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22 April 2025

Ignorance Isn’t Always Bliss: Shared Misunderstanding in Financial Disclosure

In family law, few allegations carry more weight than material non-disclosure. When a party believes they were misled during financial remedy proceedings, the remedy they seek is serious: setting aside a final order. But what if no one really understood the full picture—not even the alleged “deceiver”?

The recent decision in Norman v Norman [2025] EWFC 107 (B) offers a compelling insight into this dilemma. The case challenges the usual narrative of one party hiding assets and the other being deceived. Instead, it presents a situation where both parties may have negotiated in good faith but with an incomplete understanding of key facts.

The Background

The wife applied to set aside a financial remedy consent order made in 2023, alleging that the husband had failed to disclose a beneficial interest in certain trust arrangements—referred to as the St Ives Trusts. She argued that this interest, once properly understood and quantified, revealed that the husband had significantly understated his financial resources at the time the consent order was agreed.

Her application followed a dispute the husband had with the trust shortly after the order was made, which resulted in him obtaining a substantial award of assets.

The Court’s View

District Judge Veal considered whether there had been material non-disclosure sufficient to justify setting aside the 2023 order. The judgment is notable for its rejection of a simplistic “concealer vs. victim” framing.

The court concluded that:

  • At the time of the 2023 order, the husband did not have a clear or present entitlement under the trust and was engaged in a dispute about his position.
  • The wife’s own evidence was inconsistent, including posts she made on online legal forums before the consent order was approved.
  • The court could not be satisfied that either party fully understood the true nature or value of the husband’s potential trust interest at the time.

The result? The wife’s application was refused. There was no sufficient evidence of knowing non-disclosure, and no basis to overturn the order.

Why This Case Is Different

What sets this case apart is that it wasn’t about concealment—it was about mutual lack of clarity. The respondent may have had a latent entitlement, but it was tied up in unresolved legal questions. The applicant might have suspected there was more to the picture but chose not to explore it fully—or waited until the situation became more advantageous.

This poses a crucial question for family lawyers: ‘Can a party claim material non-disclosure when they themselves might have misunderstood, overlooked, or tolerated the ambiguity at the time of settlement?’

Practical Lessons for Practitioners

  • Finality matters. Courts remain cautious about disturbing financial remedy orders, especially where both parties had legal advice and reached agreement through proper process.
  • Disclosure is a two-way street. If your client has concerns, they must raise them before the order is made. Waiting to see how things turn out rarely plays well with the court.
  • Timing is everything. Applications made only after a financial windfall—or the resolution of a dispute—will always attract scrutiny as to motive.
  • Credibility is key. Inconsistent evidence, delayed action, and online commentary can seriously undermine an applicant’s case.

Conclusion

Norman v Norman is a subtle and significant reminder that not every post-order financial development justifies reopening a case. It shows that mutual misunderstanding doesn’t equate to deliberate deception, and that if both parties negotiated in the shadow of uncertainty, the court may still hold them to their bargain.

If you’re advising a client who believes their ex concealed assets, this case highlights a critical truth: to succeed, the claim must rest on more than hindsight and suspicion. It must be supported by evidence, timing, and credibility.

Published by James Thornton in Blog
Tags: case law, financial disclosure, non disclosure, norman v norman
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17 April 2025

Understanding Extended Civil Restraint Orders in Family Law: When Litigation Becomes Obsession

Family law is no stranger to long-running, emotionally charged disputes. But what happens when one party simply refuses to stop litigating—even after years of judgments, failed appeals, and repeated rejections?

That is where the Extended Civil Restraint Order (ECRO) comes in, as demonstrated in the powerful recent decision of Galbraith-Marten v De Renée [2025] EWFC 96.

This case provides a compelling insight into how the courts walk the tightrope between protecting access to justice and defending against relentless, vexatious litigation.

What Is an Extended Civil Restraint Order?

An ECRO is made under FPR 4.8 and Practice Direction 4B, and it allows the court to restrict a party from issuing further applications without permission, usually for up to two years. It’s granted where a party has persistently issued totally without merit applications within a particular set of proceedings.

It’s not about silencing someone—it’s about ensuring the court’s time is not abused, and that the other party is protected from repeated, unmeritorious litigation.

