error is alleged, the court must weigh all the evidence.

In Islam v Islam [2003] EWHC 1298 (Fam), the court found that a marriage certificate alone was not enough when compelling evidence suggested a fraudulent registration.

The Court’s Decision: Did the Marriage Happen?

After hearing extensive evidence, Mr Justice Trowell ruled in favour of Ms. Z, finding that the civil marriage did take place. The court based its decision on:

  • The Marriage Certificate: The judge found no expert evidence to support Mr. Z’s claim that the signature was forged.
  • Registrar’s Safeguards: The judge noted that registrars verify identity using photo ID before marriage ceremonies, making it highly unlikely that an imposter could have fooled officials.
  • Lack of Strong Counter-Evidence: While Mr. Z argued that there were no wedding photos, receipts, or family witnesses, the judge accepted Ms. Z’s explanation that civil marriages were not culturally significant and may not have been celebrated.
  • Mr. Z’s Credibility Issues: The judge highlighted inconsistencies in Mr. Z’s evidence, including a false Islamic divorce document he had created in 2013, and a conviction for perverting the course of justice in 1994.

However, the judge acknowledged "odd features" in Ms. Z’s evidence, including her inability to locate the ceremony’s witnesses and her failure to mention the civil marriage in earlier family proceedings.

Key Takeaways: Proving (or Disproving) a Marriage

  1. A Marriage Certificate Is Strong Evidence, But Not Infallible
    • Courts presume a marriage is valid if a certificate exists, but it can be challenged with compelling evidence.
  2. Fraud Allegations Carry a High Burden of Proof
    • The party alleging fraud (here, Mr. Z) must provide strong evidence—mere suspicion is not enough.
    • Expert handwriting analysis could have helped, but Mr. Z failed to obtain one.
  3. Cultural Norms Matter
    • The court recognised that civil marriages are sometimes viewed as administrative formalities rather than major events, explaining the lack of wedding celebrations or family involvement.
  4. Judicial Scepticism Toward Late Claims
    • The judge noted that Ms. Z only pursued the divorce after years of litigation, raising some doubts.
    • However, he accepted that her focus had been on child arrangements and protection from domestic abuse.
  5. Delays Can Impact Available Evidence
    • Key records, such as Mr. Z’s employment records, had been destroyed, making it harder for him to disprove attendance at the ceremony.

Final Thoughts: A Cautionary Tale

For family lawyers, Z v Z is a reminder that marriage disputes are not always clear-cut. While a marriage certificate is powerful evidence, it is not absolute—but challenging it requires real proof, not just denial.

For couples, the case highlights the importance of proper legal formalities and the risks of informal marriages that lack legal recognition. If you’re entering a religious marriage, consider ensuring it is legally registered, or you could face serious consequences in the event of a breakup.

Published by James Thornton in Blog
Tags: case law, valid marriage, void, z v z
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7 February 2025

When One Party Won’t Cooperate: Lessons from WZ v HZ [2024] EWFC 407 (B)

Few things are as frustrating in family law as a party who simply refuses to comply with court orders—particularly when it involves selling the former matrimonial home (FMH). The case of WZ v HZ [2024] EWFC 407 (B) is a prime example of the legal mechanisms available when one spouse obstructs a court-ordered sale.

This case is also notable for the court’s use of the Thwaite jurisdiction, which allows variations to existing financial remedy orders when circumstances change or a party frustrates their implementation. Below, we explore the key lessons from this case and practical takeaways for family law practitioners.

The Facts: A Sale Stalled by One Party

WZ (the wife) and HZ (the husband) had been locked in financial remedy litigation for years. A final order had been made in 2021, which required the sale of the former matrimonial home to provide the wife with funds to meet her housing needs. The order anticipated that the FMH would be on the market within three months and sold within six months.

However, three years later, the house remained unsold, and the wife continued living there rent-free while the husband paid the mortgage and maintenance. The husband accused the wife of deliberately frustrating the sale by refusing access to estate agents, rejecting reasonable offers, and even removing the ‘For Sale’ sign.

Faced with ongoing delays, mounting legal costs, and financial pressure, the husband returned to court seeking:

  1. An order for possession of the FMH, allowing him to take control of the sale.
  2. A Thwaite variation, arguing that the delay had resulted in a financial windfall for the wife, and the court should adjust the division of proceeds.

