Sean Hilton, family team associate,  represented a client at the second appeal stage of a complex divorce case in the Court of Appeal.

Having received judgment at a final hearing in 2016 the client (who was at that point in person) appealed to a Circuit Judge. There was then a further appeal which was refused on paper following which Russell-Cooke were instructed to advise and represent the client at an oral hearing before Lord Justice McFarlane to seek permission to proceed to a full appeal.

The case centres on the Court’s powers to make Order’s binding a third party, the treatment of monies provided by one spouse to the other during the course of the marriage, and also the approach when utilising assets acquired pre-marriage to meet the parties on-going financial needs.

The client was also represented by Mr Phillip Blatchy of Fourteen Chambers.

Issues in dispute

The Order made by the Court required for any shortfall in a lump sum payable by the client to his ex-wife to be met from capital held in a family Trust, of which the client was a potential beneficiary. It was argued at appeal that the Court did not have the power to make an Order against a third party. It was also argued that the Court was wrong to treat the Trust as an asset available to the client when it was entirely discretionary in nature.

As a secondary issue Lord Justice McFarlane was asked to consider the approach taken by the trial Judge in assessing and accounting for monies that were provided by one spouse to the other in the course of their marriage. The client’s position was that the Judge was wrong in law to treat these monies as ‘loans’ that should be repaid to the Wife from the available assets upon divorce.

In addition the Court was asked to look at how the previous Judge had treated a pension acquired by the client before he had met his now ex-wife. At the first hearing the Court had shared the client’s pension equally on the basis that it should be treated in the same way as capital assets. It was argued that where assets acquired before the marriage were needed to provide financial support for either party they should be utilised only to the extent that the need is met, and not shared equally as a matter of course.

Judgment

Lord Justice McFarlane found that the case had a ‘real prospect of success’ and also raised ‘an important point of principle or practice’. Permission to appeal was granted on all grounds. The full appeal will be heard later in 2017 before three Court of Appeal Judges.