The Facts in Galbraith-Marten v De Renée

This case has a long procedural history: multiple hearings, applications, complaints, and persistent allegations by Ms De Renée against Mr Galbraith-Marten spanning decades. Despite having a financial remedy order in place since 2003, she continued to launch new claims alleging fraud, perjury, and concealment of assets.

The High Court had already imposed an ECRO in 2022. Now, in 2025, it faced the question: Should it be extended again?

Mr Justice MacDonald found that:

  • Ms De Renée had continued to issue meritless applications.
  • Her allegations, though dressed in new language, were substantively the same as those previously dismissed.
  • Her conduct posed an ongoing burden on both the court system and the respondent.

The ECRO was extended for a further two years.

Access to Justice vs Abuse of Process

One of the most important issues in this case is the tension between the right to access the court and the need to prevent abusive litigation.

The court stressed that:

“An ECRO does not prevent a litigant from bringing an application. It merely requires that they get permission first.”

This is an important distinction: the doors of the court remain open, but there is now a gatekeeper.

Practical Points for Family Lawyers

  • When to seek an ECRO: If your client is facing a barrage of repetitive, groundless applications, and previous orders or warnings have failed to deter them, an ECRO may be appropriate.
  • What must be shown: A pattern of applications that have been certified as totally without merit—typically three or more.
  • The standard is high: Courts are cautious in making ECROs and will only do so where the pattern of behaviour is clear and persistent.
  • ECROs are not indefinite: They typically last two years, though they can be extended.
  • Permission is still possible: A restrained party can still apply—with judicial permission—to bring a new claim, ensuring that truly meritorious applications are not blocked.

Final Thoughts

Galbraith-Marten v De Renée is a powerful example of how the family courts are willing to act when litigation becomes obsessive. The ECRO is a vital mechanism for ensuring that the court’s resources—and the other party’s life—are not dominated by endless cycles of accusations and applications.

For family lawyers, this case is a reminder that the court’s tolerance is not infinite. Where parties cross the line from persistence into persecution, the courts will not hesitate to impose firm boundaries.

Published by James Thornton in Blog
Tags: case law, civil restraint orders, cro, ecro, extended civil restraint orders
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16 April 2025

The Right to Privacy in Family Litigation

In the emotionally charged world of family litigation, personal boundaries can easily become collateral damage. But what happens when a party wants to shield their contact details from the other side? The recent decision in Galbraith-Marten v De Renée [2025] EWFC 96 gives us fresh insight into how courts strike a balance between transparency, fairness, and personal safety.

The Context: Why Contact Details Matter

In family proceedings, the default position under FPR 29.1 is that parties' contact details are available to one another. This rule supports procedural fairness, particularly where there are ongoing issues around enforcement or implementation of orders.

But what if one party feels that disclosure would lead to harassment, inappropriate contact, or even the weaponisation of their home address?

The Galbraith-Marten Decision

In this long-running litigation saga, Ms De Renée sought to compel the disclosure of her ex-husband's contact details. Her stated reason? So she could write to HMRC and others regarding his alleged historic non-disclosure in child support and maintenance cases.

The court found:

  • There was no safeguarding risk that justified non-disclosure from a personal safety perspective.
  • However, the real risk was litigation misuse: that the address would be used as a springboard for fresh accusations, further complaints, or vexatious litigation.

The judge ultimately declined to order disclosure, noting that doing so would merely provide "fertile territory for future allegations."

When Is It Appropriate to Withhold Contact Details?

The court can permit non-disclosure of contact information under rule 29.1 where there is:

  • A genuine safeguarding concern (e.g. domestic abuse, stalking, coercive control).
  • A history of litigation misuse, where disclosure might lead to further harassment or unfounded applications.

The decision in Galbraith-Marten suggests that even in the absence of personal safety risks, the court may still refuse disclosure where it serves no legitimate legal purpose and risks undermining court orders or feeding litigious conduct.

Practical Tips for Practitioners

  1. Make a C8 application early if your client wishes to keep their details private. Do not wait until disclosure becomes contentious.
  2. Clearly outline the risk—whether safeguarding, psychological, or procedural.
  3. If acting for the requesting party, demonstrate legitimate need, not simply curiosity or an attempt to reopen old disputes.
  4. Judges are alive to strategic misuse. Pattern behaviour matters: if one party repeatedly re-litigates resolved issues, privacy may trump disclosure.

