Blog Archives - James Thornton Family Law

22 October 2025

When Divorce Crosses Borders: Financial Relief After a Foreign Divorce in TY v XA [2025] EWFC 349

When marriages span multiple countries, untangling financial obligations can become a jurisdictional labyrinth. The recent High Court judgment of TY v XA (No. 2) [2025] EWFC 349 by Mr Justice Cusworth is a compelling example of how England’s Part III Matrimonial and Family Proceedings Act 1984 powers operate when one spouse seeks financial relief after an overseas divorce — here, in Germany.

The case stands as a reminder that Part III applications are not a second bite of the cherry, but a safety net against injustice where a foreign financial settlement leaves one party inadequately provided for.

The International Background

TY and XA — an Austrian husband and French wife — married in Austria, lived across Europe, and divorced in Germany in 2019. The German court approved a notarised Separation Deed, under which the wife received maintenance for a fixed term and payment of rent, but no capital settlement. The husband, meanwhile, retained substantial wealth.

After relocating to London with the children (with permission from the German court), the wife applied in England for Part III relief, arguing that the German settlement was unfair and left her in financial hardship. Her application was supported by significant evidence of mental and physical health difficulties, limiting her earning capacity.

The Legal Challenge: What Can England Do After a Foreign Divorce?

The central legal question was whether the English court could revisit — or vary — the German Deed. Under Part III of the 1984 Act, the court can make financial orders after a foreign divorce if there is a sufficient English connection and if it is appropriate to do so, having regard to all the circumstances (Agbaje v Agbaje [2010] 1 AC 628).

However, the Maintenance Regulation (EU 4/2009) still applied to this case, meaning English courts could not review the substance of the German order (Art. 42), but could vary it if circumstances had changed (Art. 21).

Mr Justice Cusworth held that the German Deed was valid and binding under German law, but that subsequent changes in circumstance—notably the wife’s health deterioration, relocation, and ongoing needs—justified modification of the maintenance terms, not a wholesale re-opening of the settlement.

A Question of Fairness and Forum

The court drew heavily on Agbaje principles, emphasising that Part III is not a tool for forum shopping. A mere disparity between a foreign award and what would have been achieved in England is not enough. Yet where unmet needs remain, and where England has become the parties’ clear home, the court may intervene to ensure fairness.

In TY v XA, both parties and their children were now habitually resident in London, and the German court no longer had jurisdiction. Against this backdrop, Mr Justice Cusworth ordered enhanced maintenance provision for the wife and children — recognising real change in their financial and medical circumstances since 2019.

Why This Case Matters

This judgment underlines several key points for practitioners and internationally mobile families:

Part III relief is exceptional, not routine. It is a remedy for unfairness, not an opportunity to re-litigate a foreign divorce.
Foreign settlements remain binding — but not untouchable. English courts can modify maintenance where there has been a genuine change of circumstances.
Timing and motive matter. Delays in applying and perceived forum-shopping will weigh against applicants.
Evidence is everything. The wife’s success rested on clear, medical evidence demonstrating her deteriorating health and inability to earn.

Cross-Border Fairness in the Modern Family Court

TY v XA shows the delicate balance English courts strike between respecting foreign judgments and ensuring fairness for families who have since made their lives here. The decision reinforces that Part III jurisdiction is not about English generosity — it’s about English justice.

Published by James Thornton in Blog

Tags: agbaje, case law, foreign divorce, part III MFPA 1984, Part III relief

20 October 2025

When Mum Becomes an Intervenor: Third-Party Interests and the Family Home

The recent case of HX v WX [2025] EWFC 338 (B) offers a textbook example of how third-party interests—often involving family members—are determined within financial remedy proceedings. Here, District Judge Davies grappled with whether a 92-year-old mother-in-law, referred to as IX, had an equitable interest in her daughter’s former matrimonial home after funding the construction of an annexe in which she lived.

The judgment provides practical insight into how proprietary estoppel claims are treated when family finances and property mix, and it also highlights the importance of proper pleadings and evidence when third parties are joined to financial remedy cases.

The Facts: Family Ties and Financial Contributions

The former matrimonial home was jointly owned by husband (HX) and wife (WX). In 2020, IX sold her own cottage and paid around £176,000 for an annexe to be built at the property, intending to live there for life. The parties agreed she would have a “home for life,” and IX moved in the following year.

