Monday, February 18, 2008

A Brutal Outcome

The case of E v E, reported in this month's issue of Family Law, serves as a salutary reminder of the 'remarriage trap' for practitioners. For those who are not aware of the remarriage trap, it is the rule that you cannot make an application for a financial/property settlement ("ancillary relief") after you have remarried. You must therefore ensure that the settlement is finalised, before tying the knot again.

The facts in E v E were that the wife petitioned for divorce in 2003 and the decree absolute was pronounced in September of that year. A financial settlement was agreed and in July 2005 a draft consent order was drawn up whereby the wife was to pay the husband a lump sum of £250,000. The order included the common recital that the agreement was only to be binding in the event of the court making an order in its terms. The husband remarried on the 12th August 2005. A few days later the order was filed with the court, along with the husband's Form A application for ancillary relief, for dismissal purposes. Questions then arose as to the court's jurisdiction, in the light of the remarriage trap. The husband then applied to have the draft order approved. Mr Justice Singer refused the application - the husband had fallen into the remarriage trap, and the court had no jurisdiction to approve the consent order.

As the comment to the report says, a brutal outcome, but it is not as if the trap had not been exposed before.


  1. - together with Marilyn Stowe's comments, this is a real warning about the remarriage 'elephant trap' - however I have real difficulty reconciling E v E with Thorpe LJ's decision in Tee v Tee and Hillman [1999] 2 FLR 613.

    E v E strikes me as sound law - a spouse who remarries without issuing an application (whether in the Petition, Answer or by way of Form A) loses their ability to apply for and obtain orders for financial provision and property adjustment (though, bizarrely, not pension sharing...) and is therefore left to fall back on other causes of action. However, in Tee v Tee Thorpe LJ appears to suggest that MCA remedies may still be available in those circumstances.

    In Tee v Tee the wife remarried without having issued any applications (and who ironically remarried a matrimonial lawyer who failed to advise her as to the consequences of doing so). After the court concluded that her claims were statute-barred by virtue of s.28(3), she issued TLATA proceedings (presumably being the only cause of action she felt she had left available to her). Following a lengthy final hearing and a DJ to CJ appeal the matter arrived at the Court of Appeal. The Wife argued that under TLATA principles she was entitled to the majority of the beneficial interest in the property. Thorpe LJ stated that a TLATA determination of beneficial interest was unnecessary because 'in view of the fact that one of the spouses had invoked the Matrimonial Causes Act, that was the dominant statute for the determination of their respective rights and interests.' and that the provisions of the Matrimonial Causes Act 'override other statutory provisions or rules of law'

    The judgment in Tee v Tee may have been borne out of frustration arising from the manner in which that case was (disastrously) litigated, but the implication from the judgment appears to this - the court should not entertain a TLATA application by a statute-barred spouse if the other spouse still has live AR claims. On one reading of the judgment it can be argued that it was unnecessary for the wife to rely upon trust principles to boost her claim to beyond 50% of the property because any such remedies could be as easily obtained by MCA orders (notwithstanding s.28(3)).

    If that is correct, then how does Tee v Tee sit with E v E where the wife still had live claims and the court still had jurisdiction to deal with them? Applying Tee v Tee to the facts of E v E - it is presumably arguable that the Husband can piggy-back on the wife's claims to allow the court to make provision in his favour?

  2. I cannot recall the case of Tee v Tee, and have no way of checking it as I write (it doesn't appear to be on Bailii), but I presume that in that case the husband was actually proceeding with his ancillary relief claim.

  3. The s28(3) MCA 73 statute bar was missed for 5 1/2 years in Fisher v Fisher by Bromley County Court and the Court of Appeal, see 1997 1 Current Law Yearbook 2491.

    Tee v Tee and Hillman is on Bailii as 1999 EWCA Civ 1056 or by searching for "Tee v Tee" and looking in list for "Tee v Tee and & Anor" on 22 Mar 99.

    So far as a remarried spouse jumping on the band-wagon of their unremarried spouses application, I thought that Robin v Robin 1983 4 FLR 632 said the Court had no power to hijack another party's application because of the statutory interpretation and procedural constrcution of s28(3) MCA 73.

    See statute bar also at s1(1)(b) Inheritance (Provision for Family and Dependants) Act 1975.

    See integrated protections of s6(6) and s6(8) Trusts of Land and Appointment of Trustees Act 1996 (in force 1 Jan 97) which links with s28(3) MCA 73 or otherwise with s12(2) Matrimonial and Family Proceedings Act 1984.

    See also comments in Lampley v Lampley 1999 EWCA Civ 918 on Bailii.

    Another recent case in Etherington v Etherington appears to have overlooked s28(3) MCA 73 at Southend County Court.

    s28(3) MCA 73 was also missed in Evans v Evans 1990 and Piglowski v Piglowska 1999 (Lord Hoffman), both of which are cited as excessive Legal Aid cases (but really because the Court has missed the statute bar of s28(3)).

    Also missed in Harris v Scholfield Roberts & Hill which was one of the 4 cases tied up with Hall v Simon 2000 on barristers immunity, but House of Lords said nothing about s28(3) in that case too.

    The Gleb Sugar Refining 1921 House of Lords duties of counsel and solicitors to bring legislation to the attention of the Court bearing either way, still has a long way to go.

    Laurence Bothwell
    07944 318433

  4. Many thanks for that. Not sure how I missed Tee v Tee on Bailii!


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