The Bigger Picture

Privacy and confidentiality are not just about protection from harm—they are also about protecting the integrity of the process. The courts are increasingly willing to restrict the sharing of personal information not just to protect people, but to protect proceedings.

In an age where one letter to the wrong address can spark another year of litigation, withholding a postcode might be the most strategic decision a court makes.

Published by James Thornton in Blog
Tags: c8, case law, confidentiality, fpr rule 29.1, privacy
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16 April 2025

Conditional Appeals in Family Law: A Rare but Powerful Tool – Lessons from Ahmad v Faraj [2025] EWCA Civ 468

A decision from the Court of Appeal in Ahmad and IIB Group Holdings v Faraj [2025] EWCA Civ 468 has caused a stir among family law practitioners. In an unusual but not unprecedented move, the court held that the husband could not proceed with his financial appeal unless and until he complied with a Legal Services Payment Order (LSPO). The message is clear: litigants cannot ignore financial obligations imposed by the court and still expect access to the appeal courts.

The Background

This judgment followed a sprawling financial remedy case between Mr Ahmad (H) and Ms Faraj (W), with IIB Group Holdings also entangled due to property ownership and funding arrangements. The husband had been ordered to pay a substantial lump sum to the wife following findings that he had assets of over £20 million, including a controversial £16 million in disputed accounts.

To ensure parity in representation at the appeal stage, the court made a Legal Services Payment Order (LSPO) requiring H to pay £120,000 + VAT toward W’s legal costs. The wife lacked means; the husband, according to the court, did not.

But H did not pay. Despite having permission to appeal and a stay on enforcement of the lump sum, his refusal to comply with the LSPO put him on a collision course with the court.

What Did the Court Do?

The court deployed a rarely-used but powerful procedural device: a Hadkinson order, preventing the husband from being heard on his appeal until he purged his contempt by paying the LSPO. In the alternative, the court considered but declined to issue an "unless order" (which would have automatically dismissed the appeal unless payment was made).

As Lady Justice King made clear:

"The husband's failure to pay £120,000 + VAT to the wife is deliberate and wilful."

The Hadkinson order was deemed proportionate and necessary to ensure the wife’s access to justice and maintain the integrity of the court’s process.

What Is a Hadkinson Order?

A Hadkinson order is a form of case management order that prevents a party from being heard in court while they remain in contempt—typically by failing to comply with a previous court order. The name derives from Hadkinson v Hadkinson [1952] FLR Rep 287, where the Court of Appeal held that disobedience to a court order could justify limiting a party's right to participate in proceedings. These orders are exceptional and must meet strict criteria: the party must be in contempt; the contempt must obstruct the course of justice; and denying a hearing must be proportionate. In family law, Hadkinson orders are often deployed to secure compliance with financial orders—especially where one party seeks to exploit their financial advantage to the detriment of the other.

Is This Common?

No. While Hadkinson orders are part of the legal arsenal, they are described as a "case management order of last resort" (see Assoun v Assoun (No 1) [2017] 2 FLR 1137). They are reserved for situations where a party is in contempt and their behaviour impedes the course of justice.

That said, the Court of Appeal has signalled that where an LSPO has been properly made and appealed without success, failure to pay it will not be tolerated.

Why It Matters

This case is a shot across the bows for financially dominant parties who attempt to weaponise their wealth. As Peter Jackson LJ stated in De Gaffori v De Gaffori [208] EWCA Civ 2070:

"Failure to pay a legal services payment order is an impediment to justice."

The court’s message is unmistakable:

  • You cannot starve your opponent of legal funding.
  • You cannot defy a court order and still expect to be heard.
  • You cannot hide behind appeals to delay enforcement.