The Court’s Approach

  1. Ordering Possession: A Rare but Necessary Step

The court acknowledged that it had tried everything to enforce the sale. Previous orders had given the husband sole conduct of the sale, but the wife’s obstruction had rendered this ineffective.

Citing Derhalli v Derhalli [2021] EWCA Civ 112, the judge confirmed that the court has the power to grant possession under FPR 9.24, which allows the court to enforce orders under Section 24A of the Matrimonial Causes Act 1973. This power enables the court to remove an obstructive party from the home to ensure compliance with a sale order.

🔹 Lesson for practitioners: If a party repeatedly frustrates a sale, a possession order may be the only viable enforcement tool. This case shows that the courts are willing to take robust action when necessary.

  1. Thwaite Jurisdiction: Adjusting Orders to Reflect Reality

The Thwaite jurisdiction, derived from Thwaite v Thwaite [1981] 2 FLR 280, allows courts to vary the terms of an executory order (one that has not yet been implemented) to achieve fairness.

In this case, the court found that:

  • The wife had benefited unfairly from delaying the sale, as property prices had risen significantly.
  • The original order assumed a sale in 2021, meaning the husband was now paying much more than intended.
  • The original division of proceeds was no longer fair, given the wife’s obstruction.

The court ruled that the increase in the sale price should not benefit the wife entirely. Instead, a portion of the additional equity would go toward covering the husband’s legal fees and outstanding maintenance obligations.

🔹 Lesson for practitioners: The Thwaite jurisdiction is a powerful tool in financial remedy cases where one party frustrates implementation. It ensures that delays do not unfairly enrich the obstructive party.

Key Takeaways for Family Lawyers

  1. Enforcing Sales: Courts Will Step In
  • If a party refuses to cooperate, courts can grant possession orders to remove them from the property.
  • Even where a party is living in the FMH, they cannot indefinitely obstruct a sale.
  1. Thwaite Variations: A Safety Net for Changing Circumstances
  • Orders that remain executory can be adjusted if circumstances change.
  • Deliberate obstruction can result in a financial penalty, ensuring the obstructive party does not benefit from their own misconduct.
  1. Acting Early to Avoid Costly Litigation
  • This case took three years to return to court, during which time both parties incurred significant legal costs.
  • Had the husband applied earlier for enforcement measures, he may have avoided much of the financial and emotional toll.

Final Thoughts: The Cost of Non-Compliance

WZ v HZ [2024] highlights the perils of failing to comply with financial remedy orders. For parties tempted to frustrate court-ordered sales, the judgment sends a clear warning: the court has the power to act, and it will.

For practitioners, this case reinforces the importance of early intervention. If one party is blocking a sale, don’t wait—seek enforcement, possession orders, or Thwaite adjustments before delays spiral into costly litigation.

Published by James Thornton in Blog
Tags: case law, enforcement, fmh, sale of property, thwaite, thwaite jurisdiction
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30 January 2025

Chaos in the Courtroom: Lessons from T v T & Ors [2025] EWFC 14 (B)

In the world of family law, procedural rules are more than administrative hurdles—they are the backbone of a fair and efficient judicial process. In the recent case of T v T & Ors [2025] EWFC 14 (B), the disregard for these rules reached such a level that the final hearing had to be adjourned entirely. This judgment provides a stark reminder of the perils for parties and their legal representatives when procedural rules are ignored.

The Case That Couldn’t Proceed

The case concerned financial remedy proceedings following the breakdown of a marriage. Initially involving the husband and wife as the main parties, three additional respondents (the husband’s mother, sister, and the executor of his late father’s estate) were later joined due to the wife’s claims over family-owned properties. The case had already spanned nearly two years and included seven directions hearings.

However, when the matter came before the court for a three-day final hearing, it was quickly apparent that the case was not ready to proceed due to a series of procedural failings:

  1. Excessive Bundles: The applicant’s legal team submitted over 2,700 pages of documents, despite clear rules limiting bundles to 350 pages unless permission is granted.
  2. Missing Essential Documents: The bundles lacked a case summary, chronology, and statement of issues, making it impossible for the judge to prepare adequately.
  3. Late Filing: Key documents, including counsel’s position statement, were submitted the night before or on the morning of the hearing, giving the litigants in person no time to respond.
  4. No Open Proposals: The wife’s legal team failed to provide open proposals, a critical requirement in financial remedy cases.
  5. Legal Case Unclear: The wife’s claims over family properties lacked clarity, leaving the court uncertain about the legal basis of her arguments.

