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Factual Background:

The case concerns the financial remedies proceedings arising out of the divorce between RM (the wife) and WP (the husband). The final hearing took place over 2 days and considered the division of matrimonial property, and to what extend real property had been ‘matrimonialised’.

RM and WP met online in 2004 and were married on 4th May 2007. The marriage produced two children, A (aged 16) is estranged from his mother (RM) and lives with his father (WP). B was born in 2010 but tragically died aged 8 in 2018. In July 2020 RM and WP’s marriage broke down and they separated, it was noted that this has been a difficult and acrimonious separation. Divorce proceedings were commenced by RM on 21st July 2022 with Decree Nisi ordered on 19th January 2023 and Decree Absolute to follow these proceedings.

An overview of property and other financial resources to which each of the parties have or is likely to have in the foreseeable future is at paragraphs 13 to 21. Most notably there are four real properties (‘1 & 2 London Apartments’, a ‘country cottage’ and a ‘property in a European country’), all of which were owned by WP prior to the parties first meeting in 2004 and remain in his sole name. WP and A reside in 2 London Apartment and RM resides in 1 London Apartment which is immediately below 2 London Apartment. It was acknowledged that this living situation had produced a very undesirable tension between the parties and may well have contributed to the difficulties in the relationship between RM and A.

Details of the financial remedies proceedings chronology are outlined at paragraph 8 and a summary of each parties’ realisable assets/debts is at paragraphs 23 to 25. This includes consideration of the income, earning capacity and the financial needs, obligations and responsibilities of each party. RM argued that her award should not be limited to her needs entitlement and claimed that all four of the properties have been family homes at various points in the course of the marriage. Therefore, they should be regarded as matrimonial property and shared equally between the parties as the ‘sharing principle’ applies. WP acknowledged that RM had a housing need that should be met by him and indicated that he was prepared to contemplate selling (or borrowing against) 1 London Apartment and the property in a European country to fund a settlement but declined to contemplate any different plan.

The Judge noted that, at each stage of proceedings, WP has sought adjournments which were refused on each occasion. It was highlighted that the facts of the case were not proved to be very complicated and that, where a slot in the court diary has been allocated, parties and lawyers should concentrate on preparation for that date and not on becoming distracted by making unmeritorious adjournment applications.

Applicable Law:

When dealing with the claim the factors set out in s.25 and s.25A Matrimonial Clauses Act 1973 should be considered. Of relevance, giving:

• consideration to the welfare while a minor of any child of the family who has not attained age of eighteen;
• regard to property and other financial resources to which each of the parties to the marriage has or is likely to have in the foreseeable future;
• regard to the income, earning capacity…which each of the parties to the marriage has or is likely to have in the foreseeable future; and
• regard to the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future.

In relation to determining matrimonial property, Lord Nicholls in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24 [9] stated “The parties’ matrimonial home, even if this was brought into the marriage at the outset by one of the parties, usually has a central place in any marriage. So it should normally be treated as matrimonial property for this purpose. As already noted, in principle the entitlement of each party to a share of the matrimonial property is the same however long or short the marriage may have been”.

The starting point of the ‘sharing principle’ is that “fairness and equality usually ride hand in hand and that matrimonial property will usually be divided equally”. The cases of White v White [2000] UKHL 54 [25], Miller v Miller; McFarlane v McFarlane [2006] UKHL 24 [16], JL v SL [2015] EWHC 360 [18] provide guidance on equal sharing of martial assets. Departure from this principle by the court is covered in Standish v Standish [2024] EWCA Civ 567 [164] whereby “the court will typically conclude that the former matrimonial home should be shared equally although this is not inevitable as shown by cases such as FB v PS” and S v AG (Financial Remedy; Lottery Prize) [2011] EWHC 2637 [9] where Mostyn J said “…even the matrimonial home is not necessarily divided equally under the sharing principle; an unequal division may be justified if unequal contributions to its acquisition can be demonstrated”.

Factual Background:

This appeal relates to a decision of a First-tier Tribunal dated 3^rd January 2024 concerning a child (S), aged 7 at the time of the decision. S has been diagnosed with autism spectrum disorder (ASD) with associated sensory processing difficulties and development coordination disorder (DCD) and also presents with symptoms of mild cerebral visual impairment (CVI). At the time of the hearing S was not attending school and was being taught from home, it is understood that this is still the case.

The hearing concerned a decision on which school S should attend. The local authority favoured School X, a maintained mainstream primary school with a special resourced provision for pupils with ASD. The parents had requested School Y, a non-maintained special school, which was known to them and to S as he had been attending enrichment sessions there one afternoon a week. It was deemed that School X and School Y were both able to meet the needs of S. However, it was considered that School Y would be “incompatible with the efficient use of resources”.

S is extremely anxious and stressed regarding mainstream school environments following severe trauma from his last mainstream placement. As a result of learning that he would be attending School X and not his preferred school, S has said that he would harm himself if forced to go. He has additionally refused to go out and has stayed in his room where he feels safe. Additionally, his diet has to be closely monitored as he refuses to eat. As a result, the parents sought permission to appeal.

The Appellants’ appeal, the permission to appeal and the parties’ submissions are summarised at paragraphs 2 to 11.

Applicable Law:

The relevant principles regarding “fresh evidence” on appeal are articulated in Ladd v Marshall [1954] EWCA Civ 1 in that “The principles to be applied are the same as those always applied when fresh evidence is sought to be introduced. In order to justify the reception of fresh evidence or a new trial, three conditions mast be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence most be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible”.

In accordance with s.19 Children and Families Act 2014 when exercising a function a local authority must have regard to the “views, wishes and feelings of the child and his or her parent, or the young person”. Similarly, the tribunal has the same responsibility as detailed in S v Worcestershire County Council (SEN) [2017] [70].

Where there is no record of the views of the child it is appropriate for a tribunal to proceed on the basis that they would be the same as those expressed by the parents West Sussex County Council v ND [2010] UKUT 349 (AAC) [33].