Blog Archives - Page 2 of 14 - James Thornton Family Law

14 May 2025

Tying Up Loose Ends: THR v WAT and the Realities of High-Net-Worth Divorce

In THR v WAT [2025] EWHC 1125 (Fam), His Honour Judge Hess was faced with the unenviable task of transforming a multi-million-pound Xydhias agreement into a final financial remedy order—navigating disputed terms, hidden costs, forgotten interest, and inflated child maintenance schedules. The judgment offers practitioners a rare insight into the pitfalls of rushed settlements and the court’s insistence that “a deal is a deal”—even if you think you left something out.

The Context: A Quick Settlement in a Heavyweight Case

This was a “big money” case with substantial assets on both sides. The parties had six bundles of documents and a 10-day final hearing listed, but they reached an agreement on day one—what both sides called a binding Xydhias agreement. The problem? Not everything was spelled out clearly.

Over the next few days, the drafting revealed five points of contention:

Whether a company loan should reduce the wife's lump sum.
Whether estimated legal fees should be adjusted post-settlement.
Whether the lump sums should attract interest.
Whether the wife should receive additional security.
What level of child periodical payments (CMS top-up) the husband should pay.

Xydhias Means Finality, Not Flexibility

The husband had agreed to pay the wife £36 million, less “what she already had”—a sum which his own documents put at £2.09 million. But he later argued this was a mistake, particularly because it didn’t reflect the (supposed) value of the wife’s interest in a company called X Ltd or her reduced legal fees.

The court disagreed.

Judge Hess reminded both parties that once they reached a Xydhias agreement, the court’s role was not to re-write the deal unless there had been fraud or clear mistake. The husband, having made a firm offer based on £2.09 million, was held to it. His Honour was clear:

“There was time to raise this if it was important... a deal is a deal.”

No Interest Means... No Interest

The wife’s team attempted to insert a clause for interest on the deferred lump sums—months after the deal was struck. Judge Hess ruled this was an afterthought, not part of the agreed terms. Despite being asked to add 3.75% interest on unpaid instalments, he refused:

“If the wife’s team wanted those to be an essential part of the deal, there was plenty of time... They did not.”

Security Provisions: Reasonable, Not Total

The husband offered partial security against the lump sums, which the wife wanted increased to 100%. The judge declined, noting the husband had already paid £5 million early and was not shown to be a flight risk or unwilling to comply. The court endorsed the principle that perfect security is not always necessary where trustworthiness is evident.

Top-Up Maintenance in the HNW World

Both parties agreed the case warranted a CMS top-up order under section 8(6) of the Child Support Act 1991. But the figures were miles apart:

Wife’s position: £50,000 per child, per annum (£150,000 total).
Husband’s position: £20,000 per child, per annum (£60,000 total).

Judge Hess landed in the middle at £25,000 per child—totalling £75,000 per year—and made some trenchant comments about the inflated and unrealistic budget put forward by the wife. Among the claims: £120,000 on holidays, £6,000 for children’s computers, and £2,000 on Christmas gifts.

“We are dealing with children aged six, six, and three... the needs of children must be finite whatever the payer’s income.”

This aligns with the James v Seymour approach—where top-up maintenance is assessed from first principles (s.25 MCA 1973) rather than simply applying a cap or CMS formula.

Key Lessons for Practitioners

Don’t leave “loose ends” in a Xydhias deal—spell out issues like interest, security, and assumptions about asset values at the time of agreement.
Final means final—the court won’t revisit a deal just because one side gets buyer’s remorse.
Avoid “aspirational” budgets—top-up child maintenance claims must be grounded in actual need, even in ultra-wealthy families.
Security must be proportionate—perfect cover isn’t always required if the payer has a history of compliance.

Final Word

THR v WAT is a textbook example of the messiness that can follow an expensive, high-stakes settlement reached too quickly. For those dealing with big numbers and complex structures, it’s a reminder: if you want clarity, earn it at the drafting table—not by asking the court to fix what you forgot to ask for.

Published by James Thornton in Blog

Tags: case law, child maintenance, hnw, top up child maintenance, xydhias

13 May 2025

When Final Orders Don’t Mean Finality – Revisiting Joint Lives Maintenance GH v IH 2025 EWFC 120

The decision in GH v IH [2025] EWFC 120 (B) provides a revealing look at the long tail of family financial orders, where joint lives maintenance collides with real-life messiness: patchy compliance, unclear enforcement, varying income, and the challenge of aging parties still locked in litigation over a marriage that ended more than a decade ago.

