Family Solicitors succeed in appeal against decision setting aside final matrimonial Order in financial remedy proceedings set aside in Nov 2013

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Duncan Lewis Family Solicitors have succeeded in an appeal against a decision setting aside final matrimonial Order in financial remedy proceedings, originally set aside in 4th Nov 2013 due the Judge not having jurisdiction to make the Final Order.

Savita Sharma Duncan Lewis Family Director & Solicitor

Savita Sharma Duncan Lewis Family Director & Solicitor

*JP v NP [2014] EWHC1101 (Fam) – High Court Appeal – an appeal from the PRFD to the High Court Family Division SD10D02707

The full judgement to the case can be accessed by clicking here.

Legal 500 recommended Family Solicitors Duncan Lewis Solicitors, successfully represented the Claimant Wife on Appeal to overturn the District Judge’s decision to allow the Respondent Husband’s application to set aside the original order concluding their financial remedy proceedings in July 2013.

Judgement handed down states that the case concerned the Applicant Wife now 56 years old and the Respondent Husband who was 58 years old.* The total assets for distribution in this case were £42,000.* At a hearing on 15th August 2011 Deputy District Judge Cornwall (deceased) conducted the final hearing in respect of the matrimonial finances. At the conclusion of which he gave judgement indicating that the “appropriate terms of resolution of the financial application would be for there to be an equal division in assets”.* He also provided for costs of all the Wife’s costs to be made against the Husband.*

Due to difficulties in locating the marriage certificate, the Decree Nisi had not been pronounced at the date of the hearing.* The Learned Deputy District Judge therefore ordered the Applicant Wife to complete her application for Decree Nisi and that upon the Decree Nisi the matter was listed for a mention.* The Applicant Wife’s difficulties in relation to the divorce petition and the pronounce of the Decree Nisi related to the fact that the “parties had been married in India and as such there was no copy of the marriage certificate”.* The Applicant Wife’s solicitors provided an undertaking to either provide the marriage certificate or appropriate evidence of marriage.* It was this evidentiary difficulty in proving the marriage that forces subsequent delay in obtaining the Decree Nisi which in turn was responsible for the difficulties faced.*

The proceedings were instigated on an urgent basis by the Applicant Wife on 14th June 2010 pursuant to Section 37 of the Matrimonial Causes Act 1997 whereby Duncan Lewis obtained an injunction to freeze the sum of £42,000.00.* This was the money the Respondent Husband had been awarded following a TOLATA claim made against her matrimonial home. When the Final Hearing for the matrimonial finances came before the Deputy District Judge on 15th August 2011, the Decree Nisi had still not been obtained.*

According to the handed down Court Judgement, there was a note of a judgement prepared by the Applicant Wife’s legal team.* Within the note, the DD Judge noted the “length of the marriage, the poor health of the parties, the absence of pensions, he found that the only asset was the proceeds of the litigation already mentioned together with separate plots of land in India was little or nothing”.*

The DDJ Cornwall concluded that there be an equal division of the assets. and went on that I would assume that the Husband has made an application for ancillary relief and will dismiss them both save the payment of the lump sum.*

According to the Judgement, due to the Husband’s conduct through the main contested financial dispute, the Judge ordered that the Husband pay the costs of the proceedings on a publicly funded basis to be assessed if not agreed.* The Learned Deputy District Judge concluded by saying that the Wife needed to obtain the Decree Nisi.*

The Deputy District Judge was careful when wording the order by prefacing his order with “AND UPON DDJ Cornwall having delivered an extemporary judgement as to the appropriate terms of the resolution of the financial applications” and ordered that the Applicant Wife to complete her application for Decree Nisi and then upon the pronouncement of the Decree Nisi the matter be listed for a mention before DDJ Cornwall if available.*

On 15th March 2012, the Applicant Wife’s Counsel sent an email to the Court attaching a draft of the financial remedy reflecting the terms of the proposed in the judgement together with a note of her judgement.* The contents of the email made it abundantly clear that Counsel was aware as the Judge had been there could be no order until after the Decree Nisi.*

Eventually, the Decree Nisi was pronounced on and draft order was sent to the Court for approval and sealing.*

Subsequently to that, the Husband’s solicitors forwarded part payment pursuant to the order of 15th August 2011 and therefore the only issue was the matter of the Wife’s costs. The solicitors asked for the bill and the Applicant Wife’s solicitors provided the same.*

On 6th February 2013, for the first time the Respondent Husband suggested that DDJ Cornwall had no jurisdiction to deal with the case the way he had and that they wish to challenge the Court’s jurisdiction in relation to making the Court Order.* On 11th May 2013 as having served the Bill of Costs on the Husband, the Applicant Wife obtained default costs certificate. The Husband then made an application setting aside the default certificate alleging that the DDJ Cornwall had no jurisdiction to make this order.* The application was granted by Master Howarth on 7th June 2013. The Respondent Husband then made an application notwithstanding his letter of February 2013 to set aside the Financial Remedy Order of 15th August 2011.*