Key Lessons for Practitioners

This case offers valuable insights for family lawyers:

  1. Bundles Must Follow the Rules
    • FPR PD 27A limits bundles to 350 pages without prior permission. Here, the applicant’s 2,747-page bundle was a clear breach of this rule. Lawyers must ensure bundles are concise, relevant, and submitted on time.
    • The court cannot and will not sift through excessive paperwork to salvage a poorly prepared case.
  2. Timely Filing Is Critical
  3. Clarify Legal Arguments
    • The wife’s legal arguments, based on constructive trust and proprietary estoppel, were poorly articulated. The court emphasised the need for clear and concise statements of case, as required by the Statement on the Efficient Conduct of Financial Remedy Hearings.
    • Practitioners must clearly identify the legal framework supporting their client’s claims and provide sufficient evidence to back them up.
  4. Don’t Assume the Court Will Fix It
    • Judges may work to untangle poorly prepared cases, but as this judgment shows, there are limits. Recorder Chandler KC noted that this case was so chaotic that proceeding would have been unfair. Lawyers must respect the court’s time and resources by preparing cases to a high standard.
  5. The Risk of Costs Sanctions
    • Although no costs order was made due to the parties’ circumstances, the judge indicated that, in other cases, such breaches could result in indemnity costs orders against the offending party or their representatives.

The Bigger Picture: Procedural Discipline in Family Law

This case is not just about one chaotic hearing—it reflects a broader issue in family law practice. As Sir James Munby P observed in Re W (A Child) [2013] EWCA Civ 1177, a “slapdash, lackadaisical” approach to court orders and procedures cannot be tolerated. Similarly, Mostyn J in Xanthopoulos v Rakshina [2022] EWFC 30 decried the “utter disregard” for procedural rules that too often characterises family law cases.

The consequences are significant:

  • For parties, procedural failures delay justice, increase costs, and add emotional strain.
  • For courts, such failings waste valuable judicial time and resources, compounding delays across an already overstretched system.

Final Thoughts: A Warning for the Future

The decision in T v T & Ors is a wake-up call for family law practitioners. Procedural rules are not optional, and failing to follow them can have dire consequences, including adjourned hearings, wasted costs, and damage to professional reputations.

For lawyers, the lesson is clear: attention to detail, compliance with rules, and respect for the court’s time are non-negotiable. For clients, it’s a reminder to choose legal representatives who will handle their case with the care and professionalism it deserves.

Published by James Thornton in Blog
Tags: adjournment, bundles, case law, fpr, fpr pd27a, procedural discipline
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28 January 2025

Parental Responsibility: Mistakes and Missteps and the Impact of KL v BA [2025]

The recent High Court case of KL v BA [2025] EWHC 102 (Fam) examines the acquisition of parental responsibility under the Children Act 1989 and the consequences of errors in birth registration. This judgment, which determined that a father mistakenly named on a birth certificate did not acquire parental responsibility, highlights the complexities of family law and the practical challenges of navigating parental rights.

The Facts of the Case

This case concerned a child, MA, born in 2020 to her mother, BA. Shortly after her birth, BA registered MA’s birth with KL, naming him as the child’s father. However, after the breakdown of their relationship, BA revealed in 2022 that KL was not MA’s biological father. Subsequent DNA testing confirmed this.

Despite this revelation, KL wished to continue his parental role in MA’s life. He applied for a parental responsibility order to secure his rights in the event that BA sought to remove them. Meanwhile, BA sought a declaration of non-parentage, arguing that KL’s parental responsibility should be void from the outset.

The key issue before the court was whether KL had acquired parental responsibility by being named on the birth certificate, and if so, whether that responsibility could be voided once his non-paternity was established.

What Is Parental Responsibility?

Under Section 3 of the Children Act 1989, parental responsibility is defined as the rights, duties, powers, and responsibilities that a parent has concerning a child. It includes decisions about education, medical treatment, and religious upbringing.

For fathers not married to the child’s mother, Section 4 of the Act outlines three routes to acquiring parental responsibility:

  1. Being named on the birth certificate (after December 1, 2003).
  2. Entering into a parental responsibility agreement with the mother.
  3. Obtaining a court order granting parental responsibility.