After the couple’s separation, relations deteriorated and IX claimed that, having spent over £211,000, she was entitled not just to occupy the annexe but also to a share of the property. She argued she had relied on assurances from both HX and WX, suffered detriment, and that it would be unconscionable for them to retain the benefit of her contribution without recognition of her equity.

The Law: Establishing a Third-Party Interest

The court applied the TL v ML [2005] EWHC 2860 (Fam) framework for intervenor claims within financial remedies and the familiar three-part test for proprietary estoppel:

Assurance or representation – a promise or understanding that creates an expectation of an interest;
Reliance – the claimant acts on that promise;
Detriment – the claimant suffers loss or disadvantage by doing so.

If those elements are proved, the court must fashion an equitable remedy that prevents unconscionability—though not necessarily granting the full amount spent or a proportional share.

The Outcome: An 18% Interest and a Life Interest

HX conceded during the hearing that IX had a life interest, but denied any ownership share. District Judge Davies disagreed, finding all elements of proprietary estoppel were satisfied. However, instead of awarding a pound-for-pound reimbursement, the court grounded its remedy in fairness and proportionality.

Based on evidence that IX’s contribution enhanced the home’s value by £100,000, the judge held that she was entitled to an 18% beneficial interest, alongside her right to live there for life. Following delivery of this judgment, all parties came to terms to conclude matters by consent.

Practical Lessons: The Path for Intervenors

This case is a useful reminder that when a third party—often a parent—claims an interest in a matrimonial home, the court will:

Require formal pleadings (points of claim and defence) per TL v ML;
Expect clear evidence of the alleged agreement or promise;
Focus on detrimental reliance and the equitable balance of fairness;
Avoid granting automatic reimbursement, instead fashioning a remedy that reflects the reality of the parties’ intentions and contributions.

Why It Matters

Intervenor claims are increasingly common as family wealth is shared across generations, often without formal documentation. HX v WX underscores that equity protects fairness, not generosity—and that where family contributions enhance value or create expectations, the court will step in to prevent injustice.

For practitioners, the case illustrates the need to identify and manage third-party interests early in proceedings and to ensure the evidence satisfies the strict criteria of proprietary estoppel.

Published by James Thornton in Blog

Tags: 3rd party, estoppel, intervenor, third party, third party interests, tl v ml 2006

8 October 2025

HA v EN: Another Chapter in the Xydhias Story

Financial remedy cases often settle through negotiation long before a consent order is sealed. But what happens when the parties reach “agreement in principle” yet still argue over the details? The Xydhias line of cases provides the answer—and the recent High Court decision in HA v EN [2025] EWHC 2436 (Fam) adds an important new layer.

The Background

In HA v EN, the husband and wife had reached terms that were accepted to amount to a Xydhias agreement. But all was not plain sailing. The wife’s legal costs and the mechanics of selling the family home (FMH) remained hotly contested. The FMH sale price also looked uncertain, raising the risk of a shortfall.

The court therefore had to decide:

What exactly had the parties agreed?
Could the court “fill in the gaps” on unresolved implementation issues?
Was there scope to revisit the agreement if the FMH realised less than expected?

The Xydhias Principle

The leading case of Xydhias v Xydhias [1999] established that once parties have reached a clear agreement in financial remedy proceedings, neither can simply walk away before a consent order is drawn. However, unlike in pure contract law, the agreement is not automatically enforceable: the court must still approve it as fair under section 25 of the Matrimonial Causes Act 1973.

Subsequent cases (Rose v Rose, Kicinski v Pardi) have distinguished between:

Xydhias agreements – binding in principle, but still subject to fairness and judicial approval.
Rose orders – agreements actually approved by a judge at FDR or in court, which carry even greater weight.

What’s New in HA v EN?

Deputy High Court Judge Richard Todd KC confirmed the core Xydhias approach: where the broad terms are agreed, the court can resolve peripheral disputes (like costs or sale mechanics) without unravelling the deal.

But he went further. He noted that the Matrimonial Causes Act 1973, sections 34–35, provides a statutory mechanism to vary or rescind “maintenance agreements” in certain circumstances. While rarely used, Deputy High Court Judge Richard Todd KC suggested these provisions could, in principle, allow the court to revisit a Xydhias agreement if fairness so required—for example, if the FMH sold for far less than assumed when the deal was struck.

This opens the door to a nuanced safety valve: most Xydhias agreements will hold firm, but if events make the outcome manifestly unjust, limited variation may be possible.

