A Lesson in the Basics

Hussain[2021] EWFC 13

Family Department trainee solicitor, Harry Clayton, considers this case where the Applicant Husband sought permission to appeal an out of time order in financial remedy proceedings.

A Notice of Appeal was filed in March 2019, the husband was appealing a decision that had been made on 24th January 2018. Unless the Judge orders otherwise an appeal of a family court decision must be filed within 21 days of the Judgement, so the husband’s appeal was massively out of time.

The Judge did not find that the husband’s reasons or explanation for the delay were satisfactory and would have dismissed the appeal but for one factor.

The Wife’s Form E described the matrimonial home as being valued at £250,000 and being subject to a mortgage of £100,000. The net value of the home therefore was valued at £150,000.

(A Form E is a detailed form that sets out the financial details of the party, including a parties individual needs and the needs of the children. Both parties have a duty to the court to provide full and frank disclosure.)

The Husband did not engage with the financial proceedings and he did not file a Form E so the wife’s assertion about the outstanding mortgage went unchallenged.

The trial Judge ordered for a clean break between the parties upon payment of a lump sum of £125,000 in favour of the wife.

To support the husband’s appeal, in May 2019 he filed his Form E which asserted that the mortgage on the property was just under £200,000. He also provided evidence that showed that this was the case four months after the trial Judge’s original decision.

In light of this, the net equity of the matrimonial home was around £50,000. The Judge was of the view that it was inconceivable that the trial Judge would have made an order which was 2 -3 times more than the equity in the property, especially as this was a single asset case.

Within the appeal proceedings, the wife stated that her figure for the mortgage being £100,000 was based on something that she had overheard a few years before. It was not based on any documents that she had seen.

The Judge stated that this case illustrates the dangers of short cuts. There was no valuation of the matrimonial home included within the Form E and no copies of the Land Registry Records. If the Land Registry Records had been obtained this would have opened the door to obtaining an accurate statement of the outstanding mortgage on the property.

The Appeal Judge was left with no choice but to grant the permission to appeal, set aside the financial order made on 24th January 2018, and make directions to try to bring the case to an early resolution. The Judge was of the view that the husband had an irrefutable claim that the matter should be looked at again.

We are able to provide advice and representation in financial proceedings. Please contact Mavis on 020 8885 7986 to discuss this further or to arrange an appointment.