The Judgment: No Parental Responsibility Acquired

The High Court ruled that KL did not acquire parental responsibility because he was not MA’s biological father. The court emphasised that the biological link is the foundation for acquiring parental responsibility under Section 4(1)(a). A man mistakenly named on a birth certificate does not meet this criterion and cannot gain parental responsibility through registration alone.

This conclusion overturned KL’s claim and clarified that his putative parental responsibility was void ab initio (from the outset) once non-paternity was proven.

Practical Guidance: How to Acquire Parental Responsibility

For fathers seeking to acquire parental responsibility in England, the following options are available:

  1. Be Named on the Birth Certificate
    Fathers who attend the birth registration with the mother and are named on the birth certificate automatically gain parental responsibility, provided they are the biological father.
  2. Parental Responsibility Agreement
    Fathers can enter into a written agreement with the mother, signed and witnessed, to formalise their parental responsibility. This is useful when the father’s name is not on the birth certificate but both parents agree on his involvement.
  3. Court Order
    If agreement cannot be reached, a father can apply to the court for a parental responsibility order. Courts assess the father’s commitment, relationship with the child, and reasons for applying.

Lessons from KL v BA for Family Law Practitioners

  1. The Importance of Biological Links
    This case reinforces that biological paternity is central to parental responsibility acquired through birth registration. Practitioners must verify paternity if disputes arise to avoid reliance on incorrect registrations.
  2. Legal Challenges of Void Responsibility
    The court’s decision that KL’s parental responsibility was void ab initio prevents uncertainty about prior decisions made in good faith by someone acting without true legal authority. Lawyers should advise clients on the limitations of non-biological parental rights.
  3. The Role of Welfare Analysis
    Although KL’s case did not require a welfare analysis due to the voiding of his parental responsibility, courts must undertake such assessments when removing parental responsibility from biological fathers. Welfare remains the paramount consideration under the Children Act.
  4. Errors in Birth Registration
    Mistakes or misrepresentations during birth registration can lead to significant legal consequences. Practitioners should ensure clients understand the implications of being named on a birth certificate.

Reflections: Balancing Biology and Bond

The case of KL v BA underscores the careful balance courts must strike between the biological foundations of parental responsibility and the emotional bonds between children and non-biological parents. While KL’s dedication to MA was evident, the law prioritised the clarity and intent of the statutory framework.

For parents, the lesson is clear: birth registration is not merely a formality. For lawyers, this case serves as a reminder to approach disputes involving parental responsibility with meticulous attention to legal principles and family dynamics.

Published by James Thornton in Blog
Tags: birth certificate, case law, parental responsibility
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27 January 2025

Unmasking the MacQueens: When Transparency Is More Than Just a Legal Duty

The recent case of MacQueen v MacQueen [2024] EWFC 400 (B) stands out in family law not just for the egregious dishonesty displayed by the husband but also for the court’s decision to publish the judgment without anonymisation. This highly unusual step sends a clear message about the importance of full and frank disclosure in financial remedy proceedings and the consequences of defying court orders.

Here, we explore the key points from this case and its lessons for practitioners, particularly on the question of anonymising judgments.

The Facts: A Masterclass in Brazen Non-Disclosure

The case involved financial remedy proceedings following the divorce of Mr. and Mrs. MacQueen. The court was tasked with determining the financial arrangements on divorce. What should have been a straightforward process was derailed by the husband’s persistent dishonesty:

  • He failed to provide accurate financial disclosure, omitting substantial income streams from various business ventures (including luxury bulldog sales and roofing contracts).
  • He flagrantly ignored court orders to produce documents, including his Form E, P60s, and WhatsApp messages.
  • When questioned, his explanations shifted constantly, leaving the court to draw adverse inferences about his finances.

The Judgment: Transparency vs. Anonymity

In a rare move, District Judge Ashby determined that the judgment should be published without anonymising the husband’s identity. While the children’s anonymity was preserved, the husband’s behaviour warranted public scrutiny.

The court’s reasoning was clear:

  • Flagrant Non-Compliance: The husband’s “brazen dishonesty” undermined the court process and warranted accountability.
  • Public Interest: Highlighting such behaviour serves as a deterrent to others who might contemplate similar tactics in financial remedy proceedings.

The court relied on the principle established in R v C (Publication of Judgment) [2015] EWCA Civ 500, which allows judgments to be published when public interest outweighs privacy concerns.