Why It Matters

Flexibility with certainty: HA v EN confirms that courts will give effect to Xydhias agreements, ironing out drafting and implementation issues rather than letting parties resile.
The fairness filter: As ever, the court must still test the outcome against section 25 MCA 1973.
Variation is possible: The judgment points to a rarely-discussed route (ss.34–35 MCA) to vary agreements if circumstances change dramatically.
Contractual debate continues: Deputy High Court Judge Richard Todd KC also revisited Soulsbury v Soulsbury, which recognised a contract outside the MCA context, highlighting the blurred line between contractual enforceability and family law discretion.

Final Thought

HA v EN shows the Xydhias doctrine is still evolving. For practitioners, the message is twofold: record agreements clearly, but be aware that the court retains both the power and duty to ensure fairness—and, in rare cases, to adjust agreements if unforeseen events threaten to make them unjust.

Published by James Thornton in Blog

Tags: case law, consent order, richard todd kc, rose v rose, soulsbury v soulsbury, xydhias

29 September 2025

Enforcing and Varying Financial Orders: What Collardeau v Fuchs Teaches Us

In family law, the term “final order” is sometimes misleading. The recent decision in Collardeau v Fuchs [2025] EWFC 307 shows how even a carefully crafted final financial remedy order can be revisited when enforcement problems and major breaches arise.

Background

This case is the latest in the long-running litigation between Alvina Collardeau and Michael Fuchs. Following the breakdown of their marriage, Mostyn J made a Final Order in June 2023, based heavily on the couple’s prenuptial agreement. W was granted continued occupation of the West London family home (“WLH”) until 2039, with H obliged to pay the mortgage and other household outgoings.

But H failed to comply. Mortgages went unpaid, properties were repossessed or sold off, and W faced mounting costs. In March 2025 she applied to enforce and vary the Final Order.

Enforcement – the limits of compliance

The Court heard evidence of repeated non-compliance by H. He failed to pay mortgage instalments, did not transfer properties as ordered, and even engaged in transactions designed to frustrate enforcement. Mr Justice Poole was blunt: H had been “prepared to see his children be compelled to leave their family home rather than comply with his obligations.”

Enforcement orders were therefore essential – requiring H to meet arrears, pay costs, and indemnify W in relation to certain liabilities .

Variation – section 31 MCA 1973 and the Thwaite jurisdiction

The more complex issue was whether the Final Order could be varied. Under s.31 of the Matrimonial Causes Act 1973, periodical payments orders (including those framed as undertakings) can be varied or capitalised into a lump sum. The Court applied the principles from Pearce v Pearce [2003], capitalising periodical payments using the Duxbury formula.

Separately, the Court considered the so-called Thwaite jurisdiction (Thwaite v Thwaite [1981] 2 FLR 280). Where an order is still executory (not yet fully implemented) and there has been a significant change in circumstances, the Court may vary it if it would be inequitable not to. Here, the loss of WLH through repossession and H’s persistent default amounted to just such a change .

What was ordered?

H’s undertaking to pay the mortgage until 2039 was discharged and replaced with a capitalised lump sum of £11m, reflecting what he should have paid.
Other claimed costs (such as legal fees and property expenses) were not included, as they went beyond the scope of the Final Order.
Periodical payments linked to staff and household costs were replaced with quantified orders, making enforcement simpler.

Practical lessons

Final doesn’t always mean final – Where an order remains executory, the Court can revisit it under Thwaite if compliance breaks down.
Evidence is key – W succeeded in part, but failed on some claims because she could not prove the sums were properly incurred. Even in high-value cases, documentary evidence matters.
Capitalisation as protection – Courts may prefer a lump sum to uncertain periodical payments where a payer repeatedly defaults.
Procedure is flexible – Although W’s application was technically issued under the wrong procedure, the Court cured the defect to avoid injustice.

Conclusion

Collardeau v Fuchs is a striking reminder that family law orders are living instruments. They can be enforced with teeth, but also adapted when circumstances fundamentally change. For practitioners, it reinforces the importance of distinguishing between true finality and executory obligations – and of ensuring applications are backed by clear, persuasive evidence.

