Waite v Waite

Permission to appeal requires a real prospect of success. In a full appeal concerning a discretionary ancillary-relief order, the appellant must show either an error of law or that the judge was plainly wrong. A decision is plainly wrong only where it falls outside the generous ambit within which reasonable judges may differ. Findings of fact and assessments under Matrimonial Causes Act 1973, section 25, are therefore rarely disturbed. The court assesses the respondent spouse’s resources, rather than aggregating those resources with the assets and income of a cohabitee. Contributions to the welfare of the family must be taken into account, but alleged matrimonial misconduct is not generally relevant to ancillary relief.

The applicant challenged an order made by His Honour Judge Hamilton in the Birmingham County Court on 22 September 2000. The order provided for sale of the former matrimonial home, distribution of the proceeds, limited maintenance, and dismissal of the parties’ claims under the Inheritance (Provision for Family and Dependants) Act 1975.

She alleged procedural unfairness, bias, errors concerning the value and disposal of a company, failure to account for her contribution and the husband’s conduct, and an excessive focus on the resources of the husband’s cohabitee. The central issue was whether there was a real prospect that the judge had erred in law or was plainly wrong in exercising his discretion.

1. Permission and appellate restraint. Permission was refused. A real prospect of success was required. On a full appeal, the applicant would have to establish an error of law or show that the discretionary decision was plainly wrong. Applying [1985] 1 WLR 647, a decision is plainly wrong only where it exceeds the generous ambit within which reasonable judges may differ.
2. Procedural complaint and findings. The refusal of an adjournment was a discretionary case-management decision which the judge was entitled to make. The trial judge had considered substantial documentary material over four days and had permitted inquiry into alleged wrongdoing concerning Swaptronics. His findings that the company had not been shown to be worth more than the transaction value, and that no later reward to the husband had been established, were findings of fact which could not be disturbed on the material before the court.
3. Ancillary relief. The judge was entitled to assess the cost of suitable alternative accommodation and the applicant’s earning capacity. Under section 25 of the Matrimonial Causes Act 1973, the relevant resources were those of the husband. The law did not permit the court simply to aggregate the assets and income of the husband and his cohabitee and divide the combined pool.
4. Other matters. The judge properly took account of the applicant’s substantial contribution to the family and the husband’s business under section 25(1)(f). Matrimonial violence was not relevant to the ancillary-relief proceedings on these facts, and the proceedings were not to be converted into a defended divorce. The claim that children possessed an enforceable patrimony was not part of English law; any relief on a parent’s death arose under the Inheritance (Provision for Family and Dependants) Act 1975.
5. The application for permission to appeal was dismissed.

• Court of Appeal (Civil Division): Permission to appeal was refused. The court upheld the approach taken below and found no arguable error of law or plainly wrong exercise of discretion.
• Birmingham County Court: His Honour Judge Hamilton made ancillary-relief orders on 22 September 2000, including sale and distribution of the former matrimonial home, limited maintenance, and dismissal of the inheritance-provision claims.