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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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13 March 2025

DF v YB [2025] EWFC 46 (B): A £1.3 Million Litigation Bill and Lessons on Efficiency, Conduct, and Transparency

At first glance, DF v YB [2025] EWFC 46 (B) appears to be a straightforward financial remedy case—a 19-year marriage, an agreed equal division of assets, and no significant conduct arguments. But beneath the surface, this case highlights several key issues for family law practitioners:

  • The staggering cost of litigation—a combined £1.3 million in legal fees.
  • The consequences of inefficient case management, particularly non-compliance with the Efficiency Statement.
  • The continued judicial push for greater transparency, with the judgment being published despite objections.
  1. The £1.3 Million Legal Bill: A Case That Should Have Settled Earlier

The headline figure? £1.3 million spent on legal fees.

  • The wife (W) spent £566,289 on the financial remedy proceedings and an additional £220,148 on private law children proceedings.
  • The husband (H) spent £378,611 on the financial remedy case and £115,703 on the children proceedings.

This raises an important question: Why did a case with no major disputes over legal principles end up costing so much?

Both parties agreed from the outset that:
The assets should be divided equally.
There was no need for a maintenance claim—it would be a clean break case.
The assets were sufficient to meet both parties’ needs.

The disagreement? How to calculate the final asset pool and who should pay whom.

  1. The Efficiency Statement Breach: Non-Compliance and the Court’s Frustration

The judgment makes clear that the parties failed to properly comply with the Efficiency Statement (11 January 2022), particularly regarding the Chronology.

  • The applicant (W) failed to produce a neutral composite Chronology in line with paragraph 21(c) of the Efficiency Statement.
  • Instead, the court was presented with two competing versions, which wasted time and resources.
  • Recorder Allen KC explicitly referenced Peel J’s warning in GA v EL [2024] that such breaches are "wholly unacceptable."

Why does this matter? Because courts are increasingly focused on efficient case management. Non-compliance with procedural rules can lead to judicial criticism, wasted costs, and delays.

  1. Conduct: When Bad Behaviour Doesn’t Affect the Award

W presented evidence that H had engaged in abusive and offensive conduct post-separation, including sending misogynistic and threatening messages.

  • H’s own barrister admitted his behaviour was “wholly unacceptable.”
  • W’s team tried to use this to frame the case, even though they never formally pleaded conduct as a factor.

But did it impact the financial award? No.

The court ruled that bad behaviour alone is not enough to adjust the financial split unless:
It is of a "highly exceptional nature" (N v J [2024] EWFC 184).
There is an identifiable financial consequence (Tsvetkov v Khayrova [2024] 1 FLR 937).

Since W could not prove a financial link, the court ignored H’s misconduct in the final asset division.

  1. Transparency: Why This Judgment Was Published Despite Objections

H objected to publication, arguing that:
There were no novel legal points in the judgment.
There was no wider public interest in the case.
The children’s privacy could be affected.

W did not oppose publication, provided that the judgment was fully anonymised.

The Court’s Decision: Publish It.

Recorder Allen KC applied the balancing test from Re S (A Child) [2005] 1 AC 593, weighing:

The public interest in open justice (ECHR Article 10).

The privacy rights of the family (ECHR Article 8).

Ultimately, the court ruled that:

  • There is a presumption in favour of publication, even where no legal precedent is set.
  • Public accountability matters in financial remedy cases, particularly where litigation conduct is an issue.
  • The judgment should be fully anonymised, but the public has a right to see how financial disputes are resolved.

This aligns with the 2024 Transparency Practice Guidance, which encourages greater publication of financial remedy judgments.

  1. Final Financial Outcome: The Court’s Decision

After lengthy disputes over asset valuation, tax liabilities, and loan repayments, the court ruled:

  • H to pay W a lump sum of £510,000 (far lower than her £780,000 claim but higher than his £60,000 offer).
  • The couple’s £13.8 million in assets to be split equally.
  • A contested loan to be subject to “Wells sharing”, meaning W would get a share only if it was repaid.
  • H’s tax liabilities were NOT deducted from the asset pool, as the court was unconvinced he would actually pay them.
  • Both parents to contribute £200,000 each to the children’s education fund.
  • Child maintenance of £7,500 per year per child, replacing a previous CMS order.

Final Thoughts: A Case Study in High-Conflict Divorce Litigation

At its core, DF v YB [2025] EWFC 46 (B) is a cautionary tale about the cost of financial disputes, inefficiency in litigation, and the limits of conduct arguments.

