IN THE MATTER OF THE MATRIMONIAL CAUSES ACT 1973
Strand, London, WC2A 2LL
B e f o r e :
|- and -
Sally Harrison QC (instructed by BPS Family Law LLP) for the Respondent
Hearing dates: 20 December 2016
Crown Copyright ©
MR JUSTICE BAKER:
"In March 2006 I had chest pains and was admitted to hospital … severe stress was diagnosed. That month I met with B… at her invitation, taking along my financial details. I told her that it was financially hard for me to run the house and that I had accumulated credit card debts. B told me that she would speak to C about my finances and housing situation and come back to me. A couple of days later she phoned me and said that they would clear my credit card liabilities and also that they were going to buy a house for me and the children, for which I had a budget of £400,000. During further discussions, B clarified that the property would be part of the children's inheritance but would be a home for me for life or as long as I wanted to live there. There was no agreement that the applicant and her husband would regain possession once the children were older. If that was the case, then I would anticipate they would have suggested an age such as eighteen or twenty-one, but they did not. There was never any discussion of any limited timescale at all for my living there. In all our discussions it was absolutely clear that this was a home for me for life and one which the children could come back to in the event of their own future relationships ending. This lifted huge pressure from me and gave me the security for my future which I had never been able to give myself."
"Having got married, D and I decided to sort out our wills situation. Obviously, D needed to amend hers and I have never had a will.
Some friends of ours recommended a lady who does their wills. She came round and during the discussion the subject of the property came up. I explained the situation and told her the story. She said that as things stood, legally, God forbid should something happen to you and B together (i.e. die in an accident) I potentially have no security to stay inthe property.
She said that what I needed for security is a 'right to occupy'. I have attached a copy of a draft one she has sent to me for your perusal. The last section … mentions the children, this is only because I said that at the time the house was purchased I recall it being said that the house was going to be part of the children's inheritance however I could live there. I obviously don't know your plans for any of the children I only mentioned this to [the woman who had given him advice].
We also understand that it is a strange situation for D to be in and that if something happened to me she would not expect to be given the right to stay in the house albeit we are married now. We would like to think that should the situation arise she could have a grieving period whereby she can make plans and alternative housing arrangements.
If you could let me know your thoughts on the above I would be really grateful."
"We agreed to purchase a house for you and the two children to live in, when they were both still at home. At the time, one of the many options we considered was to leave the house tothe children, but we decided against this, as we knew they would need a helping hand when the time came to buy their own homes.
In the financial crash of 2008, we lost a lot of money, my business went into administration in March 2009 and a number of our investments became worthless overnight as you know, I'm retiring next year ….
In these circumstances, we will have no choice but to sell the property. We've tried to allow you and D to stay as long as possible, but in 2014 or 2015 we won't be able to afford to keep it any longer. We're already housing your and B's son and [his wife and child] and it won't be long before his sister moves out ….
We intended to discuss it with you in due course, but your email has accelerated matters.
I understand this isn't what you were looking for, but I can assure you that B and I will try to be flexible and as far as possible fitting with yours and D's future plans."
"We do have a plan.
I am sure you are aware that a move from the property for us is not just a house move, it is also a business move.
This means that the criteria for a new property are quite specific with regards to indoor and outdoor space.
We have found a property which we feel will accommodate the business and also give as living space.
This property however requires quite a lot of work to be done prior to moving.
This work will have to be done in stages over a period of time due to the cost and getting the finances together as we only have a limited budget.
Taking this into account, our best guess on a timescale to vacate the property is late 2016 / 2017."
"I think we've been very flexible. I have no income anymore, so I have to sell assets. That being said, the last thing we want to do is to fall out with you, so I'm prepared to honour your backstop date of early 2017, let's say end Feb, as long as you'll help us market the property whilst you're still in residence."
A replied (27 March 2015):
"That's great, we really appreciate your understanding and likewise would not want to fall out with you either. We will of course help with marketing the property prior to us vacating."
"If after the grant of a decree dissolving or annulling a marriage either party to that marriage remarries whether at any time before or after the commencement of this Act or forms a civil partnership, that party shall not be entitled to apply, by reference to the grant of that decree, for a financial provision order in his or her favour, or for a property adjustment order, against the other party to that marriage."
"… the court may strike out a statement of case if it appears to the court
(a) that the statement of case discloses no reasonable grounds for bringing or defending the application;
(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings …"
"As a result of the fuller argument with which this court has been presented, it is clear to me that, with respect, Jackson LJ was wrong to insinuate into the concept of abuse of process in FPR 2010, r.4.4(1)(b) an application for a financial order which has no real prospect of success. The learned Lord Justice did not (and could not) suggest that the omission from the FPR of any rule analogous to CPR 1998 r.24.2 was accidental. It was deliberate; and so it was bold for him to say that nevertheless the effect of that rule was to be discerned elsewhere in the FPR. Although the power to strike out under r.4.4(1) extends beyond applications for financial remedies, for example to petitions for divorce, no doubt it is to such applications that the rule is most relevant. The objection to a grant of summary judgment upon an application by an ex-spouse for a financial order in favour of herself is not just that its determination is discretionary but that, by virtue of s.25(1) of the 1973 Act, it is the duty of the court in determining it to have regard to all the circumstances and, in particular, to the eight matters set out in subsection (2). The determination of an application by a court which has failed to have regard to them is unlawful: Livesey (formerly Jenkins) v Jenkins  AC 424,  FLR 813, at 437 and 822 respectively, Lord Brandon of Oakbrook. The meticulous duty cast upon family courts by s.25(2) is inconsistent with any summary power to determine either that an ex-wife has no real prospect of successfully prosecuting her claim or that an ex-husband has no real prospect of successfully defending it. Indeed, were the latter conclusion to be appropriate, how should the court proceed to quantify the ex-wife's claim? For in applications for financial orders there is no such separation as exists in civil proceedings between issues of liability and those of quantum. Procedures for the court's determination of applications for financial orders, which both respect its duty under s.25(2) of the 1973 Act and yet cater for such applications as may be fit for an abbreviated hearing, are now well in place …. I suggest that FPR 2010 r.4.4(1) has to be construed without reference to real prospect of success."
