Private Law Update
Index of Cases
- Goddard-Watts v Goddard-Watts [2023] EWCA Civ 115: The Court of Appeal has provided guidance on the role of Kingdonv Kingdon [2010] EWCA 1409 and ‘how to approach a case where on the one hand the increase in the value of the company is not part of the marital acquest but on the other, the reason that the court is seized with the matter many years post separation is as a consequence of the husband’s wilful non-disclosure’.
- Tousi v Gaydukova [2023] EWHC 404 (Fam): The appellant contends that the judge at first instance did not have the jurisdiction to make a transfer of tenancy order without determining the appellant and respondent’s marital status. In his appeal judgment, Mostyn J criticises the complexity of the existing structural law of marriage in England and Wales and asks the Supreme Court for clarity on the status of overseas ceremonies which disregard law but hold as valid in the minds of the parties.
- D v R [2023] EWHC 406 (Fam): Appeal by M from finding that her allegations of domestic abuse were not proved, on grounds that the Court failed to comply with FPR Part 3A and Part 3AA.
Goddard-Watts v Goddard-Watts [2023] EWCA Civ 115
Judgment handed down by Macur LJ.
The Court of Appeal has provided guidance on the role of Kingdon v Kingdon [2010] EWCA 1409 and ‘how to approach a case where on the one hand the increase in the value of the company is not part of the marital acquest but on the other, the reason that the court is seized with the matter many years post separation is as a consequence of the husband’s wilful non-disclosure’.
Background:
This appeal has a very complicated history. It is an appeal from the third determination of the wife’s claims in January 2022, there having been two earlier applications to set aside judgment for deliberate non-disclosure. Whilst it is probably unique in that regards it illustrates the extent and applicability of the Kingdon approach.
The wife’s application for financial relief was considered by first instance courts on five occasions, whether to approve the initial ‘consent’ order in 2010, to set aside orders in 2015 and 2019, and in substantive re-hearings in 2016 and finally in 2022, the subject of this appeal.
The wife (“W”) and husband (“H”) married in 1996, were separated in 2009 and divorced in 2010. They reached a negotiated settlement of their financial relief claims which was approved by consent order on 1 June 2010.
In 2015, W made an application to set aside the order after discovering that H had been the principal beneficiary of undisclosed trusts. The application came before Moor J who concluded that H’s disclosure had not been full and frank. Moor J set aside the consent order and gave directions for a re-hearing in June 2016.
The re-hearing was before Moylan J (as he then was). ‘An issue for his determination was whether the assets should be divided on present day valuations, or in respect to what the wife would have received in 2010 if the true position had been known.’ Moylan J determined the case by isolating the resources that had not been disclosed and hearing expert evidence on their value in 2010. Moylan J awarded W an additional lump sum of £6.2m.
In 2018, H sold shares in his business [sc. CBA] and received £20.45m with the option of receiving a further £61.3m for the residual shares. H had failed to disclose the potential sale of his business in the proceedings before Moylan J and W applied to set aside his order.
The case appeared before Sir Jonathan Cohen whose approach to the re-hearing was as follows:
- My starting point is that I am adjudicating upon W’s claim de novo albeit against the background of the orders made in the past which have provided her with funds. I am acutely aware of the criticisms made by the courts in the past of H’s disclosure which has deprived W of the opportunity of being able to consider the resolution of her claims with full knowledge of what the asset base was.
- I bear these points strongly in mind, but I am convinced that the approach I should adopt is the Kingdon approach. I reach that conclusion for the following reasons:
iii) Moylan J adopted the Kingdon approach in 2016 and the fact that one further aspect of non-disclosure has come to light does not lead to a conclusion that I should adopt a different course. There is a merit in consistency, but it is not just consistency that drives me to this approach.
- iv) There has never been any attack in this hearing against H’s disclosure of the value of CBA [sc H’s company] in 2010. Indeed, Moylan J had the benefit of a retrospective valuation prepared by Mr Greene which showed that H’s disclosed value of the company was in the right region. Ms Stone says that the value in 2010 is of no or little relevance in the light of the non-disclosure generally, and in particular of H’s undisclosed trust interests. I do not agree. It was part of the basis of the parties’ agreement.
Sir Jonathan Cohen concluded that W had received an appropriate share of H’s business.
W appealed the order made by Sir Jonathan Cohen due to his adoption of the Kingdon approach and the fact that he relied upon the determinations made by Moylan J as to the value of H’s business. W’s central argument was that she could not receive a fair resolution of her claim ‘without a root and branch investigation of all financial matters de novo; to do otherwise means that the husband has benefitted from the fraud he perpetrated.’
