CONTENTS: Annulment - Should order have been made - Discretion Financial orders BEFORE Bankruptcy (Part I) Financial orders BEFORE Bankruptcy (Part II) Summary (Part III) Financial orders AFTER Bankruptcy Bankruptcy / matrimonial finance overview

Section 282(1): “the court may annul a bankruptcy order if at any time it appears to the court a) that on any grounds existing at the time the order was made, the order ought not to have been made” Should order have been made? Discretion Annulment

Should order have been made Commercial insolvency not balance sheet insolvency Re Coney: “it would not normally be right to annul a bankruptcy order unless at least it is shown that as at the date of the order the debtor was in fact able to pay his debts, or had some tangible and immediate prospect of being so able…” Examples: Paulin v Paulin – granted Whig v Whig – refused F v F - granted

Discretion Tactical/abuse of process e.g. Paulin Delay Effect on A and B Provision for Trustee’s costs Mekarska v Ruiz

Financial Orders Before Bankruptcy (I) Effect of discharge S.281(5): “ Discharge does not, except to such extent and on such conditions as the court may direct, release the bankrupt from any bankruptcy debt which…. (b) arises under any order made in family proceedings or under a maintenance calculation made under the CSA 1991” Hayes v Hayes (orders survive) “ desirability of ensuring that family liabilities are not avoided by a bankruptcy. ”

Financial Orders Before Bankruptcy (II) Review of transaction Property adjustment orders Hill v Haines “… unfortunate in the extreme if a court approved … or court determined property adjustment order would be liable, in practice, to be undone for up to 5 years because the husband goes bankrupt…That could even encourage such bankruptcy on the part of a disaffected husband. ” Ball v Jones

Summary (III) Transfer of Property Pension Maintenance Lump sum (McRoberts)

Financial Orders After Bankruptcy Property orders cannot be made save for residue of proceeds following discharge Lump sums can only be ordered in respect of residue Pension rights available Maintenance may be ordered but during currency of BO not binding on bankruptcy court. Income payment order may override pp

Contact Kerstin Boyd Barrister Tanfield Chambers, 2-5 Warwick Court, London, WC1R 5DJ Tel: +44 (0) Fax: +44 (0)

Matrimonial Finance Update 1 Competing needs of creditor and Wife: charging order to creditor?  Kremen v Agrest [2013] EWCA Civ 41

Matrimonial Finance Update 2 Dealing with companies  Petrodell v Prest [2013] UKSC 34

Matrimonial Finance Update 3 Beware the consequences of ill-judged MPS applications and freezing injunctions  S v M (MPS) [2013] 1 FLR

Matrimonial Finance Update 4 Guidance on freezing and search orders in financial remedy cases  UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] EWHC 1735 (Fam) ( – Mostyn J)

Matrimonial Finance Update 5 Admissibility of documents and statements obtained under compulsion  Mohan v Mohan [2013] EWCA Civ

Matrimonial Finance Update 6 Effect of “Series of lump sums” or “lump sum by instalments”  Hamilton v Hamilton [2013] EWCA Civ 13

Matrimonial Finance Update 7 Appropriate route to take when non-disclosure is alleged - EWCA or 1st instance court?  Karim v Musa [2012] EWCA Civ 1332 (24/10/2012)

Matrimonial Finance Update 8 Effect of Litigant-in-person on costs / orthodox approach to assessing costs  Ezair v Ezair [2012] EWCA Civ 893

Matrimonial Finance Update 9 Permission to appeal “real prospect of success” - guidance, and ‘equality’ in ‘needs’ case  CR v SR [2013] EWHC 1155 (Fam)

Matrimonial Finance Update 10 Guidance for dealing with trust assets  G v G (Financial Remedies: Trust Assets: Short Marriage) [2012] 2 FLR 48

Matrimonial Finance Update 11 Strike Out / Delay in bringing application after many years  Vince v Wyatt [2013] EWCA Civ 495

