Blog Archives - Page 2 of 17 - James Thornton Family Law

22 August 2025

From Second Chances to Final Orders: TYB v CAR and the Perils of Non-Disclosure

In family finance cases, the golden rule is simple: disclose everything. The courts cannot divide what they cannot see. Yet the recent sequel judgment in TYB v CAR (Non-Disclosure) (No 2) [2025] EWFC 263 shows what happens when one party repeatedly refuses to play by the rules.

The Backstory – TYB v CAR [2023] EWFC 261 (B)

Back in 2023, Deputy District Judge Hodson faced a difficult choice. The husband had failed to provide proper financial disclosure, despite repeated opportunities. Instead of ploughing on to a final hearing with incomplete information, the judge reluctantly granted him one last chance. The message was clear: comply now, or face serious consequences.

Fast Forward to 2025 – Non-Disclosure Continues

Unfortunately, little changed. By the time the case returned in 2025, the husband had still not provided a full picture of his finances. The court had no reliable disclosure, no credible explanation, and no sign of engagement with the process.

This time, patience had run out. The judge concluded that the only way forward was to make findings based on the available evidence, drawing adverse inferences where necessary.

The Outcome

The judgment demonstrates the firm but fair tools available to the court in dealing with non-disclosers:

Maintenance: The husband was ordered to pay £5,500 per month in maintenance to the wife. This figure reflected his historic earnings and lifestyle, rather than his (unsubstantiated) claims of financial difficulty.
Arrears & Indemnities: He was required to clear arrears and indemnify the wife against debts he had wrongly left in her name.
Costs: A costs order of nearly £39,000 was made against him, reflecting the unnecessary litigation caused by his failure to cooperate.
Capital Claims Adjourned: The wife’s capital claims were adjourned for up to ten years, leaving the door open in case hidden assets surface.

Why This Matters for Practitioners

The two judgments taken together chart the journey from judicial forbearance to judicial firmness:

Initial tolerance: Courts are reluctant to make final orders without disclosure, giving parties every chance to comply.
Finality: Eventually, though, the need for closure outweighs the hope of voluntary compliance. The court will use its powers to infer, to adjust, and to penalise.
Adverse inferences are powerful: When disclosure is withheld, judges can and will draw conclusions from lifestyle, spending, and the absence of evidence.
Strategic risk: Non-disclosure doesn’t just fail — it often backfires, leading to worse outcomes than honest disclosure might have produced.

Final Thought

TYB v CAR is a cautionary tale in two parts. In 2023, the husband was given a reprieve; in 2025, the court called time. The lesson is as old as family finance itself: disclosure is not optional. Inch by inch, excuse by excuse, a non-discloser may delay the process — but eventually, the court will reach the finishing line, and it rarely ends well for the obstructive party.

Published by James Thornton in Blog

Tags: case law, disclosure, financial disclosure, non disclosure, tyb v car

21 August 2025

Inch by Inch: When Dispositions Cross the Line in Divorce Claims

The recent decision in IN v CH [2025] EWFC 265 offers a textbook example of how the family courts tackle attempts to sidestep financial claims in divorce through asset dispositions. The case concerned the husband’s efforts to move assets out of reach of the wife’s claim—transactions the court found to be intended to defeat her entitlement.

The Facts
Following the breakdown of the marriage, the husband entered into a series of transfers and arrangements which, viewed individually, might have seemed modest. But inch by inch, they created a picture of deliberate manoeuvring designed to frustrate the wife’s claim for financial relief.

The wife applied under Section 37 Matrimonial Causes Act 1973, which allows the court to set aside transactions where there is an intention to defeat a spouse’s financial remedy claim. The threshold is not that the transfer has to succeed in defeating the claim—only that the intention was there.

The Court’s Approach
The judge carefully analysed the pattern of conduct:

Timing of transfers, aligned with litigation milestones.
The lack of credible commercial justification for some arrangements.
The cumulative effect of the dealings, which reduced the pot available for division.

