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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:

  1. Was there a disposition?
  2. Was it made with the intention of defeating the applicant’s claim?
  3. 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
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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
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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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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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19 March 2025

Non-Disclosure and No-Show: How Courts Respond in Financial Remedy Cases – Mahtani v Mahtani [2025] EWFC 35 (Fam)

Mahtani v Mahtani [2025] EWFC 35 (Fam) is a stark reminder of the serious consequences of non-attendance and non-disclosure in financial remedy proceedings. This case serves as yet another warning that attempting to evade scrutiny in divorce cases can lead to adverse inferences and financial penalties.

The Facts: A Husband’s Strategic Silence

In this case, the husband (H) repeatedly failed to comply with court orders for financial disclosure, refused to engage with proceedings, and ultimately did not attend the final hearing. Despite multiple opportunities to provide evidence, he remained uncooperative. The wife (W), on the other hand, had complied with her disclosure obligations and pursued a fair division of assets.

Faced with H’s blatant non-participation, the court had little choice but to proceed in his absence and determine a fair outcome based on the available evidence—most of which was provided by W.

Key Legal Issues: Non-Attendance and Non-Disclosure

  1. The Court’s Approach to Non-Disclosure
    • Non-disclosure remains one of the biggest obstacles in financial remedy cases, but courts have developed a clear approach: if a party refuses to disclose assets, the court is entitled to draw adverse inferences.
    • The judgment in Mahtani v Mahtani aligns with earlier decisions, including Moher v Moher [2019] EWCA Civ 1482, confirming that non-disclosure does not prevent the court from making findings on asset values and appropriate distribution.
    • The burden of proof lies on the party alleging non-disclosure, but once a reasonable suspicion is raised, the non-disclosing party must disprove it—a burden H did not even attempt to meet.
  2. Non-Attendance: Proceeding in Absence
    • H’s non-attendance at the final hearing was not enough to delay proceedings. The court proceeded on the basis of the evidence before it, emphasising that parties cannot derail litigation by refusing to engage.
    • This echoes the approach in BG v BA [2015] EWFC 2, where Mostyn J held that “a party cannot frustrate the process by refusing to take part.”
  3. Adverse Inferences and Asset Estimation
    • Given H’s non-disclosure and refusal to engage, the court took a robust approach, estimating his assets at the upper end of W’s valuation evidence.
    • Courts have wide discretion to infer hidden assets if a party refuses to be transparent, as seen in Sharland v Sharland [2015] UKSC 60 and Thurrock v West [2012] EWCA Civ 1435.

The Judgment: A Cautionary Tale

  • W was awarded a significant share of the known assets, along with adverse cost consequences for H’s conduct.
  • The judgment reinforces that non-compliant parties will not be rewarded for obstructive behaviour—instead, courts will take a pragmatic approach and ensure that justice is done based on available information.

Practical Takeaways for Family Lawyers

  • Non-disclosure is a high-risk strategy—courts are prepared to draw negative inferences, often resulting in a more punitive financial settlement for the non-compliant party.
  • Non-attendance will not delay judgment—a party who refuses to engage cannot expect the court to wait indefinitely.
  • Practitioners should advise clients early on the duty of full and frank disclosure—failure to comply can lead to asset assumptions that may not be favourable.
  • Courts are willing to make robust findings—a lack of disclosure does not mean an absence of judgment.

Conclusion

Mahtani v Mahtani sends a clear message: financial remedy proceedings will not be held hostage by uncooperative litigants. Those who fail to engage do so at their peril—because the court will press ahead, and the outcome is unlikely to favour the non-disclosing party.

For family lawyers, this case reinforces the importance of advising clients on compliance and disclosure obligations. Strategic silence will not win the day—transparency and cooperation remain the best path to a fair outcome.

Published by James Thornton in Blog
Tags: case law, mahtani, non attendance, non disclosure
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