District Judge Hatvany’s extempore judgment is a detailed and pragmatic application of section 31 of the Matrimonial Causes Act 1973, offering clarity on when variation is appropriate—and a cautionary note about maintenance orders that refuse to die quietly.

The Context: A Long Marriage, Long Orders, and Long Running Problems

The parties married in 1993 and divorced in 2012. The original financial order included joint lives maintenance of £2,000 per month, linked to RPI. But over a decade later, the wife brought enforcement proceedings claiming nearly £17,000 in unpaid RPI increases. The husband countered that he had “overpaid” by continuing to cover her private health insurance and mobile bills.

Meanwhile, both parties were approaching retirement age, the 2012 pension sharing orders hadn’t yet been implemented, and a jointly owned property was still awaiting sale. The wife lived mortgage-free; the husband remained self-employed with multiple properties and ongoing family obligations.

Notable Issues in the Judgment

Joint Lives Maintenance Under Pressure

DJ Hatvany acknowledged that the original decision to order joint lives maintenance might not reflect modern practice, particularly where no long-term disability is involved. But with the wife nearing 66, holding a blue badge, and having health challenges, the original decision to make a joint lives order wasn’t inappropriate.

However, the judge was clear that indefinite £2,000 monthly payments were no longer justified, especially given the husband’s declining income and the wife’s own unacknowledged income from a solar farm.

Credibility of Needs Claims

The wife claimed her needs were over £5,000 per month—including £900 for private health insurance—despite living alone in a mortgage-free property. The judge pegged her actual needs closer to £3,000 per month, noting that recent expenditures on kitchen renovations, new carpets, and landscaping were not indicative of hardship.

What Counts as “Payment”?

The husband’s defence to the enforcement claim was novel but accepted: while he hadn’t paid the RPI-linked uplift, he had continued to cover the wife’s private health insurance, dental plan, and phone bills. On balance, the court found these payments exceeded what was due—so the enforcement application failed.

Variation Principles and Forward Planning

From April 2025, the husband was ordered to pay £1,000 per month—not £2,000—reflecting the wife’s growing income from pensions and notional solar farm profit. But the judge expressed real concern about the lack of finality and urged the parties to consider agreeing a Duxbury-style capitalisation of the remaining maintenance obligation.

“Otherwise, I fear the door may be left open to the husband making a further variation application as he approaches retirement, or for the wife to make a further application if her circumstances change.”

Key Points for Family Law Practitioners

Maintenance variation must reflect needs and affordability. The court closely scrutinised both parties’ lifestyles and income, including under-declared income sources.
Creative compliance can be accepted. Payments made outside the strict terms of the order (e.g., health insurance) may still discharge the obligation if clearly linked and recorded.
Clean breaks are preferable. This case is a textbook example of the cost and stress of lingering maintenance obligations—especially with pensions and properties still unresolved more than a decade on.
Judicial restraint on costs. The judge pointedly asked for “no claim for costs” at the next hearing, to avoid incurring further legal expense over small differences.

Final Thought

GH v IH is a reminder that joint lives orders are often slow-burning sources of litigation, particularly when combined with unimplemented pension sharing, contested enforcement, and shifting needs as parties age. A Duxbury lump sum may not feel satisfying in the moment—but compared to another decade of claims, counterclaims, and spreadsheets—it can be a gift of finality.

Published by James Thornton in Blog

Tags: case law, enforcement, joint lives maintenance, variation

12 May 2025

Boardrooms and Breakups: What BR v BR Teaches Us About Valuing Complex Businesses in Divorce

How do you divide a £263 million fortune when over £200 million of it is tied up in private companies? In BR v BR [2025] EWFC 88, Mr Justice Peel was faced with exactly that question—offering a masterclass in handling complex business valuations in financial remedy proceedings.

This was no ordinary divorce. Over a 30-year marriage, the husband (H) built a tech empire from scratch while the wife (W) supported him and later challenged the value he ascribed to his business empire. The case turned on one key issue: how much were the businesses worth—and could the wife's team challenge the agreed Single Joint Expert (SJE) valuation?

SJE Valuations: What Are They and Why Do They Matter?