Published by James Thornton in Blog

Tags: case law, Collardeau v Fuchs, enforcement, s.31 mca 1973, ultra hnw, variation

23 September 2025

Can You Marry Without Being There? Lessons from KU v BI on Overseas Marriages

When it comes to family law, questions about the validity of foreign marriages can be some of the trickiest. A recent case, KU v BI [2025] EWFC 296 (B), shows just how complex things can become when English courts are asked to recognise a marriage celebrated overseas—in this instance, in Nigeria—without either party even being present.

The Background

The parties had lived together in England since 2013 and had three children together. The wife (KU) argued that they were married in a Nigerian customary ceremony in March 2013, which entitled her to seek a divorce. The husband (BI), however, denied that any valid marriage had taken place, pointing to the fact that neither of them had even travelled to Nigeria for the alleged wedding.

Complicating matters further, BI was still married to someone else under English law at the time—something KU said she only discovered later.

The Legal Issues

The court had to grapple with whether the Nigerian ceremony amounted to a valid marriage, capable of recognition under English law. The starting point is clear:

Locus regit actum – if a marriage is valid in the place where it is celebrated, it will generally be valid everywhere else .
English courts distinguish between a valid marriage, a void marriage (where defects exist, e.g. polygamy), and a non-marriage (where what happened cannot be regarded as a marriage at all) .

An expert in Nigerian law was appointed. He explained that under Nigerian customary law there are three requirements:

Capacity to marry.
Payment of a bride price (dowry).
A marriage ceremony involving the formal handing over of the bride to the husband’s family .

The problem? The wife did not attend the ceremony in Nigeria, raising doubts about whether the “handing over” requirement was satisfied.

The Court’s Approach

Despite this, the judge noted that:

Both parties intended to be married and had lived for a decade as husband and wife.
There was video evidence of a large celebration with both families, dowry payments, and references to the parties as “in-laws.”
It would be unreasonable to conclude there was no marriage at all simply because KU was not physically present in Nigeria.

The court therefore held that the marriage was valid in Nigeria, and thus recognised in England. KU could proceed with her divorce petition.

Why This Matters: The RI v NG Comparison

The contrast with RI v NG [2025] EWFC 9 (B) is striking. In that case, an unmarried couple disputed ownership of jewellery, leading the court to dust off the Married Women’s Property Act 1882 to decide who owned what. There, because no marriage existed, the court could only resolve property rights—not wider financial claims.

Together, these cases highlight the crucial threshold question: are the parties married in law?

If yes (KU v BI), the full financial remedies jurisdiction under the Matrimonial Causes Act 1973 applies.
If no (RI v NG), parties are limited to property law routes like MWPA 1882 or TOLATA.

Key Pointers for Practitioners

Always check local law: The validity of an overseas ceremony depends on compliance with the law where it was celebrated.
Void vs. non-marriage matters: A void marriage still opens the door to financial claims; a non-marriage does not.
Evidence of intention and recognition helps: Community acceptance and family testimony can be crucial in customary marriages.
Early advice is key: Couples who assume they are married abroad may later discover otherwise—potentially limiting their rights.

Wider Principles

KU v BI illustrates several important points:

Foreign marriages are judged by the law of the place of celebration. English courts won’t impose their own requirements, but they will apply English remedies (e.g. nullity or divorce) if the marriage is recognised.
The line between a void marriage and a non-marriage matters. A void marriage still allows financial claims; a non-marriage does not.
Evidence of intention and community recognition can carry weight, particularly in customary systems where formal documentation may be lacking.
Complications arise where one party is already married. Under s11 Matrimonial Causes Act 1973, a polygamous marriage can be void if entered into by someone domiciled in England —but here, the Nigerian law was treated differently.

Final Thought

KU v BI shows the family courts’ willingness to recognise genuine foreign marriages, even where the formalities look unusual by English standards. It also underlines the stark difference in outcomes depending on whether a relationship is classed as a marriage, a void marriage, or a non-marriage—a distinction neatly illustrated by comparing this decision with that in RI v NG.

Published by James Thornton in Blog

Tags: case law, nigeria, overseas marriage, validity, void marriage

18 September 2025

Child Maintenance Beyond 18

A recent High Court decision, Re H (A Child) [2025] EWHC 2361 (Fam), provides useful guidance on when child maintenance can be extended beyond the age of 18, and how this interacts with the Child Maintenance Service (CMS) regime.

The Case

The dispute arose after HHJ Oliver extended an existing child maintenance order until August 2028, covering the child’s tertiary education. The father appealed, arguing he had not been properly notified of the application to extend the order, and that the order went beyond what the law allowed.

