Thursday, December 04, 2008

Fallon v Fallon: A fundamental error

It makes a nice change to come across a Court of Appeal ancillary relief decision involving people of modest means. Such was the case in Fallon v Fallon [2008] CA (Civ Div), where the husband was appealing against an order that (originally) required him to transfer an endowment policy to the wife, pay her a lump sum of £75,000 and make nominal periodical payments. At the first appeal it was accepted that the case had proceeded before the district judge on a general mistake of fact, namely that W had the right to buy 25% of the equity in her secured tenancy for a payment of £63,500. Nevertheless, the judge essentially confirmed the district judge's decision, as she "was experienced and careful and had reached her decision after a long trial".

The Court of Appeal found that the judge had made a fundamental error in relying upon the district judge's quantification (rather than looking at the s.25 factors afresh), when that quantification had been based upon a general mistake of fact. Applying the s.25 factors, in particular assets, needs, ages, the length of the marriage and contributions, the Court of Appeal reduced the lump sum to £40,000 and struck out both the order relating to the endowment policy, and the maintenance order. The primary reason for so reducing the wife's award, it seems, was that most of the capital had been acquired by the husband after the marriage had ended. Unfortunately, the Gazette report does not indicate what percentages of the total assets each party received, but it appears that the husband received substantially more than 50%.

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