In financial remedy cases, parties often instruct a Single Joint Expert (SJE)—typically an accountant—to value business interests. This approach:

Saves time and cost by avoiding duelling experts.
Ensures impartiality and transparency.
Provides a common evidential base for the court.

In BR v BR, the SJE was instructed early on, producing a detailed (and expensive—over £1 million!) report on C Ltd, D Ltd, and E Ltd. W later attempted to undermine the findings using her own “shadow” expert. The judge was unimpressed, emphasising that:

“Expert evidence is only admissible with the court’s permission under Part 25 FPR. You cannot sneak it in via witness statements or offers.”

This serves as a critical reminder: Don’t rely on backdoor expert opinion. If you want to challenge the SJE, apply under Daniels v Walker and do it early.

Why Valuing Private Companies Is So Difficult

Justice Peel quoted Versteegh v Versteegh [2018] EWCA Civ 1050 to describe business valuations as “among the most fragile valuations which can be obtained.” And for good reason:

No obvious market exists for many private companies.
Share value depends heavily on who’s buying, and under what conditions.
Even small adjustments in projections or multipliers can swing the valuation by tens of millions.

In BR v BR, H argued for a buyout based on the SJE’s valuation. W insisted the businesses were worth significantly more—but her claim lacked evidential support. The court accepted the SJE’s figures, increasing the valuation slightly to reflect a corrected comparable sale.

Clean Break vs. Wells Sharing

W proposed a Wells v Wells sharing structure, where she'd keep shares and cash out later. The court declined:

There was a high risk of ongoing conflict between the parties.
H’s role in the businesses was irreplaceable—splitting ownership would destabilise the companies.
Wells sharing would require costly ongoing oversight, with uncertain value and high legal and commercial risk.

Justice Peel preferred a clean break, ordering H to buy out W’s interests based on the adjusted SJE values. He stressed that a clean break is both desirable and achievable, particularly where the party retaining the business can raise funds.

Key Points for Family Law Practitioners

Use SJE evidence wisely – It remains the gold standard. If you want to challenge it, seek permission early under Daniels v Walker.
Don’t smuggle expert views into witness statements or open offers – They won’t be admitted.
Wells sharing is the exception, not the rule – It should be avoided unless a clean break is clearly impracticable.
Valuation fragility doesn’t mean unreliability – Judges will accept SJE valuations unless there’s a compelling reason not to.
Commercial reality matters – The impact of share dilution, liquidity discounts, and control rights all weigh heavily on the outcome.

Final Thought

BR v BR reminds us that when divorce meets boardroom, family courts are ready—but they demand rigour, realism, and procedural discipline. If you're advising clients with complex business interests, this case should be essential reading.

Published by James Thornton in Blog

Tags: business, business assets, sje, valuations, valuing business

9 May 2025

MPS or Misstep? The Costs Trap in Maintenance Pending Suit

In DSD v MJW [2025] EWFC 119 (B), Deputy District Judge David Hodson delivers a candid—and cutting—judgment on a £500-a-month maintenance pending suit (MPS) application that cost nearly £13,000 in legal fees to argue. The case is a cautionary tale for lawyers and litigants alike: just because an interim application can be made doesn’t mean it should be.

What is Maintenance Pending Suit?

MPS is a form of interim financial support paid by one spouse to another after separation but before the final financial remedy order. It’s designed to meet genuine short-term needs and preserve fairness while financial issues are resolved. The test is reasonableness, but this case shows that reasonableness isn’t just about the recipient’s budget—it includes timing, proportionality, and commercial sense.

The Application: A £500-a-Month Dispute That Cost £13,000

In this case, the wife sought £500 per month in MPS for three months—at most £2,000 including any backdating. By the hearing date, she had incurred £8,716 in costs, and the husband had spent £4,170 responding. That’s almost £13,000 in legal fees for a claim worth, on paper, a tenth of that. The judge’s conclusion? “How can that ever be?”

Judge Hodson made clear that while MPS applications can be justified in situations of genuine need—such as pending homelessness or the sudden loss of income—this was not such a case. The wife had:

A stable income of around £38,000 from the armed services.
Subsidised housing.
Shared child arrangements (and expenses) with the husband.
Support from her parents, who were funding her litigation.

What tipped the scale, however, was the lack of urgency and the lateness of the application. The FDR had taken place four months earlier, and the final hearing was just three months away. If support had truly been needed, it should have been raised at the FDR or immediately afterwards—not two months later.