On appeal, Ms Justice Henke dismissed his arguments. She found that:

Although the application to extend was made informally, it was clearly flagged in the mother’s skeleton argument and discussed in open court before the child turned 18.
Section 29 of the Matrimonial Causes Act 1973 allows the court to extend maintenance while a child remains in education or training.
The order to August 2028 matched the expected end of the child’s university course and was therefore justified.

The Legal Framework

In most cases, child maintenance is dealt with by the CMS, which has exclusive jurisdiction once an assessment is in place. However, the court retains limited powers:

Under s.29 Matrimonial Causes Act 1973 (and similarly under Schedule 1 of the Children Act 1989), maintenance orders can be extended beyond 18 if a child is in education or training, or where there are exceptional circumstances (e.g. disability).
The court can only step in where there is no CMS assessment in force or where specific circumstances justify an order.
Case law such as UD v DN [2021] EWCA Civ 1947 confirms that an application made before the child turns 18 can still lead to an order covering the period beyond majority.

Informal Applications – Are They Enough?

One striking feature of this case was that the mother’s application was made within her skeleton argument for an enforcement hearing, rather than by formal application notice. The father argued this was procedurally unfair. The court disagreed, holding that:

Informal applications can suffice, provided the other party is aware of them and has the chance to respond.
This echoes earlier authorities, including Tattersall v Tattersall [2018] EWCA Civ 1978, where the Court of Appeal recognised the flexibility of the family courts when dealing with variation or extension applications.

Why It Matters

For parents and practitioners, the case reinforces several points:

Child maintenance doesn’t necessarily end at 18 – support often continues while a child is at university or in vocational training.
Timing is crucial – an application made before the 18th birthday preserves the court’s jurisdiction, even if determined later.
Informality has limits – while the court allowed an application raised in a skeleton argument here, best practice remains to make a clear, formal application.

The CMS vs Court Orders

The interplay between the CMS and the court remains complex. The CMS generally has priority, but the court retains a role where:

There is already a court order in place (as here), or
The case involves education beyond 18, or
There are exceptional needs that fall outside CMS jurisdiction.

Final Thought

This case underlines the flexibility but also the discipline of the family courts: they will extend child maintenance beyond 18 where justified, but applications must be grounded in evidence and raised in time. For separated parents, it is a reminder not to assume financial responsibility ends on a child’s 18th birthday—especially where university or further training lies ahead.

Published by James Thornton in Blog

Tags: case law, child maintenance, cms, court ordered child maintenance, top up child maintenance

12 September 2025

The Long Goodbye – Matrimonial Home Disputes After Decades Apart – G v N [2025] EWFC 286

The case of G v N [2025] EWFC 286 (B) is a striking reminder of how the family courts approach the matrimonial home when it is the sole remaining asset – and how long periods of separation, combined with non-engagement, can heavily influence the outcome.

The Facts

The husband and wife had divorced many years earlier, but no financial order had ever been made. Nearly thirty years ago, the wife walked out of the former matrimonial home (FMH), leaving the husband to raise their two children and meet all the financial obligations alone.

At the time she left, the house was almost entirely mortgaged – the equity was around 10%. Over the ensuing decades, the husband paid off the mortgage, maintained the property, and supported the children without any contribution from the wife. She made no child maintenance payments, offered no financial assistance, and had no involvement in the children’s lives.

Fast forward to 2025, the husband sought a financial remedies order to transfer the FMH into his sole name, arguing that it was inequitable for the wife to retain any interest given her long absence and lack of contribution.

The Wife’s Silence

The wife was served with all the necessary documents, but she neither filed evidence nor attended the final hearing. Her only recorded contact was a last-minute phone call to say she would not attend due to ill health. She made no application to adjourn. As a result, the husband’s evidence went entirely unchallenged.

The Court’s Approach

District Judge Shackleton considered the familiar section 25 Matrimonial Causes Act 1973 factors, but noted that many were of little relevance given the unusual facts. With no dependent children and no competing financial claims, the focus was on fairness in the distribution of the only asset.

Key points:

The wife had abandoned the home and family nearly 30 years earlier.
The husband had paid 90% of the mortgage and all household outgoings since.
There was no evidence of any ongoing needs or contributions by the wife.
Conduct was not pleaded, but the court could not ignore the practical effect of the wife’s choices: the husband had borne the full financial and parental burden.