This “inch by inch” strategy backfired. The court was satisfied the husband’s actions engaged s.37, and steps were taken to preserve assets for the wife’s claim.

Key Legal Principles

Section 37 MCA 1973: empowers the court to set aside dispositions intended to defeat claims, even if they don’t actually succeed in doing so.
Intention is enough: the test is not whether the transaction did defeat the claim, but whether it was meant to.
Timing and context matter: suspiciously timed transactions, especially once proceedings are on foot, will be closely scrutinised.

Why It Matters
This judgment underscores the court’s willingness to step in where one party seeks to erode the asset base in a piecemeal fashion. For practitioners, it highlights the importance of:

Promptly monitoring and investigating asset movements;
Using s.37 strategically to safeguard assets at risk;
Advising clients that tactical dispositions are likely to be exposed and unwound.

Final Thought
IN v CH is a reminder that family courts take a dim view of financial manoeuvres designed to tilt the playing field. A spouse cannot, inch by inch, chip away at the marital assets in the hope of leaving their partner short. The law is equipped to unwind such moves—and often does.

Published by James Thornton in Blog

Tags: case law, dispositions, inch by inch, s.37, set aside

8 August 2025

Deadlines Matter: When a Missed Statement Costs You Your Voice in Court

In the fast-paced, paper-heavy world of family law litigation, deadlines are more than administrative niceties — they are the procedural backbone of fairness. The recent case of AB v CD [2025] EWFC 253 (B) is a textbook example of what happens when parties ignore court directions and then scramble for leniency.

The Issue: Too Late, Too Weak, Too Bad

This was meant to be a straightforward final hearing in financial remedy proceedings — until it wasn’t. The wife (AB) had failed to file her Section 25 witness statement by the deadline ordered by District Judge Malik. Worse, she also failed to apply for permission to rely on a late statement until the hearing had already begun.

District Judge Dodsworth had no difficulty identifying the scale of the non-compliance:

The witness statements were late.
The hearing bundle exceeded page limits without permission.
Position statements were filed far outside the permitted window.
The excuse for lateness — vague references to difficulties with previous counsel and late disclosure from the husband — was unsupported by any real evidence.

The court noted that the failure was intentional, without any good explanation, and had the effect of prejudicing the husband’s ability to respond. In short: this wasn’t just a delay — it was a breakdown of procedural fairness.

The Rules: No Statement, No Oral Evidence

Under the Family Procedure Rules 2010, specifically FPR 22.10, a party who fails to serve a witness statement by the ordered deadline cannot call that witness without the court’s permission. The rule is crystal clear. Permission must be sought — and granted — for late compliance.

Furthermore, FPR 4.5(3) makes clear that even if both parties agree to late service, that doesn’t fix it. The court’s permission is the only way forward.

Applications for relief from sanctions fall under FPR 4.6, which mirrors the well-known Denton test from civil litigation. Courts must consider:

The seriousness of the breach;
Why it occurred;
All the circumstances, including the interests of justice and the need for rules compliance.

In AB v CD, the court found the breach to be serious, the explanation weak, and the resulting prejudice significant. Unsurprisingly, the application failed.

Lessons for Practitioners and Parties Alike

This case is a reminder that:

Deadlines are not suggestions. Miss them, and you may lose the right to make your case.
Excuses must be real and supported by evidence. Vague statements in a box on Form D11 won’t cut it.
Relief from sanctions is not automatic. Judges expect discipline, especially in overburdened family courts.

As District Judge Dodsworth aptly noted, ignoring directions is “effectively a form of cheating” — echoing language from Xanthopoulos v Rakshina [2022] EWFC 30.

Final Word: Fairness Requires Compliance

The Family Court system is under immense pressure, and judicial patience for procedural laxity is wearing thin. If a party wants to be heard, they must take their procedural obligations seriously. AB v CD is a harsh but fair reminder that the cost of default can be silence.

