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04 MAR 2013

Evidence, Practice and Procedure: Uncertain control of interim applications at PRFD

David Burrows - Practice of Family Law: Evidence and Procedure

David BurrowsAnarchy is too strong a word for it; but so far as anarchy means without rule (‘archy' comes from classical Greek arkhia meaning rule) it begins to apply. In S v M (Maintenance Pending Suit) [2012] EWHC 4109 (Fam) Coleridge J heard two appeals, in the same case, where district judges in the Principal Registry had made orders which seem to have overlooked the law (in certain important respects) and to have paid little regard to the relevant facts. Coleridge J expressed his incredulity in restrained terms. He allowed the husband's appeals and gave him part of his costs (see later), part reserved. His judgement does not state to what extent the applicant wife's lawyers and the courts attempted to comply with correct procedures (Family Procedure Rules 2010 r 9.7, Parts 20 and 18; and see Family Law [2013] May).

The husband and wife were married for just over a year and during that time had lived with the husband's parents. When they separated the wife moved to a property which the husband asserted had been bought by his father as an investment property before the parties had even met. The wife contended that the husband was the beneficial owner.

When the husband's father served a notice to quit on the wife in respect of the property she applied for maintenance pending suit, claiming that the husband's family were significantly wealthy and that the husband, who was supported by the family, should support her. The judge ordered the husband to pay the wife maintenance of £750 pcm and £2400 pcm to the wife's solicitors on account of costs.

Reliance was placed by both district judges on the fact that the husband was said to have access to substantial means from his father; but no regard was had by either formally to Thomas v Thomas [1995] 2 FLR 668, CA, or to the judgement of Mr Nicholas Mostyn QC in TL v ML, MCL and CL (Ancillary Relief: Claims against Assets of Extended Family) [2005] EWHC 2860 (Fam), [2006] 1 FLR 1263 where he stresses how much care must be taken with Thomas applications and with assumptions that family members can - or will - fund any requirement that their off-spring or relatives should pay for their spouses.

On costs the judge awarded the husband his costs on the freezing order appeal, and reserved the wife's costs on the periodical payments aspect till he knew more about the financial aspects of the case. How much encouragement to make the orders the courts below had from practitioners is not known; though so long as judges operate as was the case here practitioners may apply. There does come a point where all advocates have a duty to the court to tell them the law: like what are the grounds for a restraint of disposition order under Matrimonial Causes Act 1973 s 37(2). Was that done here? And it is impossible not to wonder if the urgency of process in this case was tinged by the lawyers' concern for payment of their costs allowance?

David Burrows is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012). Privilege is dealt with in Chapters 25 to 28, and public interest immunity and Re J in Chapter 29.  

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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