Practical Takeaways for Practitioners

  1. Take LSPOs seriously. Failure to pay can result in Hadkinson orders or strike-out consequences.
  2. Appeals are not an escape route. Even where permission to appeal is granted, compliance with ancillary orders may be a precondition.
  3. Use Hadkinson requests wisely. They are potent tools but must meet strict criteria: proven contempt, impact on justice, and proportionality.
  4. Advise clients early. Especially those with resources, that non-compliance carries reputational, procedural, and financial risk.
  5. Expect robust case management. The family courts are increasingly assertive in managing litigation conduct and ensuring fairness.

Conclusion

Ahmad v Faraj serves as a stark reminder that access to justice cuts both ways. A party cannot pursue their own appeal while denying their ex-spouse the means to respond. In a financial remedy landscape where inequality of arms is a real concern, the conditional appeal offers a dramatic, but justified, judicial solution.

Published by James Thornton in Blog
Tags: ahmad v faraj, appeal, appeals, case law, hadkinson, hadkinson orders, lspo
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15 April 2025

When Is a Deal a Deal? Understanding Xydhias Agreements in Financial Remedy Cases

In the emotionally charged landscape of divorce litigation, reaching an agreement on finances can feel like the light at the end of the tunnel. But what happens when one party tries to walk away from a deal before it becomes a court order? This is where the concept of a Xydhias agreement comes into sharp focus.

What Is a Xydhias Agreement?

A Xydhias agreement arises when divorcing parties agree financial terms—often after full disclosure and negotiation—but before the court has approved a final consent order. The term comes from the leading case Xydhias v Xydhias [1999] 2 All ER 386, [1999] 1 FCR 289, [1998] EWCA Civ 1966, [1999] Fam Law 301, [1999] 1 FLR 683, in which the Court of Appeal held that a party cannot unilaterally withdraw from an agreement that was clearly intended to be binding and where all material terms were settled.

However, such agreements are not contracts in the traditional civil sense. They are still subject to court scrutiny under section 25 of the Matrimonial Causes Act 1973, and a judge must be satisfied that the outcome is fair.

Xydhias Agreements vs. Rose Orders

It is essential to distinguish between a Xydhias agreement and a Rose order:

  • A Xydhias agreement is informal and may be disputed, though binding in principle where consensus was clearly reached.
  • A Rose order, named after Rose v Rose [2002], arises when the court has approved the agreement, usually at an FDR, and pronounced the terms—even if the written order has not yet been perfected.

This distinction was usefully explored in Kicinski v Pardi [2021], where Lieven J reinforced that while a Xydhias agreement reflects consensus, a Rose order carries judicial weight and limits a party’s ability to resile.

Why It Matters

Many clients are surprised to learn that a signed heads of agreement or solicitor-to-solicitor correspondence may bind them to terms they didn’t expect to be final. The Family Court aims to prevent tactical withdrawal from agreements simply because of a change of heart.

To avoid confusion:

  • Always document agreements clearly.
  • Clarify whether terms are intended to be binding.
  • Explain to clients the legal implications and potential for a "show cause" application if one side later backtracks.

Procedure: The Show Cause Application

If one party attempts to resile from a concluded agreement, the other may apply for the court to determine whether the terms should be upheld. This is called a show cause application, made within the ongoing Part 9 proceedings.

Steps include:

  1. Set out the terms and evidence of the agreement (e.g. signed heads of terms).
  2. Invite the court to determine whether a binding agreement exists.
  3. Respond to any claims of duress, mistake, or non-disclosure.
  4. If the court finds a Xydhias agreement exists, it proceeds to a section 25 hearing to assess fairness.

The court retains discretion and can vary or reject terms if they would result in injustice. But where the agreement is sound, it is often upheld.

Practical Advice for Family Lawyers

  • Always advise clients that agreements may become binding, even before a sealed order.
  • Label any documents (e.g. heads of terms) with their intended legal status.
  • Consider including wording that explicitly states whether the agreement is to be treated as Xydhias-compliant or provisional.
  • Prepare for potential show cause proceedings where disputes arise.

Key Cases

Conclusion

In family law, a handshake—or more often, a signed PDF—can carry more weight than clients expect. Understanding the legal status of a financial settlement is crucial. Whether the agreement is a Xydhias one or a Rose order, practitioners must ensure clients are properly advised, and that terms are clearly recorded. Because once you’ve agreed, it may not be so easy to walk away.

