FS v RS and JS: 41-year old man's financial relief applications summarily dismissed

Photo by Damir Spanic on Unsplash

When the first paragraph of a judgment, by Sir James Munby no less, reads as follows, then one's attention is firmly grabbed:

"This is a most unusual case. Indeed, so far as I am aware, and the very experienced counsel who appear before me do not dispute this, the case is unprecedented. Certainly, the researches of counsel have identified no decision directly in point. The applicant's own description is that his applications are "novel." I suspect that the initial reaction of most experienced family lawyers would be a robust disbelief that there is even arguable substance to any of it."

Two paragraphs on Sir James explains what the applicant was seeking:

"Put shortly, the applicant, who is the 41-year old son of the respondents, seeks financial relief against them: (i) pursuant to Section 27 of the Matrimonial Causes Act 1973; (ii) pursuant to Schedule 1 to the Children Act 1989; and (iii) pursuant to that branch of the recently rediscovered inherent jurisdiction which applies in relation to adults who, though not lacking capacity, are "vulnerable.""

[Stands back in robust disbelief.]

The background to the case can, as Sir James indicated, be stated quite briefly:

1. The respondents, who are said to be "very wealthy", are and have at all material times been married. They have never divorced and live together in Dubai.

2. The applicant is their son. We are told that: "He has several educational and professional qualifications: he has a first degree in Modern History; he is a qualified solicitor; he has a Masters in Taxation, for which he studied at the Institute of Advanced Legal Studies; and he is now studying for his Chartered Tax Advisory and Law School Admissions Test examinations. As against that, he has various difficulties and mental health disabilities which there is no need for me to elaborate at this stage, though their true extent is not clear; they will become highly material if the matter proceeds."

3. We are also told that: "His parents have supported him financially down the years and continue, to some extent, to do so. They have permitted him to live in a flat in central London, of which they are the registered proprietors, and in relation to which they have until recently been paying the utility bills. Of late ... the relationship between the applicant and his parents, in particular, it would appear, his father, has deteriorated and the financial support they are prepared to offer has significantly reduced." Hence the applications.

4. Though not dealt with in this judgment, the applicant also intends to pursue TOLATA proceedings in relation to the flat, his claim being that it is held by his parents on trust for him as the absolute beneficial owner.

[Takes deep breath.]

As one would expect from Sir James, his judgment is comprehensive. It is, however, my duty here to provide a summary, and, despite the length of the judgment, I believe I can reasonably do so in very short order.

As to the section 27 claim, that failed because a child may apply for relief under section 27 only where there has already been an order in the child's favour applied for by one of the parties to the marriage. More generally, there is no free-standing jurisdiction under the 1973 Act for a child to bring a claim for maintenance against a party to a subsisting marriage.

As to the Schedule 1 claim, no order can be made at a time when the parents of the applicant are living with each other in the same household (Sch 1, paragraph 2(4)).

And as to the inherent jurisdiction application, Sir James found that there was no scope for recourse to it. As Lieven J in JK v A Local Health Board stated just last year:

"The inherent jurisdiction cannot be used to simply reverse the outcome under a statutory scheme, which deals with the very situation in issue [i.e. here, the 1973 and 1989 Acts], on the basis that the court disagrees with the statutory outcome."

Accordingly (and I'm sure unsurprisingly to most experienced family lawyers), the applications were summarily dismissed.

You can read the full judgment, and I would recommend it if you have the time, here.

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