Published by James Thornton in Blog

Tags: case law, fpr, fpr 22.10, statements

7 August 2025

When £15 Million Isn’t Enough: Valuation, Illiquidity and Tax Risk in HNW Financial Remedy Cases

In Michael v Michael (No 3) [2025] EWFC 245, His Honour Judge Hess dealt with the tangled web of asset valuation, liquidity, tax exposure, and non-matrimonial property in a case where the wife emerged with over £15 million—but still raised grounds of unfairness.

This is a case that reminds us how complexity doesn’t disappear with wealth—it just changes shape.

Illiquidity: The Risk of ‘Paper Wealth’

The wife’s complaint was rooted in the fact that the majority of her award was illiquid—tied up in company shares and private assets—while the husband retained greater accessible cash. The court acknowledged that illiquidity could pose real-world difficulties, but ultimately found that in the context of such large sums, the imbalance did not render the award unfair.

The court is unlikely to accept illiquidity as a basis to disturb an otherwise generous settlement—especially when the party has received many millions, even if not immediately spendable.

Tax Risk: Hypothetical or Real?

The wife raised concerns over latent tax liabilities associated with her share of the business assets. The court reiterated the well-established principle: speculative tax risks won’t generally reduce the award unless there is a clear and quantifiable liability.

Myerson v Myerson [2009] EWCA Civ 282 remains good law: parties must live with the ups and downs of asset valuation, especially where shares are retained as part of the agreed or ordered outcome.

Valuation of Private Companies

A significant theme in the case was the valuation of a private business—standard fare in HNW divorces. Notably, the court endorsed the single joint expert’s conclusions, and rejected the idea of a second valuation, in line with the Daniels v Walker principles. The dispute centred not just on quantum, but on the structure of how business assets were to be divided or retained.

Non-Matrimonial Assets and Contribution

A recurring argument from the husband was that certain business interests and inherited property fell outside the matrimonial pot. The judge acknowledged the concept of non-matrimonial property but found that over such a long marriage, and due to the intermingling of finances, much of the distinction had become blurred.

Overall Fairness in Ultra-HNW Settlements

The court took a wide-lens view: although the wife received just under 40% of the overall wealth, she was awarded £15.25 million in assets—a sum that exceeded her assessed needs by some distance.

This underscores the principle that “needs” are not capped at bare necessities in high-value cases, but also that sharing may still be moderated where non-matrimonial property dominates the asset base.

Conclusion

Michael v Michael is not groundbreaking, but it offers a valuable reaffirmation of core financial remedy principles:

Fairness does not demand equality in every scenario.
Illiquidity and hypothetical tax should be carefully evidenced.
The court will balance contributions, needs, and asset origin—but not at the expense of pragmatism.

A strong case to cite when clients equate perceived imbalance with unfairness—especially when the sums involved are comfortably in the eight-figure bracket.

Published by James Thornton in Blog

Tags: case law, hnw, liquidity, myerson, needs, ultra hnw, valuation

4 August 2025

Soft Loans, Hard Truths: Untangling Family Debt in Divorce

In JB v RB [2025] EWFC 194 (B), Recorder Allen KC was asked to answer a deceptively tricky question: when is a loan not a loan? The case delves into the increasingly common issue of "soft loans" from family members, and whether they should be treated as liabilities or mere gifts when dividing the matrimonial pot.

This case is a useful reminder for practitioners: not all IOUs are created equal—and unless properly evidenced, a loan may find itself at the back of the queue.

The Background

The husband (H) in JB v RB contended that two significant loans from his family—amounting to over £300,000—should be treated as matrimonial liabilities and reduce the net assets available for division. The wife (W) disputed this, claiming they were either gifts or at most soft loans unlikely to be repaid.

As is typical in these disputes, the “creditors” were H’s close family, and there was no independent documentation or third-party enforcement.