Practical Lessons for Family Lawyers

  1. The Duty of Full and Frank Disclosure Is Paramount
    • The court described disclosure as the “bedrock” of financial remedy proceedings. Practitioners must emphasise this obligation to clients early and often.
  2. Prepare Clients for Consequences of Non-Compliance
    • This case demonstrates that dishonesty and evasion can lead not just to adverse inferences but also to significant reputational damage through public judgments.
  3. Evidence Is Key
    • The wife’s evidence—including bank statements, payments, and even social media—was crucial in exposing the husband’s true financial position. Lawyers should ensure clients gather and preserve all relevant documentation.
  4. Anonymity Is Not Guaranteed
    • Clients often assume financial remedy cases will remain private. However, as this case shows, poor conduct can lead to public exposure. This is an important discussion to have with clients, especially when dishonesty may be an issue.
  5. Costs Orders Are a Risk
    • The court ordered the husband to pay the wife’s costs on an indemnity basis, a rare but justified decision given his behaviour. For practitioners, this is a reminder to encourage settlement where possible to avoid unnecessary escalation.

Final Thoughts: Transparency as a Deterrent

MacQueen v MacQueen is a stark reminder that the courts take a dim view of dishonesty and non-compliance. It also demonstrates the increasing willingness of judges to use publication as a tool to hold parties accountable.

For practitioners, the message is clear: ensure your clients understand their obligations, prepare thoroughly, and be ready to address dishonesty head-on. For clients, the lesson is even simpler: tell the truth, comply with court orders, and avoid turning your divorce into a public spectacle.

Published by James Thornton in Blog
Tags: anonymisation, case law, macqueen, publication

24 January 2025

Valuing Love: Lessons from AF v GF [2024] on Non-Matrimonial Assets and Pensions

The case of AF v GF [2024] EWHC 3478 (Fam) offers family law practitioners a masterclass in tackling complex financial remedy disputes involving high-value business assets, pensions, and the nuanced distinction between matrimonial and non-matrimonial property. Beyond the substantial legal fees and extensive litigation, this case highlights key principles and practical tips for practitioners navigating similar scenarios.

The Story Behind the Numbers

This case concerned a long marriage between AF (the wife) and GF (the husband), marked by significant financial complexities. At the heart of the dispute were:

  • The valuation and classification of GF's business interests in the investment management sector.
  • Arguments over the extent to which non-matrimonial assets had been "matrimonialised" through the wife’s involvement in growing the business.
  • The drastic decline in asset values during the litigation, leading to competing expert valuations.

The total asset pool, initially estimated at £10–13 million, was later revised to a mere £2.779 million, a drop that complicated the fairness assessment.

Key Issues and Legal Principles

  1. Matrimonial vs. Non-Matrimonial Assets
    The court grappled with whether GF's pre-marital business interests (founded in 2007) had been transformed into matrimonial property through AF’s contributions as Managing Director.

    • The court relied on Standish v Standish [2024] EWCA Civ 567, which emphasised that matrimonialisation should be applied narrowly and fairness should guide whether non-marital assets are brought into the sharing principle.
    • The judgment reinforced that not all contributions transform non-marital property into matrimonial property; the distinction depends on usage, mixing, and intent.
  2. Fragility of Business Valuations
    The collapse in the value of GF’s business interests highlighted the volatility of private company valuations. Echoing Versteegh v Versteegh [2018], the judgment noted that such valuations are inherently fragile due to market conditions, lack of liquidity, and reliance on hypothetical projections.
  3. Addbacks and Conduct
    Both parties sought to add back amounts they alleged the other had wasted.

    • The court declined to add back GF’s substantial loss from the purchase of a yacht, as it was deemed a business decision rather than wanton dissipation.
    • Similarly, AF’s maintenance expenditure was not penalised despite GF’s claims of unnecessary spending.

Practical Tips for Practitioners

  1. Be Proactive About Valuations
    • Always scrutinise business valuations early in the proceedings and ensure clients understand their inherent volatility.
    • Encourage clients to provide clear and complete financial disclosure to minimise disputes.
  2. Understand the Limits of Matrimonialisation
    • Advise clients that contributions to a business may not necessarily convert non-marital assets into marital property.
    • Where clients seek to argue matrimonialisation, gather evidence showing active involvement and the integration of assets into the marital framework.
  3. Manage Client Expectations
    • Cases involving non-marital assets often lead to unpredictable outcomes. Set realistic expectations early, especially when valuations fluctuate.
    • Highlight the cost-benefit analysis of litigation; in this case, legal fees of £1.6 million significantly eroded the available asset pool.
  4. Addbacks Require High Thresholds
    • Emphasise that claims for addbacks (or reattributions) require proof of wanton dissipation of assets. Frivolous spending or unwise investments typically do not meet this standard.
  5. Clean Breaks vs. Wells Orders
    • This case underscores the practical challenges of devising clean break settlements where assets include volatile business interests. Wells orders, which defer payments until realisations occur, may provide a pragmatic alternative.