Conclusion:
Macur LJ concluded, that although she did not agree with W’s argument that Takhar v Gracefield Developments [2019] UKSC 13 overrules Kingdon in any case of fraudulent non-disclosure in financial remedy proceedings, in this case H’s pattern of fraudulent non-disclosure was ‘so far reaching that it positively required the judge to consider “the entire financial landscape” completely anew.’
Although it can be possible to isolate and rectify issues of non-disclosure in some circumstances, each case should be assessed on its own facts.
Appeal allowed.
The full judgment can be found at: https://www.bailii.org/ew/cases/EWCA/Civ/2023/115.html
Tousi v Gaydukova [2023] EWHC 404 (Fam)
Judgment handed down by Mostyn J.
The appellant contends that the judge at first instance did not have the jurisdiction to make a transfer of tenancy order without determining the appellant and respondent’s marital status. In his appeal judgment, Mostyn J criticises the complexity of the existing structural law of marriage in England and Wales and asks the Supreme Court for clarity on the status of overseas ceremonies which disregard law but hold as valid in the minds of the parties.
Background:
The appellant (“A”) is an Iranian national and the respondent (“R”) is a Ukrainian national (both also hold British citizenship). On 12 December 1997 a marriage ceremony took place at the Iranian Embassy in Kyiv which was conducted in Farsi. This marriage was not registered with the Ukrainian State authorities.
A and R moved to the UK in 2001 and in 2010 were later granted a tenancy in their joint names of property by a housing association.
A and R separated in 2019. R applied for a non-molestation and occupation order on 21 April 2020, the first of which was granted ex parte on 28 April 2020.
On 12 May 2020, R and her younger daughter moved out of the property into temporary accommodation.
On 3 and 14 December 2020, Recorder Nice made findings against both parties at a final hearing and concluded the non-molestation order should remain but the making of an occupation order was not possible. Instead, R should apply for a transfer of tenancy.
On 17 September 2023, R applied for the transfer of the former matrimonial home into her name under s53 and Schedule 7 of the Family Law Act 1996. This application was opposed by A. Recorder Allen KC ordered the transfer of tenancy to R and ordered A to vacate the property within 14 days. Concerns regarding the parties’ marital status were raised after the conclusion of the hearing, however, Recorder Allen KC gave a supplemental judgment which concluded that he did not need to try the issue of the validity of the marriage for the purposes of the application.
R appealed the decision, the only ground of appeal with a real prospect of success being that the Recorder was wrong to have made a transfer of tenancy order without first determining whether the parties were legally married.
Conclusion:
It is well established that the formal validity of a marriage celebrated overseas is governed by the foreign law. On appeal Mostyn J heard expert evidence from a Ukrainian lawyer to determine whether the ceremony was capable of being valid in the Ukraine and what matrimonial relief could be awarded by a Ukrainian court. The outcome was that neither party could bring any form of case to a Ukrainian court for recognition of the marriage or otherwise. Mostyn J noted, however, that both A and R had intended to create a valid legal marriage between themselves, and they both thought they had. His judgment concluded with a call to arms for clarity in this area of the law:
‘These cases are not rare and remote outliers. There are many religious (usually Islamic) marriages solemnised in private dwellings in gross disregard of our laws (or the host country’s laws) concerning the due form for such ceremonies. According to the judges these ceremonies are so irregular that they amount to non-qualifying ceremonies, a feature of which is that no primary or ancillary matrimonial relief may be awarded. Yet, the ceremony is a valid marriage in the minds of the parties and probably would be recognised as valid by the entire Islamic world. In my opinion the situation is a disreputable mess and urgently needs to be definitively clarified both substantively and procedurally.’
Appeal dismissed.
The full judgment can be found at: https://www.bailii.org/ew/cases/EWHC/Fam/2023/404.html
D v R [2023] EWHC 406 (Fam)
Judgment handed down by Theis J.
Appeal by M from finding that her allegations of domestic abuse were not proved, on grounds that the Court failed to comply with FPR Part 3A and Part 3AA.
Background:
The proceedings concerned two parents who commenced their relationship in about 2015 and married in May 2019. Their child (X) was born the following year, and they separated in June 2021. X remained living with the mother. The parties were unable to agree arrangements for the father to see X. He applied to the court in December 2021 for an order to spend time with X.
Directions were made by the magistrates for disclosure from the local authority, police, and medical evidence and for the mother to file a Scott Schedule of the allegations relied on. The mother set out ten findings, including allegations of domestic abuse, sexual harm and coercive and controlling behaviour.
Both parents were legally represented at the fact-finding hearing in September 2022. This was a remote hearing, and it was agreed that all parties’ cameras remained switched on during the evidence. Both parents were able to see each other when they gave evidence. The mother was shown video recordings she relied upon during the course of her evidence and was asked about intimate issues regarding the parents’ relationship, based on the alleged findings. It is accepted that at no stage did any legal representative for either party refer the court to the provisions of FPR Part 3A (Vulnerable Persons: Participation in Proceedings and Giving Evidence), and at no stage did the court independently consider those provisions.