The Legal Framework: What Makes a Loan “Soft”?

The court in JB v RB adopted the approach endorsed in P v Q (Financial Remedies) [2022] EWFC B9 (HHJ Hess) and cited by Mr Justice Mostyn in P v Q [2022] EWFC 93, considering a range of factors when evaluating whether a loan should be treated as a genuine liability:

Was there a written agreement?
Were there any terms of repayment?
Was there interest?
Has any repayment actually been made?
Would enforcement be pursued?
Is the lender in the habit of enforcing such arrangements?

Where the answers to these questions suggest a “soft” arrangement—particularly where the parties would not expect the money to be repaid unless convenient—the court is more likely to treat it as a gift.

What the Court Found

In JB v RB, the judge concluded that the husband's claimed loans did not satisfy the criteria of a hard liability. Key points:

There was no loan agreement, no repayment schedule, and no evidence of enforcement.
The judge doubted the lender (the husband's mother) would pursue repayment if it meant her son being disadvantaged.
No repayments had been made.
The timing of the funds coincided suspiciously with the breakdown of the marriage.

The result? The sums were excluded from the schedule of liabilities. The husband's argument that they should be “added back” into the net asset pool failed.

Practical Guidance for Practitioners

Get it in writing: If family money is intended to be a repayable loan, make sure there’s documentation.
Ask the hard questions early: Consider early on whether the client’s claims about loans will stand up to judicial scrutiny.
Timing matters: Late-stage “loans” appearing post-separation are especially vulnerable.
Be wary of litigation risks: Contesting soft loans can be expensive and often yields little benefit.
Disclosure and evidence: Bank transfers alone won’t prove a debt exists. Courts want to see the paper trail and intentions behind the payment.

Conclusion: A Hard Line on Soft Loans

JB v RB confirms what family lawyers increasingly know: courts are sceptical of informal family loans, especially where they surface late in the day or are unsupported by clear documentation.

For spouses trying to insulate wealth or shrink the marital pot with a conveniently timed IOU, this case is a warning. If it walks like a gift and quacks like a gift—it probably won’t be treated as a loan.

Published by James Thornton in Blog

Tags: case law, soft loan

1 August 2025

How Private Is Your FDR? A Sacrosanct Warning from BC v BC

Is an FDR hearing truly sacrosanct? That’s the core question raised in BC v BC [2025] EWFC 236, a case that challenges the traditional shield of confidentiality that surrounds Financial Dispute Resolution (FDR) hearings.

Practitioners have long operated under the assumption that discussions at a private FDR are absolutely protected from later disclosure. But as BC v BC shows, even this “sacrosanct” zone may be pierced—when justice demands it.

The Background: A Dispute About Disclosure

Following a final hearing in financial remedy proceedings, one party in BC v BC sought to adduce material from the previous private FDR. This included:

Details of what had been offered or said at the FDR,
The tone and substance of the judge’s indications,
Written materials submitted for the FDR.

The opposing party objected, invoking the well-known principle that FDR hearings are off-limits—expressly confidential and protected from use in later litigation.

But the applicant argued that material from the FDR was necessary to:

Resolve questions about costs, and
Respond to representations made post-hearing that, it was claimed, mischaracterised what occurred during the FDR process.

FDR Confidentiality: Where We Stand

Under FPR 9.17(2), discussions at an FDR are “without prejudice”—they cannot be referred to in later proceedings. This rule aims to:

Encourage open, candid settlement talks,
Shield parties from their own tactical concessions being used against them,
Promote finality without fear.

The leading case of Clibbery v Allan [2002] EWCA Civ 45 and later authorities have affirmed that FDRs are quasi-privileged—not just confidential by practice but by rule.

So, how did the court square this with the request for disclosure?