The hearing of the Husband’s application to set aside came before DD J Crowther who set aside the order made by Deputy District Judge Cornwall made on 15th April 2011, sealed by the Court on 14th July 2012 to be set aside for want of jurisdiction. She also provided Wife leave to appeal.*

The DDJ agreed that the words “delivered a judgement” as to the appropriate terms of resolution was in fact determination was intended to be a formal determination of the parties’ claims. She held that this final determination was then a determination of the entire case and the Judge did not have jurisdiction to make any orders or judgement due to Section 23 of the Matrimonial Causes Act 1973.*

The current Appeal considered the previous case law in relation to where orders are purported to be made prior to the pronouncement of the Decree Nisi in Monks v Monks [1985] FLR 576, Board ( Board Intervening) v Checkland [1987] 2 FLR 257 and then the most recent case in relation to this matter Pounds v Pounds [1994] 1 WLR 1525.* The law as it currently stood was that a Consent Orders were only valid if some judicial act was brought to bear upon it after the date of the Decree Nisi. The Consent Order was therefore he held a nullity.*

The High Court Judge was then concerned with the law and examined the Court’s power. She noted that the key feature in the rationale behind Board was that the Court had to consider the resources at the Decree Nisi and not before as resources of the parties could materially changed between the determination and order; accordingly there was no jurisdiction to make an order which would affect in the future.*

The Respondent Husband’s case was that this was identified by the DDJ Crowther as the final determination; no such necessary consideration would have taken place at Decree Nisi. Respondent Husband’s Counsel suggested that in those circumstances the Court was bound to dismiss the appeal.*

However, the appeal Judge, Mrs Justice Eleanor King disagreed and stated that it was clear in the order made by DDJ Cornwall on 15th August 2012 that he knew that he did not have jurisdiction to make the order for the Decree Nisi because in the recital he carefully referred to the appropriate terms of the resolution of the financial application, he ordered the Wife to apply for a Decree Nisi and he ordered the matter to be listed for mention on the decree.*

Therefore, it followed that the Judge at first instance undoubtedly had in his mind the provision of Section 23 of the Matrimonial Causes Act 1973. It was submitted by the Applicant’s Wife legal team that the procedure adopted by the Judge at first instance or variations to the same, were perfectly proper and one that had been commonly used in practice. We referred to the case of McCartney v Mills McCartney [2008] EWHC 401 (Fam); [2008] 1 FLR 1508 where the High Court Judge heard the case, gave judgement all in the absence of a Decree Nisi and at the conclusion said that the Husband would be ordered to pay a lump sum to pay on or after the Decree Nisi.*

The High Court Judge disagreed with the Respondent Husband and that a determination is not necessarily synonymous to the judgement and is a word neither used in Section 23 of the MCA 1973 or the FPR 29.15.* The High Court Judge said the wording of the rule (which already held applied equally to Consent Orders and opposed applications anticipated that a judgement will either be a final determination taking effect on the moment of judgement or an indication of the outcome with a consequent to order to be drawn and made later here upon making the Decree Nisi).*

The High Court Judge stated that the wording used by the Judges were giving an indication of the outcome by way of the judgement with an order to be made at a later date pursuant to FPR 29.15, the date being granting of the Decree Nisi.*

In accordance with that indication, an order was made after and not before the Decree Nisi. It followed therefore that the Judge at first instance did not err in law having had at all times jurisdiction to hear the case, giving a judgement and provide for a consequential order to be made after the Decree Nisi.*

Therefore, the Applicant Wife’s Appeal was successful and due to the Husband’s conduct again the Judge ordered that the Husband was to pay the costs of the Appeal and for the costs of the hearing below. The Judge criticised the Respondent Husband conduct and was concerned that due to his litigation conduct “ these parties had incurred substantial costs on a jurisdiction argument had been a luxury which this family, of all family simply could not afford even if as it was indicated to me at the start of the hearing the litigation was driven entirely then by consideration of costs”.*

The Applicant Wife instructed Mrs Savita Sharma of Duncan Lewis to represent her in these Appeal proceedings which having been successful has changed the law.

About Duncan Lewis

Duncan Lewis, established in 1998, is the largest civil legal aid practice in the UK and one of the country's fastest growing firms of solicitors, serving both corporate entities and private individuals from offices across London and throughout the UK. A recommended leading law firm by Law Society Lexcel, Legal 500; Duncan Lewis employs over 500 members of staff and was the first law firm to achieve the Investors in People Gold Quality Standard Mark in 2009. Representing over 25,000 clients per year, the company has an excellent reputation in the Administrative Court, High Court and Court of Appeal in the Immigration, Public law and Family/Child Care jurisdictions.

Established areas of law are: business immigration, child care, civil liberties, clinical negligence, community care, crime and fraud, dispute resolution, debt and insolvency, employment, family and divorce, housing, asylum and immigration, litigation, mental health, personal injury, prison law, professional negligence, public law and administrative law, regulatory matters and welfare benefits.

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