For family lawyers, the key lessons are:

  • Early settlement is crucial—protracted disputes over asset valuation can be ruinously expensive.
  • Procedural compliance matters—courts expect efficiency, and failure to comply can waste costs and time.
  • Conduct rarely affects financial awards—without a financial impact, even extreme behaviour may be ignored.
  • Transparency is here to stay—clients must expect their financial disputes to be public, unless they have strong reasons to argue otherwise.

With £1.3 million spent in legal fees, this case proves that even “straightforward” financial disputes can become complex, high-stakes battles. Practitioners should take note—and advise their clients accordingly.

Published by James Thornton in Blog
Tags: case law, costs, litigation conduct, litigation misconduct, transparency, wells
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10 March 2025

From Bitcoin to Football Clubs: The High-Stakes Divorce of Culligan v Culligan [2025] EWFC 1

The financial remedy case of Culligan v Culligan [2025] EWFC 1 is a textbook example of a high-net-worth divorce gone awry. With £27 million at stake, a disputed Bitcoin fortune, a women’s football club sale, and complex tax liabilities, the case raises key issues for family lawyers dealing with long marriages, illiquid assets, and corporate shareholdings.

Here’s what family law practitioners need to know about this decision and the practical lessons it offers.

The Case: A Wealthy but Messy Divorce

Diane Liza Rosemin-Culligan (the wife) and Anthony David Culligan (the husband) had a marriage spanning 40 years. While both agreed that a broadly equal division of assets was appropriate, the fight was over how that division should be structured.

The key issues before Mr Justice MacDonald included:

  1. The valuation and division of the husband’s shares in Colendi, a fintech company.
  2. Whether the wife’s consultancy agreement—paying her £750,000 a year—was actually deferred consideration for the sale of her football club.
  3. Who should bear the significant tax liabilities, including those arising from the husband's U.S. citizenship.
  4. The treatment of the Bitcoin fortune, which had been used to fund both parties’ business ventures.
  5. Allegations of litigation misconduct and non-disclosure by both parties.

Despite the eye-watering sums involved, this case illustrates familiar legal issues: the treatment of illiquid assets, the challenge of attributing hidden income, and the impact of conduct on financial remedy claims.

Key Legal Issues & Lessons for Practitioners

  1. Valuation of Illiquid Assets – The Colendi Shares

A major dispute centred around the husband’s 3.6% shareholding in Colendi, a fintech company that had recently acquired his previous business, SETL Limited.

  • The single joint expert valued the husband’s Colendi shares at £19 million.
  • However, the shares were held via a nominee company, meaning they were subject to transfer restrictions that complicated their division.
  • The court had to determine whether a direct share transfer to the wife was possible—or whether a contingent lump sum should be ordered instead.

When dealing with business assets, transfer restrictions and nominee structures can limit enforceability. Ensure early expert valuation and consider alternative forms of division (e.g., deferred lump sums).

  1. Was the Wife’s £750,000 Salary a “Disguised Asset” in the Football Club Sale?

The wife had built and sold ELSA Sports Services Limited, which owned the London City Lionesses football club. She agreed to a £6 million sale price, but:

  • She also entered into a consultancy agreement, earning her £750,000 per year for four years.
  • The husband argued that this was not genuine post-marital income but deferred consideration for the club’s sale, designed to shield the money from the divorce settlement.
  • The court found that while the consultancy payments were partly legitimate, they should be treated as part of the matrimonial assets.

Courts look beyond the surface of financial transactions—if a deal artificially defers income, it may be reclassified as an asset for division.

  1. The Tax Nightmare of the “Accidental American”

The husband was an “accidental American”—born in the U.S. but with no real ties there. However, this triggered massive U.S. tax liabilities, including:

  • Capital gains tax on Bitcoin sales.
  • Tax on U.K. property disposals.
  • A potential U.S. tax charge on any asset transfers in the divorce.

The court accepted expert evidence that the husband’s tax liabilities ranged from £1.4 million to £1.7 million. The wife sought to avoid any responsibility for these debts, arguing that she should not suffer from her husband’s citizenship status.

The court ruled that:

  • The husband must bear his own U.S. tax burden.
  • The wife should not be exposed to unpredictable foreign tax risks.

International tax exposure can drastically affect financial remedy settlements. In cases involving U.S. citizens, specialist tax advice is essential.