Published by James Thornton in Blog
Tags: case law, rose v rose, xydhias
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14 April 2025

Posthumous Wealth and Divorce: Can a Financial Remedy Order Be Changed After Judgment?

In X v Y [2025] EWHC 727 (Fam), the Family Division of the High Court was asked to revisit a financial remedy order after a final judgment—but before the order was perfected—because of a significant change in circumstances: the death of the husband’s father, leaving a sizeable inheritance.

The decision is a rich case study in the limits of post-judgment variation, the principles of finality, and how the courts deal with the impact of newly realised wealth after a financial remedy determination. Although this wasn’t a classic Barder application (where a party dies), it touches on similar principles—namely, whether a major event shortly after judgment should allow the court to reopen and revise its decision.

Background

In December 2023, HHJ Spinks delivered a reserved judgment after a three-day final hearing. He awarded the husband 62.5% of the net proceeds of the former matrimonial home due to his significantly lower earning capacity and housing needs, less a modest adjustment.

Then, just three weeks later, the husband’s father died—leaving the husband an estimated interest worth over £1 million, held in trust. The wife made a so-called Barrell application to reopen the judgment before the order was sealed, arguing that fairness now required a more equal division.

The Legal Framework: Barrell Applications and the Finality Principle

The court reaffirmed the legal tests laid down in:

These confirm that:

  1. Courts have discretion to alter a judgment before the final order is perfected.
  2. The finality principle is important—particularly in financial remedy cases.
  3. Applications based on new evidence must meet a high threshold, including a test of due diligence.
  4. Courts must weigh these factors against the overriding objective of dealing with cases justly.

Judge Spinks was found to have correctly applied the law—especially by asking whether the new evidence justified reopening a carefully balanced judgment after a full trial.

The Appeal: Was the Inheritance Enough to Justify Reopening?

The wife argued that:

  • The husband’s inheritance substantially altered his financial needs.
  • She should not be left with a lesser share of the matrimonial home now that the husband had future security.
  • The new financial information wasn’t fully considered.

However, the court found:

  • The inheritance was uncertain, tied up in a trust and not immediately accessible.
  • The judge had already considered the likelihood of future family support.
  • A retrial would incur significant delay, cost, and stress.
  • The husband's trust interest, while valuable, did not clearly eliminate his current financial need.

Ultimately, Mr Justice Trowell upheld the original decision: finality and judicial discretion prevailed.

Key Practice Points for Family Lawyers

  1. The death of a relative is not enough on its own to reopen a financial order.
    If the person who dies is not a party to the proceedings, and their estate is held in trust or subject to delay, the impact may be too speculative.
  2. Inheritance prospects are not certainty.
    The court recognised that even a significant inheritance may not be realised in time to affect current needs.
  3. The ‘finality principle’ is weighty—especially post-judgment.
    Even before an order is sealed, courts are reluctant to unwind a carefully balanced decision unless clear injustice can be shown.
  4. Procedural fairness is key.
    The judge’s approach was upheld partly because both parties agreed the matter could be dealt with on paper, and there was no application for more time despite late-stage disclosures.
  5. Be cautious with tactical applications post-judgment.
    Clients who regret the outcome of a financial remedy hearing must show more than just a change in fortune to succeed on appeal.

Final Thoughts

X v Y is a cautionary tale: inheritance issues—especially post-trial—must be handled with extreme care. It shows how even substantial post-judgment developments may fall short of justifying a revision of the order.

For family law practitioners, the case is a reminder to:

  • Anticipate and explore inheritance issues during litigation;
  • Frame any post-judgment challenge within strict legal boundaries; and
  • Uphold the client’s expectations around finality and fairness.

If your client is considering challenging a financial remedy outcome due to a death or inheritance, make sure the evidence is strong, the timing is justified, and the proposed change truly meets the Barrell threshold.

Published by James Thornton in Blog
Tags: barder, barrell application, case law, death, inheritance, posthumous wealth, variation, x v y
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8 April 2025

Can I Use My Ex’s Financial Documents in Court? The “Imerman” Problem in Divorce Cases

It’s a scenario that comes up time and again in divorce: you’re worried your spouse isn’t being honest about money. You come across some of their bank statements or business records — maybe they were left on a shared computer or in a drawer at home. Can you use them?