What The Court Said in BC v BC

Mr Justice Mostyn reaffirmed the critical importance of FDR confidentiality, describing it as a "cornerstone" of the financial remedy system. However, he also acknowledged:

The tension between confidentiality and a party’s right to respond to unfair or misleading claims made outside court.
That once a party has referred to FDR discussions improperly, this may open the door to limited rebuttal disclosure.

This follows earlier dicta suggesting that confidentiality can be waived in narrow circumstances—particularly where it has already been breached by the other side.

The court struck a careful balance: most of the FDR material remained protected, but limited disclosure was allowed for the narrow purpose of correcting what had been said elsewhere.

Key Pointers for Practitioners

FDRs remain highly protected, and parties should never assume they can refer to them freely.
Courts may permit limited reference to FDR material—but only where necessary to correct misrepresentation or where one party has already breached confidentiality.
Be extremely cautious in costs correspondence or post-hearing communications. If you hint at what occurred during the FDR, you may unintentionally waive privilege.
Keep FDR notes and offers clearly marked as “without prejudice” and separate from open material.
Remember that confidentiality is not absolute—it exists to serve justice, not to obstruct it.

Conclusion: Still Sacrosanct, But Not Untouchable

BC v BC is a rare but important case in the FDR landscape. It reminds us that while FDRs are shrouded in confidentiality, that shroud can be partially lifted when fairness demands it.

For family lawyers, the case serves as a reminder to:

Take care in post-FDR communications,
Avoid casual references to the content of those hearings,
And prepare clients for the possibility that in exceptional cases, the court may permit limited disclosure.

The “sacrosanct” principle lives on—but not without boundaries.

Published by James Thornton in Blog

Tags: fdr, pfdr, privilege, without prejudice

25 July 2025

SJEs Still Stand: A Reaffirmation of Daniels v Walker and the Proper Use of Expert Evidence

In the world of family law financial remedies, expert evidence can make or break a case. But who gets to call the expert—and what happens when one party disagrees with the conclusions? The recent decision in BY v GC [2025] EWFC 226 (24 July 2025) provides a modern reaffirmation of the long-standing principles from Daniels v Walker [2000] 1 WLR 1382, supported by GA v EL [2023] EWFC 187.

Together, these cases make clear: Single Joint Experts (SJEs) remain the cornerstone of fairness, cost-efficiency, and procedural discipline in family litigation.

A Quick Recap: What Daniels v Walker Says

The 2000 Court of Appeal case remains the leading authority:

Parties may seek to rely on a second expert only if they have legitimate grounds for challenging the SJE’s opinion.
This must be done by application and in accordance with procedural rules—not via backdoor instructions or surprise evidence.
The court will balance the interests of justice, proportionality, and procedural fairness in deciding whether to permit departure from the SJE route.

BY v GC [2025] EWFC 226: A Sharp Reminder

In BY v GC, one party sought to introduce a second expert late in the day to counter a valuation provided by the SJE. The court took a firm line:

The application was refused as procedurally improper and unjustified.
There was no early indication that the SJE report would be disputed.
The second expert had not been jointly instructed and came without permission.

The judge reinforced the idea that where parties agree to a single expert, they are bound to that process unless a proper application is made, and even then, permission is granted sparingly.

GA v EL [2023]: More than Just Reinforcement

In GA v EL, Mostyn J addressed a similar issue—one party disagreed with the SJE report and tried to introduce a second opinion. He made clear:

There is no automatic entitlement to a second expert just because you disagree with the first.
Courts should discourage a “battle of experts” unless essential.
SJE procedure exists to reduce cost, delay, and forensic gamesmanship.

This case is a strong follow-up to Daniels, warning litigants that the court will enforce the procedural framework strictly.

Top 5 Tips for Practitioners

Treat SJEs as binding unless there is a genuine, well-founded concern.
Use Part 25 and Daniels v Walker procedure if challenging the SJE—don’t cut corners.
File applications early, ideally after seeing the draft report, with an initial view from a “shadow expert” if needed.
Don't delay: lateness alone can justify refusal.
Make sure clients understand that once a SJE is agreed, it’s not just another opinion—it’s the only one the court may hear without permission.