  1. Bitcoin Fortunes & Hidden Assets

The case revealed a Bitcoin goldmine:

  • The husband had purchased over 1,000 Bitcoin in 2012 for £10,000, which skyrocketed in value to £20 million in 2017.
  • The funds had been used throughout the marriage to finance both the husband’s fintech ventures and the wife’s football club.
  • The wife accused the husband of hiding additional cryptocurrency wallets, which he later disclosed contained £371,000 in undisclosed Bitcoin.

The court ruled that while the missing Bitcoin was not enough to justify an inference of wider concealment, the husband’s failure to disclose it earlier was litigation misconduct.

Cryptocurrency assets are notoriously difficult to track, making full disclosure essential. Consider early forensic tracing of crypto transactions.

  1. Litigation Misconduct and the Cost of Delay

Both parties accused each other of bad litigation conduct:

  • The husband was penalised for delayed disclosure of assets, including the Bitcoin wallets and Colendi shareholding structure.
  • The wife was criticised for a lack of transparency in the football club sale, failing to disclose documents until compelled by court order.

While neither party’s conduct met the high threshold for reducing their financial award under s.25(1)(g) MCA 1973, the court did impose costs penalties on the husband for disclosure failures.

Non-disclosure and litigation misconduct won’t necessarily affect the final award, but they will increase costs exposure. Ensure early compliance with disclosure obligations to avoid judicial criticism.

The Court’s Decision: A “Wells Sharing” Approach

Given the illiquid nature of the Colendi shares, the court adopted a Wells sharing approach (Wells v Wells [2002] EWCA Civ 476), ensuring that both parties shared the risks and rewards of future value fluctuations.

The final order included:
The wife retaining the £7 million former matrimonial home.
The husband keeping his Colendi shares but paying the wife 15% of any future proceeds.
A lump sum payment to equalise liquid assets.
Each party keeping their own businesses and pensions.
The husband bearing his own U.S. tax liabilities.

Final Thoughts: Key Takeaways for Family Lawyers

  1. Illiquid business assets require creative structuring – Courts are increasingly using Wells sharing to divide risky corporate holdings.
  2. Disguised income can be reclassified as a matrimonial asset – Consultancy agreements, bonuses, or deferred deals should be scrutinised.
  3. International tax liabilities can derail settlements – Clients with U.S. citizenship need specialist tax advice early.
  4. Cryptocurrency must be fully disclosed – Courts take non-disclosure of Bitcoin seriously.
  5. Litigation misconduct leads to costs penalties – Delays and strategic non-disclosure can backfire badly.

Culligan v Culligan is a case study in complex asset division—and a reminder that transparency and careful planning are key in high-net-worth divorces.

Published by James Thornton in Blog
Tags: bitcoin, case law, cryptocurrency, culligan, football clubs, litigation conduct, litigation misconduct
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20 February 2025

Maintenance Pending Suit: The Art of Holding the Financial Ring – Lessons from SM v BA [2025] EWFC 28

When ultra-high-net-worth couples divorce, the legal battles aren’t just about the final financial settlement—they’re also about how much one party should receive in the interim. The case of SM v BA [2025] EWFC 28 saw the court awarding the wife £29,750 per month in maintenance pending suit (MPS), despite the husband describing her application as “rapacious” and “full of errors.”

This case provides an important reminder of the legal test for MPS, how the courts balance fairness, needs, and the marital standard of living, and why interim awards should not be viewed as a “mini final hearing.”

What Is Maintenance Pending Suit?

Maintenance pending suit (MPS) is a temporary financial order made under section 22 of the Matrimonial Causes Act 1973. It is designed to provide one party with reasonable maintenance while divorce and financial remedy proceedings are ongoing.

MPS is often sought in cases where one party controls the wealth and the other does not have immediate access to funds. It is particularly important in high-net-worth cases where lifestyle expectations and financial commitments are significant.

The Legal Test for MPS

The law on MPS is well established. The key principles come from TL v ML & Others [2006] 1 FLR 1263, where Mostyn J (then QC) summarised the test:

  1. The sole criterion is “reasonableness”, which is synonymous with fairness.
  2. The marital standard of living is a very important factor, though this does not mean the court will simply replicate it.
  3. A specific MPS budget should be provided, which should exclude capital or long-term expenses best dealt with at the final hearing.
  4. If disclosure is inadequate, the court can make “robust assumptions” about a party’s ability to pay and err in favour of the applicant.
  5. Where a party has historically been supported by third-party wealth, the court may assume that this support will continue, at least until the final hearing.