The short answer is: not without great care. In family law, these are often called “Imerman documents”, after the case of Tchenguiz & Ors v Imerman (Rev 4) [2010] EWCA Civ 908, and how you handle them can make or break your case.

Self-Help Is Not Allowed

Before Imerman, some people relied on what they thought was a legal loophole — the so-called “Hildebrand rule” — to justify accessing a spouse’s documents without consent. That’s now firmly rejected.

The courts have made it clear: you can’t take the law into your own hands. Secretly copying or retaining private financial information, even if it feels “fair,” may:

  • Breach confidence and privacy rights
  • Breach data protection laws
  • Lead to sanctions or criminal liability
  • Get your lawyer removed from your case

What Should You Do Instead?

If you discover documents or information that belong to your ex or their business, you should:

  1. Do not read, copy or share them.
  2. Tell your solicitor immediately — they are under strict duties and must quarantine the material.
  3. Let the court decide — a judge may allow use of the material if it's crucial and was obtained innocently, but there's no guarantee.

Your solicitor can then:

  • Try to agree access with the other side, or
  • Ask the court for directions on what to do.

Use the Legal Tools Instead

Worried about hidden assets or half-hearted disclosure? The court process gives you tools to deal with that:

  • Form E disclosure
  • Questionnaires after the first hearing
  • Applications for specific or third-party disclosure
  • (In rare cases) freezing orders or Norwich Pharmacal orders

Let the court manage the fairness — that’s its job.

Practical Advice for Clients

“I found this on our shared laptop — can I use it?”

That depends. If the document was left open on a shared device you both use, it might be fair game — but even then, get legal advice before doing anything. The safest answer is always: pause and ask.

Don’t rely on “self-help” when it comes to financial documents. Courts don’t reward secret snooping. If you’re unsure, seal it, don’t read it, and ask your solicitor to guide the way.

Published by James Thornton in Blog
Tags: hildebrand, imerman, self help
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7 April 2025

Cohabitation or Marriage? Why the Line Matters Less Than You Think

“We were basically married already.” It’s something family lawyers hear a lot when a client describes their long-term relationship — only some years later comes the wedding, often followed (sadly) by separation. But legally, does that pre-marital cohabitation count for anything?

The Legal Question: When Does a Marriage Really Begin?

When the court is deciding how to divide assets after a divorce, one of the key factors is the duration of the marriage (under section 25(2)(d) of the Matrimonial Causes Act 1973). A longer marriage may lead to a more equal division — especially in a ‘sharing’ case — whereas a shorter one might justify ringfencing pre-acquired wealth.

So, here’s the rub: what if you lived together for years before tying the knot? Is that history wiped clean the day you say, "I do"?

The Seamless Transition Principle

Not necessarily. In a line of cases starting with GW v RW [2003], the courts have recognised that where a couple moves seamlessly from cohabitation into marriage without any major change in the way they live, it can be artificial to separate those periods.

As Mostyn J put it:

“Where a relationship moves seamlessly from cohabitation to marriage without any major alteration in the way the couple live, it is unreal and artificial to treat the periods differently.”

This approach allows the court to view the relationship as a continuous whole — particularly relevant when assessing contributions and needs.

So What Counts as Cohabitation?

It’s more than just sharing a postcode or spending a lot of time together. Later cases (like McCartney v Mills McCartney [2008] EWHC 401 (Fam), IX v IY [2018] EWHC 3053 (Fam), and VV v VV [2022] EWFC 41) have outlined what the court will look for:

  • A mutual commitment — emotionally and practically
  • Some level of financial interdependence
  • Shared lives, even if not in a traditional domestic setup
  • The parties’ intentions — did they see themselves as life partners before marriage?

Notably, simply being engaged, going on holidays, or even staying over regularly isn't enough. But if the couple were functioning as a unit — running a household, sharing finances, making life plans — that period might be considered when determining the length of the marriage.

Why It Matters

If you're divorcing after (say) two years of marriage but spent five years cohabiting beforehand, the court may take those earlier years into account — potentially shifting the outcome when it comes to dividing property or assessing needs. This is particularly relevant where one party is arguing that the marriage was short and contributions should be assessed more conservatively.

