Hayer v Hayer

Permission for a second appeal requires more than a reasonable prospect of success. The proposed appeal must raise an important point of principle or practice, or disclose another compelling reason for the court to hear it. A substantial and unexplained delay will ordinarily prevent an extension of time where finality is important.

In ancillary relief proceedings, contributions are not confined to money already paid. They include present and foreseeable contributions to family welfare, including homemaking and childcare. The court must assess each party’s present and foreseeable needs, obligations and responsibilities, giving first consideration to the welfare of any minor child. A purely mathematical division based on financial contributions is therefore inappropriate.

The former husband sought permission to appeal against an order made by His Honour Judge Corrie in the Oxford County Court on 10 March 2000, on appeal from an ancillary relief order made by Deputy District Judge Williams on 8 September 1999.

The underlying dispute concerned the division of equity in the former matrimonial home, together with jewellery, household equipment and a child benefit account. The Deputy District Judge directed sale of the property and awarded the wife £16,250 to meet her housing needs. On rehearing, the Circuit Judge varied the shares, awarding the husband £12,000 and the wife £12,800 plus the child benefit account.

The husband applied more than two years out of time and sought a further appeal concerning the parties’ contributions and housing needs. The central questions were whether time should be extended and whether the proposed second appeal met the statutory threshold.

1. Application dismissed. There was no sufficient reason to extend the time for appealing. Litigation must reach a conclusion on which both parties can rely, and a dissatisfied litigant must take reasonable steps to discover the available appellate remedies.
2. Under section 55(1) of the Access to Justice Act 1999, a second appeal cannot proceed merely because it may have some prospect of success. It must raise an important point of principle or practice, or there must be another compelling reason for the Court of Appeal to hear it. Although a good prospect of success might in some circumstances constitute a compelling reason, there was no such prospect here.
3. The statutory framework for ancillary relief was contained in section 25 of the Matrimonial Causes Act 1973. Contributions to the welfare of the family include financial contributions, homemaking and caring for the family, and foreseeable future contributions. The court must also consider each party’s financial needs, obligations and responsibilities, present and foreseeable.
4. Section 25(1) requires first consideration to be given to the welfare of any minor child of the family. In a short marriage producing a child, the court may properly depart from an assumption of equal sharing of accumulated matrimonial assets in favour of the person responsible for the child’s upbringing. The husband’s proposed calculation, based principally on the parties’ direct financial contributions, could not therefore determine the outcome.
5. The Circuit Judge’s approach was not shown to involve any appealable error. The applicant had already achieved some success below and had no realistic prospect of doing better before the Court of Appeal. A copy of the judgment was ordered to be provided to him at public expense.

• Oxford County Court: His Honour Judge Corrie dismissed or varied the husband’s appeal from the ancillary relief order made by Deputy District Judge Williams.
• Court of Appeal (Civil Division): The application for permission to bring a second appeal, made substantially out of time, was dismissed.