Sawden v Sawden

On a second appeal in ancillary-relief proceedings, permission may be granted where correcting a potential injustice provides a compelling reason, even though no important point of practice or principle arises. That may include a real risk that a spouse awarded a share of matrimonial-property equity will never obtain its benefit under a deferred-charge order. Fairness may require the charge to be realised when dependent children leave home and settle independently, subject to the occupying spouse’s ability to buy out the other spouse. Where a permitted trade-down releases surplus capital, that surplus may be shared in the proportions of the original equity allocation.

The husband appealed against ancillary-relief orders made in the Bournemouth County Court. On 25 March 2003, the Deputy District Judge ordered that the wife should retain the matrimonial home subject to a charge giving the husband 45 per cent of the equity and the wife 55 per cent, with specified realisation events and a rollover provision. On 18 June 2003, HHJ Meston QC dismissed the husband’s appeal, subject to a minor variation concerning the rollover provisions.

On a renewed application, the husband no longer challenged the 45:55 allocation. He contended that any surplus released if the wife traded down should be shared and that the charge should be realised when the children left home. The central questions were whether permission for a second appeal should be granted under rule 52.13 of the Civil Procedure Rules and whether the order required those further provisions.

1. Appeal allowed in limited respects. The court granted permission for a second appeal and varied the ancillary-relief order. There was no substantial point of practice or principle, but the circumstances supplied a compelling reason to intervene.
2. Under rule 52.13 of the Civil Procedure Rules, the restriction on second appeals may be met where the existing order creates a real likelihood that a party will never benefit from property equity awarded to that party. The possibility of correcting that unfairness was sufficient in this case.
3. The 45:55 division of the matrimonial-home equity was not disturbed. The wife’s greater share reflected her post-separation efforts in maintaining the property, meeting the mortgage and providing the family home.
4. Fairness required an additional trigger for realisation of the husband’s charge when both children left home and settled independently. At that point the property was to be sold, unless the wife could buy out the husband’s interest. The court considered that, had the children already left home, the wife’s attachment to the property would not ordinarily outweigh the husband’s entitlement to realise his share.
5. By consent, any surplus capital released on a trade-down was to be divided 55:45, with 55 per cent to the wife and 45 per cent to the husband. There was no order as to costs.

• Court of Appeal (Civil Division) — On 25 February 2004, the court granted permission for a second appeal and allowed the appeal in limited respects: Sawden v Sawden [2004] EWCA Civ 339.
• Bournemouth County Court — HHJ Meston QC dismissed the husband’s appeal on 18 June 2003, subject to a minor variation concerning the rollover provisions.
• Bournemouth County Court — On 25 March 2003, the Deputy District Judge made the original ancillary-relief orders concerning the matrimonial home, the deferred charge and the Standard Life policy.