Judicial Frustration: “This Was a Bad Application”

Judge Hodson did not mince words:

“This was a bad application to make at this late stage in the case. It should not have been made.”

He went on to note that the application had not only failed the legal test, but it had:

Diverted time and resources from trial preparation.
Increased animosity between the parties.
Brought the family courts—and family lawyers—into disrepute due to the absurd costs.

Could It Have Been Avoided? Yes.

The judge suggested a practical workaround: with over £700,000 held on account, why didn’t either party propose that £2,000 be paid out to each side to tide them over until trial? That would have been quicker, cheaper, and would have avoided the hearing entirely. Instead, litigation strategy took precedence over common sense.

Key Lessons for Family Lawyers and Clients

Think twice before pursuing small MPS claims late in proceedings. If the final hearing is imminent, courts are unlikely to intervene unless there’s a pressing change in circumstances.
Proportionality matters. Costs must bear some relation to what is at stake. Spending £9,000 to pursue £2,000 isn’t litigation—it’s financial self-sabotage.
Use interim funds creatively. Withheld capital can sometimes be released by consent to avoid unnecessary interim disputes.
Don’t expect courts to rubber-stamp late-stage tactics. If the application appears to be part of a broader litigation strategy (e.g., to inflate future capitalised maintenance), expect scrutiny.

Final Thought

DSD v MJW is a sharp reminder that MPS applications must be rooted in genuine need, made in good time, and pursued with commercial realism. Interim applications are not free hits—they come with cost consequences, strategic risks, and, sometimes, judicial rebuke.

Published by James Thornton in Blog

Tags: case law, maintenance pending suit, mps, versteegh

28 April 2025

Setting Aside to Set Things Right: Lessons from AB v CD

In the financial remedy case of AB v CD & Ors [2025] EWFC 958, His Honour Judge Richard Williams provides a detailed, forensic examination of when and how a financial remedy applicant can succeed in setting aside transactions designed to defeat their claim. The judgment is a masterclass in navigating section 37 of the Matrimonial Causes Act 1973 (MCA 1973)—and a warning about the complexity of proving your case when the evidence is murky.

The Basics: What is a Section 37 Application?

Section 37 MCA 1973 allows a party to apply to set aside transactions made by their spouse if they were done with the intention of defeating a financial remedy claim.
The court must consider three key questions:

Was there a disposition?
Was it made with the intention of defeating the applicant’s claim?
Would different (or greater) financial relief have been possible without the disposition?

If a transaction took place within three years of the application, the burden shifts to the transferring party to prove they did not intend to defeat the claim.

The Facts: Family Fallout and a Share Transfer

Following their separation in 2019, CD transferred his shares in a family-run caravan park business (Guthrum Ltd) equally to his mother (EF) and brother (GH). His estranged wife (AB) alleged that the transfer was a deliberate ploy to defeat her financial claims on divorce.

Initially, CD agreed with AB’s case—but on the morning of the trial, he switched sides, supporting his mother’s claim that he had always held the shares on trust for her. The judge was unimpressed, noting deep family divisions and “shifting sands” in the parties’ evidence.

The Court’s Approach

Judge Williams meticulously applied the section 37 framework:

Disposition: The share transfers were clearly a disposition.
Intention: Despite CD’s last-minute volte-face, the judge found sufficient evidence to infer that the transfers were intended to defeat AB’s claim, particularly given the timing (shortly after separation) and surrounding circumstances.
Consequences: Crucially, even if the transferred shares had no significant value at the time (based on expert valuation), the court could still find that AB’s potential award was frustrated.

The judgment emphasised that “defeating” a claim isn’t limited to hiding valuable assets; it includes making enforcement harder or reducing the resources available for distribution.

Practical Lessons for Family Law Practitioners

Timing is Critical: Dispositions made within three years of an application automatically trigger a rebuttable presumption of wrongful intent.
Burden of Proof: The party seeking to defend the transaction must present a convincing, coherent explanation backed by evidence—shifting stories damage credibility.
Valuation Battles: Valuing family businesses is notoriously fragile. Courts prefer solid, contemporaneous documents over fallible human memory.
Parallel Litigation Risk: Efforts to game insolvency or corporate structures in parallel proceedings may unravel under scrutiny in family courts.

