Foden v Foden

Permission to appeal in ancillary relief proceedings depends on whether the proposed appeal has a realistic prospect of success. Financial arrangements made on judicial separation may technically be reconsidered after divorce, but permission remains inappropriate where the original order was plainly within the discretionary range and no material change justifies reopening it. The court may consider prolonged delay, failure to comply with the earlier order, the distribution of the principal matrimonial assets, and any undertaking that removes outstanding financial claims. A long-running case may properly be dealt with robustly where further proceedings have no practical strength. An imbalance between the parties’ incomes does not, without more, establish a realistic prospect of obtaining further maintenance.

The parties married in 1974, separated in 1987 and obtained a decree of judicial separation in 1989. On 17 July 1991 District Judge White ordered the transfer of the matrimonial home to the wife on payment of £15,000 to the husband, with nominal maintenance. The wife did not pay the £15,000 or the costs ordered against her, and did not pursue her appeal against that order.

On 2 March 2000 His Honour Judge Wigmore made orders intended to achieve a complete financial separation, including bringing the maintenance order to an end. Lord Justice Thorpe refused permission on most issues but allowed the ancillary relief issue to proceed. The Court of Appeal considered whether the wife had a realistic prospect of successfully challenging the refusal of further maintenance and the treatment of the earlier financial arrangements.

1. Application refused. The wife had no realistic prospect of obtaining permission to appeal in relation to ancillary relief. The proposed challenge to the order of 17 July 1991 was hopeless because that order was plainly within the district judge’s discretion and was right when made.
2. Although the subsequent divorce meant that the financial arrangements could technically be reconsidered, the 1991 order remained the order governing the capital position. There had been no material change, apart from the maintenance issue, requiring the capital arrangements to be reopened.
3. In assessing whether a further maintenance order had realistic prospects, the court was entitled to consider the wife’s failure to pay the £15,000 required by the 1991 order, her breach of that order, the fact that she had received the major benefit of the family assets, and the parties’ respective financial positions.
4. The husband’s undertaking not to enforce the substantial sums otherwise due to him, including sums connected with the house, removed the practical basis for further financial litigation. In those circumstances, the wife’s claim to periodical payments had no realistic prospect of success.
5. The earlier points identified by Lord Justice Thorpe on an ex parte application had less force after an inter partes hearing at which the court had fuller information. The application was refused on the basis of the husband’s undertaking. Costs were to be paid by the Legal Services Commission, subject to legal aid assessment.

• Court of Appeal (Civil Division): On 22 November 2001, the court refused the wife’s application for permission to appeal concerning ancillary relief. The order of His Honour Judge Wigmore dated 2 March 2000 remained effective, subject to the husband’s undertaking not to enforce the sums due to him.
• Court of Appeal (Civil Division): Lord Justice Thorpe had previously refused permission on the other issues but allowed the ancillary relief issue to proceed.
• County court: On 2 March 2000 His Honour Judge Wigmore made orders intended to achieve a clean break, including ending the maintenance order and striking out the wife’s notice of appeal against the 1991 ancillary relief order.