It also highlights why understanding the legal significance of how a relationship develops — before, during, and even after marriage — is so important when it comes to financial outcomes.

Published by James Thornton in Blog
Tags: cohabitation, length of marriage
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4 April 2025

Mediate or Litigate? Why the New Family Procedure Rules Shift the Balance

Since 29 April 2024, family lawyers have had a new set of procedural rules to reckon with—changes that bring mediation and other non-court dispute resolution (NCDR) methods right into the spotlight. These aren’t just gentle nudges toward ADR anymore. The new Part 3 of the Family Procedure Rules (FPR), along with its Practice Direction 3A, reframes the conversation: Why aren't you settling out of court?

What’s Changed?

Under the revised FPR 3.3(1A), the court must consider at every stage of proceedings whether NCDR is appropriate. Judges now have an express power to adjourn proceedings to encourage parties to explore NCDR, including mediation, arbitration, neutral evaluation, or collaborative law.

The accompanying Practice Direction 3A makes clear that parties (and their advisers) will be expected to explain what steps they’ve taken to explore NCDR—and why, if they haven’t, it wasn’t appropriate. This is more than lip service. It’s a cultural shift with bite.

Consequences for Non-Engagement

There are real consequences for refusing to engage in NCDR. While the court can’t compel parties to mediate, it can penalise those who unreasonably refuse to try. That might mean costs orders or even being viewed less favourably in the court’s discretion. The pressure is on to be seen to play fair—even before the first hearing.

But the most interesting, and possibly contentious, development lies in how this shift interacts with the doctrine of “without prejudice” communications.

The “Without Prejudice” Fog Lifts?

A recent article in the Financial Remedies Journal raised a fascinating and important point: if parties are now expected to explain their refusal to mediate, what happens to the cloak of “without prejudice” privilege that has traditionally surrounded settlement discussions?

In financial remedy cases, especially, parties have historically relied on “without prejudice” letters to negotiate freely. But under the new regime, a party might be asked to disclose whether mediation was proposed and why it was refused. Can that be done without crossing the line into protected communications?

The answer may be context-specific. Courts can (and do) look behind the veil of “without prejudice” in costs arguments or bad faith conduct. The Mostyn J-style pragmatism may well win out: if a party’s conduct suggests a tactical refusal to mediate, expect judicial disapproval, regardless of how the refusal was framed.

Practical Tips for Clients (and Lawyers)

Document your mediation efforts—but carefully. Offer mediation early, and in a way that you’d be happy to show a judge later if necessary. If you refuse, be ready to explain it. “It wouldn’t have worked” won’t cut it anymore.

Don’t hide behind privilege to block scrutiny. While settlement negotiations still deserve protection, expect increasing judicial appetite to pierce that veil when fairness demands it.

And for the practitioner drafting that next Without Prejudice letter? Maybe include a line that you are “open to discussing appropriate forms of non-court dispute resolution.” It won’t bind your client—but it might just save them in costs later on.

Conclusion

The court's message is clear: don’t come to court before you’ve tried to stay out of it. The new rules aren’t just procedural tweaks—they reflect a growing judicial impatience with litigation-first thinking. For family lawyers, that means shifting our strategic mindset. And for clients, it might mean spending an hour with a mediator now to save twelve months in court.

Published by James Thornton in Blog
Tags: fpr, FPR Part 3, mediation, ncdr
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24 March 2025

Mental Health and Financial Settlements in Family Law: TA v SB [2025] EWFC 61

The recent judgment in TA v SB [2025] EWFC 61 (B) offers a compelling look at how family courts balance financial settlements in cases where one spouse has significant mental health challenges. The case reinforces the principle that fairness does not always mean equality, particularly when a party's vulnerabilities affect their financial needs and earning capacity.

Case Overview: TA v SB

The central issue in TA v SB was the division of the former matrimonial home (FMH) following divorce. The wife (W), who has bipolar disorder, was awarded 57% of the FMH. The husband (H) contended for a more equal division, arguing that his contributions and needs justified a more balanced outcome.

The court ultimately found that W’s mental health condition necessitated a greater share of the asset to ensure her long-term stability. The judgment highlighted that fairness required an assessment of needs, not just a mechanical application of equal division.