Matrimonial Finance Update 12 Agreement reached: materiality of non- disclosure  S v S [2013] EWHC 991 (Fam) Sir Hugh Bennett

Matrimonial Finance Update 13 Agreement reached in 1991: no order – effect of delay  T v T [2013] EWHC Fam B3 Parker J

Matrimonial Finance Update 14 Make sure you answer the questionnaire  Young v Young [2013] EWHC 34 (Fam) (16/01/2013)

Non-matrimonial property White v White [2001] 1 AC 610 Lord Nicholls: –‘In the ordinary course, this factor [inherited property] can be expected to carry little weight, if any, in a case where the claimant's financial needs cannot be met without recourse to this property': Miller / McFarlane: Lords Nicholls (par 23 – 25)/ Baroness Hale ( ) both comment Charman v Charman (No. 4) [2007] EWCA Civ 503 –Potter P: –“the principle applies to all the parties' property but, to the extent that their property is non-matrimonial, there is likely to be better reason for departure from equality”

Non-matrimonial Property (2) Then cases of Robson v Robson [2010] EWCA Civ 1171 [2011] 1 FLR 751 (useful for “dynastic wealth”) Jones v Jones [2011] EWCA Civ 41 (“springboard” & “passive growth” arguments) P v P (Inherited Property) [2004] EWHC 1364 (Fam) (Munby J) –the reluctance to realise landed property must be kept within limits. After all, there is, sentiment apart, little economic difference between a spouse's inherited wealth tied up in the long-established family company and a spouse's inherited wealth tied up in the long- held family estates

Matrimonial Finance Update 15 Pre-marital wealth, successful business: application of needs and sharing principles to capital and income claims of W  B v B (Assessment of Assets: Pre- Marital Property) [2012] EWHC 265 (Fam), [2012] 2 FLR David Salter sitting as a Deputy High Court Judge

Matrimonial Finance Update 16 Approach to Inherited Wealth in a “needs” case  Y v Y [2012] EWHC 2063 (Fam) Baron J

Matrimonial Finance Update 17 Pre-marital wealth / Add-backs / s 34 (2) MCA 1973  F v F (Financial Remedies: Pre-marital wealth) [2012] EWHC 438 (Fam) [2012] 2 FLR

Matrimonial Finance Update 18 Pre-acquired wealth / ring-fencing of pension  GS v L (Financial Remedies: Pre- acquired assets: needs) [2013] 1 FLR 300 [2011] EWHC 1759 (Fam)

Matrimonial Finance Update 19 Treatment of family inheritance and inter- generational transfer  Davies v Davies [2012] EWCA Civ /12/2012

Matrimonial Finance Update 20 Post-separation asset accrual  R v R [2012] EWHC 2390, [2013] 1 FLR 106, Macur J

Matrimonial Finance Update 21 What is the proper approach to a “limited means short-ish marriage” case?  R v R [2013] 1 FLR 120 Coleridge J

Matrimonial Finance Update 22 Remortgaging after final order – extension of term of Sp PPs permitted to pay mortgage?  Yates v Yates [2012] EWCA Civ 532,

Matrimonial Finance Update 23 In a 70:30 split needs case, is it wrong not to order a Mesher?  Tattersall v Tattersall [2013] EWCA Civ

Matrimonial Finance Update 24 ‘Sharing’ Principle and Periodical Payments Orders:  B v S (Financial Remedy: Marital Property Regime) [2012] EWHC 265 (Fam) [2012] 2 FLR 50

Matrimonial Finance Update 25 Other useful stuff  Best Practice Guidance for FDRs  Interim costs / orders for sale  The Family Court  Docklands  First Avenue House  ?

Contact Gwyn Evans Barrister Tanfield Chambers, 2-5 Warwick Court, London, WC1R 5DJ Tel: +44 (0) Fax: +44 (0) E: Kerstin Boyd Barrister Tanfield Chambers, 2-5 Warwick Court, London, WC1R 5DJ Tel: +44 (0) Fax: +44 (0)