Having the last word in financial remedies

Divorce & Matrimonial Finance

03 February 2020

The recent case of AR v ML [2019] EWFC 56 is a cautionary tale against adducing further evidence at a late stage in an attempt to have the last say within financial remedy proceedings.

This case centred around the wife’s application for financial remedy arising out of her marriage to the husband. The matter proceeded to a contested final hearing and during the course of the hearing, the wife was criticised for not providing sufficient evidence to support her position that she would be able to re-house mortgage free. On wife’s case, she would have been left with £530,000 to purchase a suitable property mortgage-free. However, the wife had failed to provide any evidence that demonstrated she would be able to purchase a suitable property in the area she wished to rehouse in within that price bracket. The wife had also failed to produce any property particulars for properties in alternative areas. This was highlighted by the husband’s Counsel who argued that there were no suitable properties available to meet the wife’s housing needs for less than £500,000 and therefore her position was unsustainable.

After considering the evidence and hearing from the advocates present, the trial judge delivered a judgment in which she awarded the wife 49% of the total assets which equated to £412,000 (after debts had been cleared). Upon hearing the judgment being delivered in Court, the wife’s Counsel immediately indicated they would be appealing the decision. Not unheard of, there was then lengthy discussions between the Judge and the legal representatives present.

However, most unusually, the Judge then gave a second judgement whilst in Court and adjourned the matter for “finalising judgment and reconsideration of suitable housing fund for the [wife] and the child of the family”. The Judge directed that the wife should file a statement addressing her position on her housing needs and permitted the husband to file a statement in response.

Unsurprisingly, the husband went on to appeal the decision of the trial Judge. In considering the appeal, Mr Justice Mostyn held:

“I have to say, with all due respect, that the Judge’s decision was not based on the correct legal principles as set out above and, inasmuch as it was an exercise of “discretion”, was plainly wrong. There was no good reason shown why the judge should depart from the terms of her judgment. There was no reference to the principle of finality. There was no reference to the concept of due diligence. It was merely another example of counsel on behalf of a disappointed litigant seeking spuriously to try to get the judge to change her mind immediately after judgment has been delivered, to which the judge should not have succumbed. ”

The husband’s appeal was allowed and the original judgement was set aside. The Court stressed that the finality principle remains of high importance within financial remedy proceedings and trials should not be treated as dress rehearsals.

This case therefore highlights that, whilst tempting for advocates to argue until the very end and have the last word, it is imperative that all evidence and arguments are made before the Judge is asked to give judgment. Due diligence should be exercised throughout proceedings to ensure that evidence that is available is provided in a timely manner to ensure there is no need to “re-run” the case at a later date.

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