Final Thought

Between Daniels v Walker, GA v EL, and now BY v GC, the message from the courts is clear: expert evidence must be managed with discipline and care. SJEs aren’t just convenient—they are central to justice in financial remedy cases.

As the latest case shows, parties who sidestep the rules risk more than just a wasted report—they risk judicial disapproval, costs consequences, and an uphill battle in court.

If you're advising on an expert issue, make sure you’re playing by the Daniels rulebook.

Published by James Thornton in Blog

Tags: daniels v walker, single joint expert, single joint expert report, sje, valuation

22 July 2025

When Does Conduct Matter? Two Recent Cases Clarify the Rules in Financial Remedies

Conduct arguments in financial remedy cases are famously hard to win. The bar is high, the principles are narrow, and the courts are cautious. But two recent decisions—MRU v ECR [2025] EWFC 218 (B) and Y v Z [2025] EWFC 221—help clarify the parameters of what counts, when conduct should be pleaded, and how a court might be persuaded that it should make a difference.

Case 1: MRU v ECR — Imprisonment and its Aftermath

In MRU v ECR, the wife had served a prison sentence for attempting to interfere with a judicial process in earlier Children Act proceedings. At final hearing, the husband sought to rely on this as conduct within section 25(2)(g) of the Matrimonial Causes Act 1973. The judge found that the wife’s actions had caused significant disruption and anxiety to the family and could not be ignored when considering the fair division of assets.

Although the case did not result in a punitive financial order, it did result in the husband keeping the former matrimonial home and the parties' pensions being equalised, reflecting his increased needs and financial vulnerability post-incident.

Key point: Serious criminal conduct, especially when linked to the family breakdown, can be relevant even in low-asset cases—particularly if it affects the other party's ability to rebuild financially or psychologically.

Case 2: Y v Z — Conduct vs. Nuptial Agreements

In contrast, Y v Z involved a dispute over how to interpret a pre-nuptial agreement (PNA) in light of the husband's alleged financial misconduct. The wife claimed he had taken millions from her accounts without consent and even doctored emails to hide it. But the question for Mr Justice Cusworth was procedural: should this be pleaded formally as conduct under section 25(2)(g), even though it was about how the PNA should be implemented?

The court held that yes, the wife should be allowed to amend her pleadings to include conduct, but that this was not a radical change—she had always intended to argue that fairness required a deduction from the husband's entitlement due to his financial behaviour. Still, the judgment highlights the fine lines between:

Unfair behaviour affecting what’s "owed" under an agreement; and
Gross or obvious conduct justifying a punitive financial adjustment.

Key point: If you're alleging dishonest or improper financial conduct, plead it properly under s.25(2)(g)—but courts may still consider fairness outside that framework if behaviour undermines the structure of an agreement or the division of assets.

Lessons for Practitioners: How to Succeed With a Conduct Case

Conduct will only bite financially in limited circumstances—but where it does, it must be:

Particularised with clarity (dates, figures, documents);
Linked to a financial consequence (loss, cost, waste); and
Pled early and explicitly under the correct statutory route.

You can’t smuggle in a conduct case “by the back door.” As Peel J warned in Tsvetkov v Khayrova [2023] EWFC 130:

“It is wholly inappropriate to advance matters at final hearing as being part of the general circumstances of the case which do not meet the high threshold for conduct...”

But Y v Z also reminds us that:

“There have hitherto been a number of situations where a question of how a party has behaved may well have been relevant...without either party invoking the conduct provisions.”

That nuance matters. Courts are mindful that bad behaviour may affect the fair implementation of pre-nups or entitlement to share—but that’s not the same as punishing it under s.25(2)(g).

Final Word

Together, MRU v ECR and Y v Z show us both ends of the conduct spectrum—from clearcut wrongdoing with real-world fallout, to sophisticated financial gamesmanship that might affect entitlement but not necessarily trigger punishment.

