Friday, September 26, 2008

Ancillary Relief Notes

A couple of things of note for family lawyers in the Gazette this week:

Firstly, an example of the application of Crossley, in the case of S v S (2008): Fam Div. I won't go into the details of this one, but suffice to say that the court found that an agreement reached between the parties prior to the wife issuing her application for ancillary relief was a factor of such 'magnetic importance' that it should dominate the discretionary process under MCA s.25. Accordingly, the court gave directions for the husband's notice to show cause why an order should not be made in the terms of the agreement to be determined at the next hearing. Something tells me that the issuing of such notices will become more frequent...

Secondly, there is an interesting article by District Judge Tromans on the subject of 'adding back', where one party to the marriage dissipates family assets. Tromans quotes Mr Justice Bennett in Norris v Norris: "A spouse can, of course, spend his or her money as he or she chooses, but it is only fair to add back in to that spouse's assets the amount by which he or she recklessly depletes the assets and thus potentially disadvantages the other spouse within ancillary relief proceedings". However, Lord Justice Wilson in the Court of Appeal added two limiting caveats: that there had to be clear evidence of 'wanton dissipation' and, importantly, that the sum re-attributed to a party must not be treated as available for meeting that party's needs. The upshot of this, of course, is that adding back can only really result in a fair settlement where there are sufficient remaining assets.

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UPDATE: S v S is being reported as W v H [2008] EWHC 2038 (Fam).

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