Reflections: Navigating the Storm

AF v GF serves as a cautionary tale about the emotional and financial toll of protracted litigation. For practitioners, the key takeaways are the importance of robust evidence, early resolution efforts, and managing the inherent unpredictability of asset valuations.

Ultimately, this case reaffirms the court’s commitment to fairness, even in the most complex financial landscapes. It also highlights that when love turns to litigation, the best outcomes often stem from thorough preparation and a pragmatic approach.

Published by James Thornton in Blog
Tags: business, business assets, case law, matrimonialisation, non matrimonial assets, standish, versteegh, wells
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23 January 2025

Should Have Put a Ring on It: RI v NG [2025] and the Rare Revival of the Married Women’s Property Act 1882

Beyoncé’s advice to “put a ring on it” resonates in the world of relationships, but in the case of RI v NG [2025] EWFC 9 (B), the ring itself became the centre of a legal firestorm. This glittering dispute over a diamond engagement ring and other jewellery not only captivated the courtroom but also revived the little-known Married Women’s Property Act 1882 (MWPA). Here’s a closer look at what happened when love didn’t last, and the jewellery became the real prize.

When Love Turns to Litigation

It all started as a whirlwind romance between Mr. RI, a 59-year-old businessman, and Ms. NG, a 42-year-old recovering from alcohol dependency. Flowers, dinners, and gifts turned into a diamond engagement ring, a planned wedding, and a hefty jewellery collection worth nearly £68,000.

But just two weeks before the big day, NG called off the wedding. That’s when RI discovered that the jewellery—intended as wedding gifts—had allegedly been removed from his possession. Determined to reclaim the items (or their value), RI turned to the MWPA 1882 for help.

The Married Women’s Property Act 1882: A Victorian Throwback

Though the MWPA 1882 might feel like it belongs in a dusty legal history book, it’s still a powerful tool in resolving disputes over property between married or engaged couples. Section 17 of the Act allows courts to decide who owns property when a relationship breaks down.

In this case, another legal nugget came into play: Section 3(2) of the Law Reform (Miscellaneous Provisions) Act 1970, which presumes that an engagement ring is an absolute gift unless the giver proves it was given on the condition (express or implied) that it be returned if the marriage doesn’t happen.

Spoiler alert: that condition was key to RI’s case.

The Judgment: A Legal Ring of Fire

District Judge Ashworth’s judgment was as detailed as a Beyoncé music video storyline. Here’s the breakdown:

  1. Was There Even an Engagement?
    NG denied ever agreeing to marry RI, claiming he planned the wedding unilaterally. But the evidence, including Instagram posts of her wearing the ring, an email to a broker calling RI her fiancé, and their visit to a registry office, told a different story. The court found the engagement was real, even if the romance fizzled.
  2. The Ring Wasn’t Forever
    While engagement rings are presumed to be gifts, RI rebutted the presumption by showing it was given on the condition it would be returned if the wedding didn’t happen. Since NG called off the engagement, she was required to give it back.
  3. The Jewellery Didn’t Belong to NG
    The court ruled that the other jewellery, intended as wedding gifts, had not been gifted to NG yet. Her claims that she had no knowledge of the items—or that they didn’t exist—were dismissed as implausible.
  4. RI Was the More Credible Witness
    Despite allegations of coercion and control, the judge found RI to be a more reliable witness than NG, whose version of events shifted under scrutiny.

Lessons in Love, Loss, and Litigation

This case offers a few sparkling insights for anyone dealing with relationship property disputes:

  • Engagement Rings Aren’t Always Gifts
    While the default assumption is that engagement rings are gifts, this presumption can be overturned if it’s shown they were conditional on marriage taking place. If you’re giving or accepting a ring, it’s worth considering the strings that might be attached.
  • Evidence is Everything
    In disputes like this, detailed records are vital. RI’s ability to produce invoices, emails, and even social media posts helped him shine in court.
  • The MWPA 1882 Still Has Power
    Don’t underestimate this old-school statute. It remains a critical tool for resolving ownership disputes between couples, whether married, separated, or (as in this case) formerly engaged.
  • Credibility Matters
    Consistency and plausibility go a long way in court. RI’s straightforward evidence and NG’s shaky narrative tipped the scales in his favour.

