Dutt v Dutt

On an application for permission to appeal against ancillary-relief orders, the appellate court will intervene only where there is an arguable error of law or the exercise of discretion was plainly wrong. A trial judge may draw adverse inferences from a party’s failure to give full, frank and clear financial disclosure, but disclosure rules exist to achieve a fair distribution of family wealth, not to punish disobedience. A periodical-payments order remains variable. A party seeking variation because of changed income must apply below and support the application with proper evidence. Where the evidence supports provision for a spouse caring for children and there is a substantial age disparity, a joint-lives order and pension sharing may fall within the discretionary band.

The appellant sought permission to appeal against five orders made in divorce and ancillary-relief proceedings in the Dewsbury County Court. The challenged orders concerned enforcement of maintenance pending suit, case management, the striking out of a committal application, refusal to stay or appeal a third-party debt order, and the final ancillary-relief order of 9 December 2004. The final order transferred the former matrimonial home to the respondent, set aside an HSBC charge, provided for pension sharing and pension attachment, ordered periodical payments of £2,000 per month, and imposed costs on an indemnity basis.

The central questions were whether the final order involved an error of law or a plainly wrong exercise of discretion, and whether any of the earlier interlocutory orders disclosed an arguable basis for appeal.

1. Disposition. All five applications for permission to appeal were refused. The court held that an appeal could succeed only if the judge had made an error of law or exercised the discretion in a manner that was plainly wrong.
2. The earlier orders were either conventional enforcement orders or sensible case-management directions. The challenge to the committal order had no reasonable prospect of success and, in any event, revival of the matter after more than 18 months would be inappropriate. Challenges to the earlier orders had also become academic once the ancillary-relief hearing had occurred.
3. In ancillary-relief proceedings, both parties must give full, frank and clear disclosure. The purpose of Matrimonial Causes Act 1973 section 25 and the disclosure rules is a fair distribution of family wealth, rather than punishment for disobedience. Where a party fails to disclose or conceals assets, the court may draw adverse inferences. The defaulting party will ordinarily be unable to complain that the court had to draw them.
4. The transfer of the former matrimonial home was an unimpeachable exercise of discretion because the equity was needed to re-house the respondent and children. The respondent’s health, sole care of two children and earning capacity justified a conservative view of when her earning capacity might revive. A joint-lives periodical-payments order of £2,000 per month was within the discretionary band.
5. The pension-sharing principle was not disputed. An order for 35 per cent of the larger pension was within the judge’s discretion, particularly given the age disparity and the delayed benefit of pension sharing. The death-in-service-benefit decision was also within the discretion. If the periodical-payments order caused financial difficulty, the appellant’s remedy was an application below to vary or discharge it, supported by full, frank and clear disclosure and evidence rather than assertion.

• Court of Appeal (Civil Division): [2005] EWCA Civ 1193. Permission to appeal against all five Dewsbury County Court orders was refused.
• Dewsbury County Court: HH Judge Finnerty made the principal ancillary-relief order on 9 December 2004 and earlier interlocutory orders. The Court of Appeal found no arguable error of law or plainly wrong exercise of discretion.