These principles were later refined in Rattan v Kuwad [2021] 2 FLR 817, where the Court of Appeal confirmed:

  • The focus is on immediate needs—but “immediate” does not mean “emergency-only” provision.
  • The marital standard of living remains relevant but does not have to be fully replicated.
  • The approach to MPS should be flexible, reflecting the circumstances of the case.

SM v BA: A Clash Over £29,750 Per Month

The Background

  • The wife (SM) sought £43,995 per month plus the payment of various household and family costs, totalling nearly £700,000 per year.
  • The husband (BA) argued that £24,438 per month was more appropriate, claiming that the wife’s demands were exaggerated.
  • The court had previously ordered interim maintenance of £29,500 per month, but the wife now sought an increase due to alleged additional costs.

Key Issues Before the Court

  1. What level of maintenance was “reasonable” on an interim basis?
  2. Should the previous agreement of £29,500 per month be upheld or revised?
  3. Was the husband’s financial disclosure adequate?
  4. Did the wife’s claims amount to forensic exaggeration?

The Court’s Decision

  1. Maintenance Set at £29,750 Per Month

The court ordered the husband to pay £29,750 per month, only a small increase from the previous £29,500 per month.

Key factors in this decision:

  • The marital standard of living was “clearly very high,” even if both parties had slightly exaggerated or downplayed its extent.
  • The amount was close to the level already agreed between the parties, reducing the need for major revision.
  • The wife’s budget contained some forensic exaggeration, but the court did not accept the husband’s argument that her claims were excessive across the board.
  1. No Automatic Replication of Marital Lifestyle

The court rejected the idea that MPS should automatically maintain the exact same standard of living. Instead, it emphasised that the award should be fair and reasonable based on the available resources.

This reflects the principle from M v M (Maintenance Pending Suit) [2002] 2 FLR 123, where Charles J stated that the court must not simply replicate the status quo but should instead assess what is reasonable in all the circumstances.

  1. Robust Assumptions About the Husband’s Wealth

The husband argued that he could not afford more than £24,438 per month and disputed the inclusion of certain dividend income in his financial resources.

The court, however, found that:

  • The husband’s disclosure was incomplete, meaning the court was entitled to draw robust assumptions about his wealth.
  • There were “additional monies” available to the husband through family business interests, which he had not fully disclosed.
  • The husband’s past payments of £29,500 per month suggested affordability, despite his argument that it was too high.

This follows the principle from MG v GM (MPS: LSPO) [2023] 1 FLR 253, where Peel J stated that the court can make reasonable inferences when faced with incomplete disclosure.

Key Lessons for Family Law Practitioners

  1. MPS Is About Holding the Financial Ring, Not Deciding the Final Outcome
  • The purpose of MPS is to keep things stable until the final hearing.
  • Clients should be advised not to overreach, as forensic exaggeration may weaken their credibility.
  • Equally, the paying party should be cautious about downplaying their wealth, as courts can draw adverse inferences.
  1. The Marital Standard of Living Matters—But It’s Not Absolute
  • Courts will consider the lifestyle enjoyed during the marriage, but that does not mean a blank cheque.
  • Adjustments may be made based on available resources and the need for fairness.
  1. Full and Frank Disclosure Is Critical
  • If a party fails to provide clear disclosure, courts may err in favour of the applicant.
  • Hiding assets or claiming financial difficulty without clear evidence can backfire.
  1. Previous Agreements Are Persuasive
  • If parties previously agreed on a maintenance figure, it can be difficult to argue for a major change without strong justification.
  • Courts will consider whether circumstances have actually changed since the last agreement.

Final Thoughts: A Case of Careful Balance

The decision in SM v BA [2025] EWFC 28 reinforces that MPS is a temporary solution, designed to balance the needs of both parties without pre-judging the final financial settlement. The award of £29,750 per month shows that courts take a pragmatic, rather than rigid, approach—ensuring that immediate needs are met without necessarily replicating the exact marital lifestyle.

For family lawyers, this case is a reminder to carefully construct interim applications, ensuring that:

  • Budgets are realistic and well-evidenced.
  • The marital standard of living is factored in—but not overstated.
  • Clients are advised against financial posturing, as courts will scrutinise disclosure carefully.
Published by James Thornton in Blog
Tags: case law, maintenance pending suit, mps, sm v ba 2025, tl v ml 2006
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