case law 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

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

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

8 August 2025

Deadlines Matter: When a Missed Statement Costs You Your Voice in Court

In the fast-paced, paper-heavy world of family law litigation, deadlines are more than administrative niceties — they are the procedural backbone of fairness. The recent case of AB v CD [2025] EWFC 253 (B) is a textbook example of what happens when parties ignore court directions and then scramble for leniency.

The Issue: Too Late, Too Weak, Too Bad

This was meant to be a straightforward final hearing in financial remedy proceedings — until it wasn’t. The wife (AB) had failed to file her Section 25 witness statement by the deadline ordered by District Judge Malik. Worse, she also failed to apply for permission to rely on a late statement until the hearing had already begun.

District Judge Dodsworth had no difficulty identifying the scale of the non-compliance:

The witness statements were late.
The hearing bundle exceeded page limits without permission.
Position statements were filed far outside the permitted window.
The excuse for lateness — vague references to difficulties with previous counsel and late disclosure from the husband — was unsupported by any real evidence.

The court noted that the failure was intentional, without any good explanation, and had the effect of prejudicing the husband’s ability to respond. In short: this wasn’t just a delay — it was a breakdown of procedural fairness.

The Rules: No Statement, No Oral Evidence

Under the Family Procedure Rules 2010, specifically FPR 22.10, a party who fails to serve a witness statement by the ordered deadline cannot call that witness without the court’s permission. The rule is crystal clear. Permission must be sought — and granted — for late compliance.

Furthermore, FPR 4.5(3) makes clear that even if both parties agree to late service, that doesn’t fix it. The court’s permission is the only way forward.

Applications for relief from sanctions fall under FPR 4.6, which mirrors the well-known Denton test from civil litigation. Courts must consider:

The seriousness of the breach;
Why it occurred;
All the circumstances, including the interests of justice and the need for rules compliance.

In AB v CD, the court found the breach to be serious, the explanation weak, and the resulting prejudice significant. Unsurprisingly, the application failed.

Lessons for Practitioners and Parties Alike

This case is a reminder that:

Deadlines are not suggestions. Miss them, and you may lose the right to make your case.
Excuses must be real and supported by evidence. Vague statements in a box on Form D11 won’t cut it.
Relief from sanctions is not automatic. Judges expect discipline, especially in overburdened family courts.

As District Judge Dodsworth aptly noted, ignoring directions is “effectively a form of cheating” — echoing language from Xanthopoulos v Rakshina [2022] EWFC 30.

Final Word: Fairness Requires Compliance

The Family Court system is under immense pressure, and judicial patience for procedural laxity is wearing thin. If a party wants to be heard, they must take their procedural obligations seriously. AB v CD is a harsh but fair reminder that the cost of default can be silence.

Published by James Thornton in Blog

Tags: case law, fpr, fpr 22.10, statements

7 August 2025

When £15 Million Isn’t Enough: Valuation, Illiquidity and Tax Risk in HNW Financial Remedy Cases

In Michael v Michael (No 3) [2025] EWFC 245, His Honour Judge Hess dealt with the tangled web of asset valuation, liquidity, tax exposure, and non-matrimonial property in a case where the wife emerged with over £15 million—but still raised grounds of unfairness.

This is a case that reminds us how complexity doesn’t disappear with wealth—it just changes shape.

Illiquidity: The Risk of ‘Paper Wealth’

The wife’s complaint was rooted in the fact that the majority of her award was illiquid—tied up in company shares and private assets—while the husband retained greater accessible cash. The court acknowledged that illiquidity could pose real-world difficulties, but ultimately found that in the context of such large sums, the imbalance did not render the award unfair.

The court is unlikely to accept illiquidity as a basis to disturb an otherwise generous settlement—especially when the party has received many millions, even if not immediately spendable.

Tax Risk: Hypothetical or Real?

The wife raised concerns over latent tax liabilities associated with her share of the business assets. The court reiterated the well-established principle: speculative tax risks won’t generally reduce the award unless there is a clear and quantifiable liability.

Myerson v Myerson [2009] EWCA Civ 282 remains good law: parties must live with the ups and downs of asset valuation, especially where shares are retained as part of the agreed or ordered outcome.

Valuation of Private Companies

A significant theme in the case was the valuation of a private business—standard fare in HNW divorces. Notably, the court endorsed the single joint expert’s conclusions, and rejected the idea of a second valuation, in line with the Daniels v Walker principles. The dispute centred not just on quantum, but on the structure of how business assets were to be divided or retained.

Non-Matrimonial Assets and Contribution

A recurring argument from the husband was that certain business interests and inherited property fell outside the matrimonial pot. The judge acknowledged the concept of non-matrimonial property but found that over such a long marriage, and due to the intermingling of finances, much of the distinction had become blurred.

Overall Fairness in Ultra-HNW Settlements

The court took a wide-lens view: although the wife received just under 40% of the overall wealth, she was awarded £15.25 million in assets—a sum that exceeded her assessed needs by some distance.

This underscores the principle that “needs” are not capped at bare necessities in high-value cases, but also that sharing may still be moderated where non-matrimonial property dominates the asset base.

Conclusion

Michael v Michael is not groundbreaking, but it offers a valuable reaffirmation of core financial remedy principles:

Fairness does not demand equality in every scenario.
Illiquidity and hypothetical tax should be carefully evidenced.
The court will balance contributions, needs, and asset origin—but not at the expense of pragmatism.

A strong case to cite when clients equate perceived imbalance with unfairness—especially when the sums involved are comfortably in the eight-figure bracket.

Published by James Thornton in Blog

Tags: case law, hnw, liquidity, myerson, needs, ultra hnw, valuation

Older Posts ›

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

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

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

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