The judge concluded the wife had “no claim whatsoever” to the property. The FMH was ordered to be transferred into the husband’s sole name, with the court itself authorised to sign the TR1 transfer if the wife refused. Importantly, a clean break was imposed, ensuring finality.

Key Lessons for Practitioners

The matrimonial home is not sacrosanct – in the right circumstances, one party may be awarded the entire property, especially after long separation and sole financial responsibility.
Non-engagement is risky – silence from the wife meant her position went unheard, and the husband’s evidence was accepted unchallenged.
Time matters – three decades of unilateral responsibility weighed heavily in the husband’s favour.
Clean breaks remain a priority – courts will seize the opportunity to conclude financial ties, particularly in older cases with no dependent children.

Conclusion

G v N is unusual but illustrative. While courts often strive for fairness through division of the matrimonial home, here the facts left little room for sharing. For practitioners, it underlines the importance of advising clients that absence and non-engagement may lead to the extinguishing of claims – and that finality is always the court’s goal.

Published by James Thornton in Blog

Tags: case law, fmh, former matrimonial home, matrimonial home

4 September 2025

Intervenors in Financial Remedy Proceedings: When Parents Step In

The recent case of AA v BA [2025] EWFC 278 (B) shines a spotlight on one of the trickier corners of financial remedy litigation: what happens when third parties—often parents—claim an interest in matrimonial assets?

In this case, the husband’s parents intervened, arguing that they were the true beneficial owners of the family home, an investment property, shares, and even an ISA held in the husband’s name. They said large sums they advanced were “loans” and not gifts. The wife, by contrast, argued the payments were part of inheritance tax planning and intended as gifts, with no expectation of repayment.

The Court’s Task

District Judge Sundstrem-Brown treated the matter as a preliminary issue. The legal framework is well established:

Where a property is in the sole name of one party, an intervenor must prove a common intention constructive trust or rely on a resulting trust presumption.
Intention is key. The court will look at the evidence of what was agreed or understood, alongside the “whole course of dealing” between the parties (Stack v Dowden principles).
Bare assertions of loans are not enough—clear, consistent, and contemporaneous evidence is required.

Why the Intervenors Failed

The court found the intervenors and the husband lacked credibility. Their figures didn’t add up; witness statements were inconsistent and in part written by the husband himself; and explanations changed under cross-examination.

By contrast, the wife’s evidence—that the payments were part of inheritance tax planning—was consistent and supported by the surrounding facts. The judge concluded that the transfers were effectively gifts or “soft family loans” with no binding obligation to repay.

The intervenors’ claims were dismissed in full, with costs awarded against them.

Key Points for Practitioners

Evidence is everything: If parents claim an interest in property, they must produce proper documents—bank statements, agreements, or trust declarations. Without them, the court is unlikely to accept retrospective assertions.
Soft loans vs real loans: As seen in this case, “family loans” with no terms, no repayment schedule, and no enforcement history are very likely to be treated as gifts.
Inheritance tax planning arguments: Courts are alive to the reality that many parental contributions are motivated by tax considerations, not genuine ownership arrangements.
Intervenor credibility matters: The court took a dim view of the husband effectively drafting his father’s witness evidence. Independent, consistent testimony is essential.
Costs risk: Intervenors who fail in their claims can be ordered to pay costs—an important warning where elderly parents may be encouraged into litigation.

Final Thought

Intervenor claims are increasingly common in financial remedy cases, especially where property has been purchased with parental contributions. But AA v BA is a reminder that only well-evidenced, consistent claims will succeed. Parents hoping to protect contributions must formalise arrangements at the outset—otherwise, what starts as “helping the kids” may end as nothing more than a very expensive gift.

Published by James Thornton in Blog

Tags: common intention, family gifts, gifts, intervenors, soft loan, stack v dowden

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

Older Posts ›

When Divorce Crosses Borders: Financial Relief After a Foreign Divorce in TY v XA [2025] EWFC 349

When Mum Becomes an Intervenor: Third-Party Interests and the Family Home

Enforcing and Varying Financial Orders: What Collardeau v Fuchs Teaches Us

Can You Marry Without Being There? Lessons from KU v BI on Overseas Marriages

Child Maintenance Beyond 18

The Long Goodbye – Matrimonial Home Disputes After Decades Apart – G v N [2025] EWFC 286

Intervenors in Financial Remedy Proceedings: When Parents Step In

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

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

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