If you’re going to plead conduct, do it early, do it properly, and make sure you can prove both what happened and why it matters financially. If you’re opposing it, challenge its scope and the causal link to the outcome. The courts will listen—but only if the case is made carefully, not emotionally.

Published by James Thornton in Blog

Tags: case law, conduct, s 25(2)(g)

16 July 2025

When Disclosure Fails and Borders Blur: Family Law Challenges in PZ v ZD

In PZ v ZD [2025] EWFC 171 (B), Deputy District Judge Gwynfor Evans faced a case that was modest in financial scale but immense in evidential and procedural complexity. It illustrates how procedural diligence and judicial perseverance are just as vital in modest asset cases as they are in “big money” disputes.

This case is a goldmine of practice points for family lawyers, particularly on adverse inferences, cross-border evidence-taking, and how disclosure failures can frustrate even straightforward needs-based applications.

Modest Assets, Major Complications

At first glance, this was a typical Schedule 1 and Matrimonial Causes Act 1973 case involving a medium-length marriage, three children, and modest disclosed assets. But beneath the surface lurked a web of withheld financial information, dubious bank closures, and dubious claims about living off family largesse.

The judgment makes clear that non-disclosure is not tolerated simply because the pot is small. DDJ Evans explicitly rejected any suggestion that "big money" legal principles don’t apply to smaller cases. As he said: “I reject that in its entirety”.

Adverse Inferences: A Judicial Tightrope

The judge found the husband to be evasive, inconsistent, and untruthful—particularly in claiming zero income and no bank accounts despite large inflows from service stations and a history of complex financial dealings.

Applying the well-established principles from NG v SG [2011] EWHC 3270 (Fam) and Moher v Moher [2020] EWCA Civ 467, the court made robust findings and drew adverse inferences, awarding lump sums based not just on what was disclosed, but what clearly wasn’t.

Key point: even where precise quantification isn’t possible, courts may infer the existence of undisclosed assets or earning capacity if the evidence supports it.

Remote Evidence from Abroad: The Pakistan Dilemma

A standout issue in this case was the husband's application to give evidence remotely from Pakistan. This posed unique challenges, as Pakistan is not a signatory to the 1970 Hague Evidence Convention, and the UK has no standing arrangement for taking evidence from Pakistan via video link.

Despite conflicting guidance—from the Family Procedure Rules, PD22A, and the Foreign, Commonwealth & Development Office—the judge allowed remote evidence, relying on practical considerations and leadership guidance. However, he later regretted this, as the connection was unstable, and proceedings were frequently disrupted.

Practice tip: Counsel and parties must plan early when witnesses are abroad, especially outside Hague Convention countries. Seek official permissions, use Annex 3 of PD22A, and liaise with the Foreign Office well in advance.

Court Orders Must Mean Something

Multiple disclosure orders were made. The husband ignored most of them. Bank accounts were allegedly closed “by the banks” just before disclosure deadlines. Key documents were missing until penal notices were issued.

The judgment is a sobering reminder that failure to comply with disclosure can be more costly than disclosure itself. Judges may—and should—fill in the gaps with common sense and robust inference.

When Modest Meets Complex

This case underscores a central truth in family litigation: complexity does not correlate with asset value. Even where the finances are modest, gamesmanship, non-cooperation, and international entanglements can make for highly technical, demanding litigation.

Final Thought

PZ v ZD may not involve millions, but it showcases the full weight of the court’s powers when faced with persistent non-disclosure and cross-jurisdictional complications. It’s a cautionary tale for parties who believe that living overseas, pleading poverty, or closing bank accounts will shield them from judicial scrutiny.

For family lawyers, it’s a timely reminder that careful preparation, technical awareness (particularly around remote evidence and disclosure), and a firm hand on procedure are essential—even in “small” cases.

