Kalyan v Kalyan

In a second-tier family appeal, permission requires an important point of principle or practice, or another compelling reason, under section 55 of the Access to Justice Act 1999. The ordinary practice is to defer investigation of past behaviour from divorce proceedings to ancillary-relief proceedings. Consent to dissolution on a spouse’s petition does not, without more, prevent later conduct issues where the allegations were not defended or adjudicated. A solicitor’s explanation that the client accepted the marriage had broken down and wished to proceed to ancillary relief may preserve that position. The court should also guard against disproportionate costs where the proposed appeal raises no qualifying point.

The husband petitioned for dissolution in 1999, relying on alleged conduct by the wife. This followed the wife’s unopposed application for an order expelling him from the matrimonial home on allegations of victimisation and serious sexual abuse. The wife’s solicitor explained that she accepted the marriage had irretrievably broken down and wished to proceed with ancillary relief, partly because she could not obtain legal aid.

After decree nisi, the District Judge held that the divorce proceedings did not prevent conduct issues being raised in the ancillary-relief proceedings. Judge Ryland confirmed that decision. The renewed application concerned whether the wife was estopped from raising those issues and whether permission was available under the second-tier appeal test.

Lord Justice Thorpe dismissed the renewed application for permission to appeal.

1. Section 55 of the Access to Justice Act 1999 applied because this was a second-tier appeal. Permission required an important point of principle or practice, or another compelling reason. The application satisfied neither limb.
2. There had long been a practice, dating from the Divorce Reform Act 1969 and the Matrimonial Proceedings Act 1973, of deferring judicial investigation of past behaviour from divorce proceedings to ancillary relief. Although unnecessary investigation of conduct in ancillary-relief proceedings was discouraged, the issue could be raised where relevant.
3. The wife’s failure to defend the divorce petition did not establish acceptance of the allegations. The surrounding circumstances and the solicitor’s explanation showed that the wife consented to dissolution because she accepted the marriage had broken down and wanted to proceed to ancillary relief. The solicitor had done enough to preserve her position, including the possibility of raising victimisation.
4. The divorce and decree nisi therefore did not estop the parties from raising relevant past behaviour in the ancillary-relief proceedings. The lower courts were correct in law.
5. The court also emphasised the risk of disproportionate expenditure on further appellate proceedings given the family’s limited resources. The application was dismissed, with a public-funding assessment of the applicant’s costs.

• Court of Appeal (Civil Division): On 17 December 2001, Lord Justice Thorpe confirmed the provisional refusal of permission and dismissed the renewed application: [2001] EWCA Civ 2037.
• Willesden County Court: District Judge Cohen held that the divorce proceedings did not prevent conduct issues being raised in the ancillary-relief proceedings. Judge Ryland confirmed that decision on appeal.