"Consistently with the potentially lifelong obligations which attend a marriage, there is no time limit for seeking orders for financial provision or property adjustment for the benefit of a spouse following divorce. Sections 23(1) and 24(1) of the 1973 Act provides that such orders may be made on granting a decree of divorce 'or at any time thereafter'. Yet there is a prominent strain of public policy hostile to forensic delay. The court will look critically at explanations for it; and, even irrespective of its effect upon the respondent, will be likely, by reason of it and subject to the potency of other factors, to reduce or even to eliminate its provision for the applicant. Nevertheless, it remains important to address its effect upon the respondent. In some cases, albeit not in the present, a respondent can show that he has assumed financial obligations or otherwise arranged his financial affairs in the belief that the applicant would make no claim against him and that he has done so in a way which, even if it were possible, it would not be reasonable for him to put into reverse. Sometimes, instead, he can point to factual issues of which the dimming of memories or the disappearance of witnesses over the period of the delay no longer permits accurate determination."
(ii) The court's power to strike out an application pursuant to FPR 4.4(1) is of 'limited reach' and has to be construed without reference to 'real prospect of success', it follows that an application is not an abuse of process for the purposes of FPR r.4.4(1) simply by reason of the fact that it has no real prospect of success.
(iii) An application has 'no reasonable grounds' for the purpose of FPR r.4.4(1)(a) if it is not legally recognisable in the sense that it is incoherent or the applicant has remarried.
(iv) There is no summary judgment procedure under the Family Procedure Rules. That does not however mean that the court is constrained from exercising its case management powers to direct that to be some form of abbreviated hearing following a provisional evaluation of the issues."
"Where, however, there is nothing to justify a strike-out order other than a long delay for which the plaintiff can be held responsible, the requisite external quality of the delay necessary to justify the order ought not, in their Lordships' respectful opinion, to be reduced by categorising the delay as an abuse of process without clarity as to what it is that has transformed the delay into an abuse and, where necessary, evidential support."
The Council reiterated that Birkett v James  AC 297 remains the leading authority for the approach to be taken on an application to strike out an action for want of prosecution, namely that the power should only be exercised where the court is satisfied:
"either (1) that the default has been intentional and contumelious e.g. disobedience to a peremptory order of the court or conduct amounting to an abuse of the court, or (2)(a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between them and a third party" (per Lord Diplock at p318).
"in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
Miss Harrison cited the observation of Lord Hope of Craighead in Porter v Magill  UKHL 67 at paragraph 109 that the reasonable time requirement in Article 6 is a separate guarantee and not to be seen simply as part of the overriding right to a fair trial, nor does it require the person concerned to show that he has been prejudiced by the delay.
"The only question is whether, having regard to all the circumstances of the case, the time taken to determine the person's rights and obligations was unreasonable."
Counsel identified a number of European cases in which the ECtHR had reiterated that the 'reasonableness' of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the complexity of the case, the conduct of the applicant and the relevant authorities and what is at stake for the applicant in the dispute: see, for example, Frydlender v France (2001) 31 EHRR 52 and Charalambous v Cyprus (Application 43151/04)  1 FLR 473.
The parties' arguments
(1) On B's case, such assets as existed at the breakdown of the marriage were shared between the parties.
(2) B fully supported both children until 2009 when they were aged twenty-three and rising twenty respectively. She had increased the level of financial support during that period.
(3) At no stage in the intervening period did A ever intimate any intention to start financial remedy proceedings or suggest that he had any claim.
(4) For a number of years, until 2006, A was in employment.
(5) In the interim, B married C who in turn provided funds to support A and the children.
(6) In 2006, B gave up work and thereafter was dependent on C for financial support.
(7) B and C provided further support to A, for example by allowing him to retain all the rental income from the property, and by paying off his credit card debt.
(8) B and C agreed to allow A and D to stay on in the property for a longer period while they made arrangements for alternative accommodation
(9) Had B known that A would make, or was intending to make, a claim for financial relief, she would not have provided the support particularised above. Her actions over the past twenty-four years are entirely consistent with the belief that he had no such claims.
(10) A has now remarried D who has a home of her own which could be used to meet their housing needs.
"Importantly since 2006 I have been living in a property registered in the name of B's and C's joint names on the basis that I understood I had a right to occupy the property for life and that that was the understanding under which it had been purchased. It is as a result of B's and C's actions in 2013 and 2015 in saying I no longer have a right occupy the property that it has been necessary for me to bring this claim."
Discussion and conclusion
"in order to sustain a case of need, at any rate if made after many years of separation, a wife must show not only that the need exists but that it has been generated by her relationship with her husband".
In the present case, A contends that his need now arises because Bhas withdrawn significant material support which she had provided for a substantial proportion of the period since their separation and, on his evidence, had promised would continue indefinitely. In effect, he asserts that the need has been generated by his relationship with B, which started during the marriage but continued for many years after it came to an end.