Published by James Thornton in Blog

Tags: adverse inferences, cross border, evidence, moher, ng v sg, non disclosure

15 July 2025

Too Late to Wait: When Non-Compliance Justifies Setting Aside a Pension Sharing Order

In AP v TP [2025] EWFC 190 (B), His Honour Judge Farquhar delivered a pointed and practical judgment showing that while final orders are meant to be just that—final—there are limits to judicial patience, especially where one party repeatedly obstructs their implementation.

This decision illustrates the continuing relevance of the Thwaite jurisdiction in family law and offers important clarity on when a Pension Sharing Order (PSO) can be set aside—not because circumstances have changed, but because one party has simply refused to cooperate.

The Background: Final Order, Endless Delay

The parties had reached a financial settlement in April 2023 that included:

The sale of the family home (split 47/53);
A Pension Sharing Order of 48.94% in favour of the wife (TP) from the husband's Aviva pension (worth £193,000).

But two years later, the husband (AP) remained in limbo. Now 70, in poor health, and unable to access his pension, AP faced the stark reality that he could not retire—not because of the court order, but because the PSO had never been implemented. The reason? The wife refused to complete the basic paperwork, despite being chased, ordered, and reminded repeatedly.

The Thwaite Jurisdiction: Equity in Action

Unable to vary the order under section 31 MCA 1973 (because the Decree Absolute had been granted years before), AP turned to the Thwaite jurisdiction, stemming from Thwaite v Thwaite [1981]. This line of authority allows the court to refuse to enforce or adjust executory parts of an order where it would be inequitable to enforce them due to subsequent developments—particularly deliberate frustration.

Judge Farquhar canvassed several key authorities:

Bezeliansky v Bezelianskaya [2016] EWCA Civ 76: endorsing the ability to adjust executory orders obstructed by one party;
BT v CU [2021] and SR v HR [2018]: Mostyn J’s scepticism of the doctrine;
Hersman v de Verchere [2024] and Rotenberg v Rotenberg [2024]: more recent judgments reaffirming its viability.

His conclusion? The Thwaite jurisdiction remains good law, though to be used carefully. And this was a textbook case.

Why Not Barder?

Interestingly, the court explicitly declined to rely on the more stringent Barder test. That doctrine, used to set aside orders due to unforeseen and fundamental changes of circumstance (e.g., sudden death, collapse of a business), did not fit here. This wasn’t about change—it was about non-compliance.

The Result: Final Warning Before the Final Cut

Judge Farquhar ruled that it would be inequitable to uphold the PSO when the wife had spent two years refusing to implement it. He proposed to set aside the PSO entirely unless she complied within 28 days.

The warning was stark—and printed directly into the order:

“This will result in you losing the benefit of approximately £94,000 worth of pension benefits… Your ability to obtain this pension benefit will be lost forever.”

The judge considered and rejected a Pension Attachment Order, as that would undermine the clean break agreed by both parties and lacked jurisdictional support.

Key Points for Practitioners

Non-compliance can void orders: If a party actively obstructs an executory provision, the court may remove it entirely.
Thwaite lives on: Despite some judicial scepticism, the doctrine remains available—especially where enforcing the original order would now be inequitable.
Clean break still holds weight: The court was reluctant to undo the clean break to salvage the PSO—underscoring the importance of structuring settlements properly from the start.
Final means final, but fair must remain fair: The Family Court retains equitable discretion to undo unfairness—but only when the behaviour is egregious and the solution proportionate.

Final Thought

AP v TP reminds us that court orders are not mere aspirations—they are meant to be implemented. When they’re not, and especially when one party stands in deliberate obstruction, the courts are willing to act—even if that means ripping up a carefully negotiated pension share.

For lawyers and clients alike, the case is a clear message: a signed order is not the end of the story if it’s never allowed to begin.

Published by James Thornton in Blog

Tags: barder, pso, thwaite, thwaite jurisdiction

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