Following a four-day fact-finding hearing, Recorder Bradberry determined that the allegations made by the mother were not proved to the required standard. The Judge noted in the judgment that the mother was ‘vague in her responses and in her recollection of events which made her an unconvincing witness.’
The mother issued a notice of appeal, dated 13 October 2022, and a supporting statement and letter from her GP which described that she was ‘not aware of any special measures that could have been made’, and that proceedings were ‘distressing and very upsetting which led her to be clouded with emotion during the time she gave her evidence.’
Legal Framework:
FPR Part 3A, introduced in 2017, makes provision for vulnerable persons to participate in and/or give evidence in family proceedings. This is supplemented by Practice Direction 3AA.
FPR 3A.2A (1) – Subject to paragraph (2), where it is stated that a party or witness is, or is at risk of being, a victim of domestic abuse carried out by a party, a relative of another party, or a witness in the proceedings, the court must assume that the following matters are diminished –
- the quality of the party’s or witness’s evidence; and
- in relation to a party, their participation in the proceedings.
- the party or witness concerned can request that the assumption set out in paragraph (1) does not apply to them if they do not wish it to;
- where the assumption set out in paragraph (1) applies, the court must consider whether it is necessary to make one or more participation directions. B. otherwise known as ‘special measures’.
PD3AA para 5.2 – When the court has decided that a vulnerable party, vulnerable witness or protected party should give evidence there shall be a “ground rules hearing” prior to any hearing where evidence is to be heard, at which any necessary participation directions will be given.
The Appeal:
Permission for the mother to appeal the order of Recorder Bradberry dated 23 September 2022, was given on 6 January 2023 on three of the mother’s nine grounds of appeal.
Ground 1 of the appeal focussed on the requirements imposed on the court by FPR Part 3A. The legal representative for the mother emphasised that the serious nature of the allegations clearly came within the definition of domestic abuse. As such, FPR Rule 3A.2A was engaged, meaning that the mother as a complainant of domestic abuse and thus a vulnerably party inevitably placed a duty on the court to consider what, if any, participatory directions that she required in order to give her evidence.
It was submitted that no account was taken by the Judge as to the mother’s vulnerabilities and what impact giving oral evidence in front of the father might have had. The Judge, in reaching conclusions about the mother’s lack of credibility, relied upon inconsistencies in her oral evidence and the way she gave her evidence, noting in the judgment that the mother was ‘at times confusing and incapable of answering the question asked’.
Ground 2 related to the permission of the video recordings to be played during the mother’s evidence without having a ground rules hearing to consider what, if any, impact that may have and what, if any, participation directions should be made.
Conclusion:
Mrs Justice Theis DBE held that the appeal be allowed on both grounds 1 and 2 for the following reasons:
- No ground rules hearing took place before the fact-finding hearing, as per PD3AA para 5.2. The issue of vulnerability was not even considered and therefore this ‘left a lacuna in the procedural safeguards that are in place for a vulnerable witness’;
- ‘The court did not separately address or consider the participation directions that could have been made to enable a vulnerable party to give evidence, irrespective of whether they were required or not… No thought was given to whether the father’s camera should have been switched off, whether there could have been a different way to ask questions or manage how they were asked’ in light of the mother’s vulnerabilities.
- As to the issue of the video recording evidence, ‘no consideration was given as to how that could best be done, what the options were and what the impact would be on the mother.’ The detailed guidance given by Gwynneth Knowles J in Re M was not referred to.
- ‘The combination of the wholesale failure to consider FPR Part 3A… together with the lack of any reference or proper consideration of the mother’s vulnerability in the judgment… had the consequence that the hearing was unfair, and the conclusions reached could not remain in place.’
Theis J concluded that:
‘Consideration of the requirements of FPR Part 3A and PD3AA should now be embedded in the legal landscape of these cases to ensure the important safeguards they provide are kept under active review.
In cases where domestic abuse is alleged, the position the court must take is now very clear. As a result of the change brought in by s.63 Domestic Abuse Act 2021 and put into effect by the revisions to FPR Part 3A.2A on 31 January 2022:
(1) A party or witness who is, or is at risk of being, a victim of domestic abuse (as defined in s1 DAA) is to be assumed to be a vulnerable witness or party.
(2) Where that applies the court must consider whether it is necessary to make one or more participation directions.’
Appeal allowed.
The full judgment can be found at:
https://www.bailii.org/ew/cases/EWHC/Fam/2023/406.html
Written by Pupil Barristers Fintan Molloy and Chloe Pinches