Final Thoughts: If You Like It, Don’t Just Put a Ring on It

RI v NG reminds us that engagements aren’t just emotional—they can have significant legal implications. The case is a lesson in how courts handle property disputes when the romance fades, and it shows that sometimes, the most valuable thing to protect in a relationship isn’t the jewellery but the evidence.

So, if you like it and you’re going to put a ring on it, make sure everyone’s on the same page about what that ring means—or risk a courtroom encore you didn’t see coming.

Published by James Thornton in Blog
Tags: Beyonce, case law, jewellery, MWPA 1882, RI v NG, ring
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23 January 2025

Contempt and Committal: Lessons from Barclay v Barclay [2024]

The recent case of Barclay v Barclay [2024] EWFC 395 (B) provides a compelling exploration of the principles governing contempt of court in family proceedings and serves as a stark reminder of the consequences of defying court orders. In this blog, we delve into the key issues surrounding the committal application brought against Mr. John Barclay, the underlying legal principles, and the broader implications for family law practice.

The Facts of the Case

This case arose from long-standing financial remedy proceedings following the breakdown of the marriage between Pauline and John Barclay. The committal application, made by Mrs. Barclay, centred on Mr. Barclay's breaches of a consent order dated December 2017 and subsequent undertakings. The breaches included failing to meet maintenance obligations and pay mortgage and council tax liabilities.

Although Mr. Barclay did not dispute his breaches, his defence relied on procedural grounds, namely the lack of personal service of the original order and the procedural safeguards mandated under Part 37 of the Family Procedure Rules 2010.

The Court's Analysis: Substance Over Procedure

District Judge Dodsworth addressed the tension between procedural compliance and substantive justice. While emphasising the quasi-criminal nature of contempt proceedings, the court found that the lack of personal service was not fatal to the application. Mr. Barclay had clear knowledge of the orders, having been represented during their making and reminded of their terms in subsequent hearings.

This approach reflects established case law, including Benson v Richards [2002] EWCA Civ 1410, which highlights that procedural irregularities do not invalidate committal proceedings where the respondent has clear knowledge of the orders and their consequences.

Sentencing: A Question of Compliance and Deterrence

In determining the appropriate penalty, the court balanced the objectives of sentencing in contempt cases:

  1. Ensuring compliance with court orders.
  2. Upholding the authority of the court.
  3. Punishing non-compliance.

Mr. Barclay’s sustained failure to comply, coupled with the significant arrears exceeding £70,000, crossed the custodial threshold. Despite mitigating factors—including his role as a carer—the court imposed a 42-day custodial sentence, underscoring the gravity of his non-compliance.

Key Points to Note for Practitioners and Litigants

  1. Personal Service is Important but Not Absolute
    While Part 37 mandates personal service in contempt applications, courts may prioritise substantive justice over technical breaches where the respondent’s awareness is clear.
  2. Courts Take Non-Compliance Seriously
    This case reiterates the courts’ readiness to impose custodial sentences in cases of persistent and deliberate non-compliance, particularly where substantial financial obligations are involved.
  3. Representation is Critical
    Mr. Barclay’s initial lack of representation highlights the importance of early legal advice in navigating complex financial and procedural issues in family law.
  4. A Message to Non-Compliant Parties
    The judgment serves as a cautionary tale for those tempted to flout court orders. The courts will not hesitate to use their powers to enforce compliance and uphold the integrity of the legal process.

Broader Reflections

The Barclay case also raises questions about access to justice and the challenges faced by unrepresented litigants in family law. With the quasi-criminal consequences of contempt proceedings, ensuring procedural fairness while balancing the need for enforcement remains a delicate task for the courts.

As family law practitioners, we must guide clients toward compliance, underscore the importance of adhering to court orders, and navigate the procedural nuances that can make or break a case. For litigants, the lesson is clear: defiance of court orders comes with significant risks, including the loss of liberty.

Published by James Thornton in Blog
Tags: barclay v barclay, case law, committal, contempt
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