Final Thought

AB v CD shows that setting aside dodgy transactions is far from straightforward. Courts will apply a fact-sensitive and forensic analysis, and applicants need to present clear evidence of motive, effect, and loss. Tactical share transfers or “paper moves” shortly after separation may not be enough to defeat a determined applicant—or a sceptical judge.

In short: trying to outsmart the family court with clever asset shuffling rarely ends well.

Published by James Thornton in Blog

Tags: case law, s.37, set aside, setting aside

25 April 2025

Smoke Without Fire? When Foreign Judgments Cloud Financial Disclosure

In VTY v GDB [2025] EWFC 110 (B), Recorder Rhys Taylor faced one of the more unusual and unsettling examples of non-disclosure in recent family law decisions. At the heart of the case was not just the usual dispute over hidden assets, but the involvement of litigation in a foreign court that appeared to undermine the very basis of the English proceedings.

The result is a fascinating insight into the limits of judicial intervention when non-disclosure borders on litigation fraud but doesn't quite cross the evidential line.

The Background: "The Farm" and a Foreign Twist

During the original financial remedy proceedings, the husband (H) agreed that a valuable property—referred to as The Farm—was held on trust for him. It was included in the matrimonial asset base.

But post-settlement, H engaged in litigation in a foreign jurisdiction (Country X) that purported to challenge this very assumption. The result? A judgment from a court abroad that he attempted to use to say, effectively, “I no longer own that asset.”

The wife (W), understandably, argued this was a case of deliberate material non-disclosure—that the foreign litigation had been manipulated, or even manufactured, to create a paper trail separating H from his declared asset.

The Suspicion — But Not the Finding

Recorder Taylor was clearly sceptical. The judgment references:

Procedural irregularities in the foreign case;
The appearance that the husband may have been controlling both sides of the litigation;
An absence of proper notice to the wife;
Timing that raised eyebrows, coinciding with enforcement activity in England.

And yet, at paragraph 119, the judge declined to go all the way:

“Whilst I recognise all of the well-made points... I am not prepared to say that the judgment of a foreign court should not be recognised on the grounds that it has been obtained by fraud. There are too many imponderables at play, notwithstanding my suspicions.”

This is the core of the legal tension: the English court clearly felt the foreign proceedings were at least questionable, but it stopped short of declaring them fraudulent. In family law, suspicion is not enough. Proof remains paramount—even where red flags abound.

Why This Matters

This case illustrates a rare but increasingly relevant challenge in modern family litigation: the use (or misuse) of foreign legal systems to cloud beneficial ownership or frustrate enforcement.

What makes VTY v GDB so valuable for practitioners is that it shows the court's:

Willingness to scrutinise foreign judgments, especially where they emerge post-order;
Careful adherence to the principle that fraud must be clearly established—not merely inferred;
Recognition of the strategic use of litigation abroad, even when it stops short of formal condemnation.

Practical Pointers for Lawyers

Be alert to developments abroad. If a party engages in litigation that appears to unwind or contradict earlier disclosures, question the timing and intent.
A foreign judgment is not immune to challenge—but overturning it on fraud grounds is a high bar.
Build the evidential picture carefully. Courts will not declare fraud lightly, even if they share your suspicions.
Even if the foreign judgment stands, the English court still has wide discretion to apportion assets as between the parties, particularly in ‘needs’ cases, as it did here.

Final Thought

VTY v GDB is a masterclass in judicial restraint. The court clearly saw through the smoke but resisted declaring a fire without hard proof. For family lawyers, the message is clear: suspicion alone is not enough—but it’s often the start of a story the court is willing to hear.

Published by James Thornton in Blog

Tags: case law, foreign judgment, foreign jurisdiction, fraud, non disclosure

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

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

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

Make a C8 application early if your client wishes to keep their details private. Do not wait until disclosure becomes contentious.
Clearly outline the risk—whether safeguarding, psychological, or procedural.
If acting for the requesting party, demonstrate legitimate need, not simply curiosity or an attempt to reopen old disputes.
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

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

Take LSPOs seriously. Failure to pay can result in Hadkinson orders or strike-out consequences.
Appeals are not an escape route. Even where permission to appeal is granted, compliance with ancillary orders may be a precondition.
Use Hadkinson requests wisely. They are potent tools but must meet strict criteria: proven contempt, impact on justice, and proportionality.
Advise clients early. Especially those with resources, that non-compliance carries reputational, procedural, and financial risk.
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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