The Role of Mental Health in Financial Remedies

This case underscores the court's approach to mental health in financial remedy proceedings. While White v White [2001] 1 AC 596 set the principle of non-discrimination between homemakers and breadwinners, TA v SB demonstrates that where health significantly impacts future earning potential, the court will adjust financial awards accordingly.

The Needs-Based Approach in Financial Remedy Cases

A needs-based approach is a key principle in financial remedy cases, ensuring that a financially weaker spouse, especially one with health vulnerabilities, receives sufficient provision for their future well-being. Courts will depart from an equal division where necessary to ensure financial stability, particularly when the applicant has mental health conditions or long-term medical needs.

Legal Framework for the Needs-Based Approach

While equality is often the starting point in financial settlements (White v White [2001]), courts can adjust division based on reasonable financial needs, as established in:

For applicants with health vulnerabilities, needs assessments take on additional significance.

What Courts Consider When Applying the Needs-Based Approach

In cases like TA v SB, where one party has mental health challenges, the court looks at:

  • Housing Needs – If the applicant requires stable accommodation, the court may award a larger share of the FMH or additional capital to secure appropriate housing.
  • Medical and Care Costs – Long-term medical treatment, therapy, and support services are factored into financial provision.
  • Earning Capacity & Employment Prospects – If the applicant’s condition limits future earnings, the court may award higher capital or spousal maintenance (Periodical Payments).
  • Overall Standard of Living – Courts aim to prevent undue financial hardship, ensuring a reasonable quality of life post-divorce.

How an Applicant Can Strengthen Their Needs-Based Claim

To maximise financial provision under the needs-based approach, an applicant should:

  • Provide expert medical evidence proving the impact of their condition on their ability to work and manage daily life.
  • Demonstrate specific financial needs, including medical care, therapy, and housing stability.
  • Highlight dependency on the financially stronger spouse, if applicable, and justify why equal division would be insufficient.
  • Argue for spousal maintenance, particularly if they are unable to work or their income is significantly reduced.

Comparison with V v V [2024] EWFC 380

The judgment in TA v SB makes reference to V v V [2024] EWFC 380, a case that, while noted as ‘non-recitable’ as precedent, shares striking similarities. In V v V, one spouse also suffered from a mental health condition that affected their financial independence. The court in that case recognised that maintaining a degree of financial security was essential for the vulnerable party’s well-being, leading to an outcome that favoured need over strict equality.

Both cases illustrate a broader trend in family law, where the court takes a holistic approach, prioritising the needs of the more vulnerable party. While V v V is not binding, it aligns with the principle that fairness in financial remedy cases is highly fact-sensitive.

Judicial Trends and Practical Implications for Family Lawyers

Courts have become more receptive to non-equal divisions where necessary, particularly in cases involving mental health or serious illness. Practitioners should:

  • Emphasise long-term financial security rather than short-term asset division.
  • Consider lump sum settlements where ongoing maintenance may be impractical or contested.
  • Cite recent case law, including TA v SB, to justify a departure from equality based on individual circumstances.

Key Considerations for Family Law Practitioners

  1. Needs trump Equality: Mental health considerations can tilt the balance in financial settlements, leading to outcomes that prioritise stability over a strict 50/50 split.
  2. Judicial discretion matters: The court’s approach remains flexible, emphasising fairness over rigid formulae.
  3. Precedents may be limited: While V v V was cited in TA v SB, its ‘non-recitable’ status means it cannot be relied upon as binding authority. However, it reinforces a trend in the court’s reasoning.
  4. Medical evidence is critical: Demonstrating the long-term financial impact of a mental health condition strengthens a needs-based claim.
  5. Spousal Maintenance may be justified: If earning capacity is compromised, a higher capital award or maintenance provision should be sought.

Conclusion

The judgment in TA v SB serves as an important reminder that financial remedy cases are not solely about division of assets but about ensuring just outcomes tailored to the parties’ realities. Where mental health factors into financial needs, the court remains willing to adjust settlements accordingly, demonstrating a nuanced and empathetic approach to family law disputes.

Published by James Thornton in Blog
Tags: bipolar, case law, mental health, needs, ta v sb
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