TL v ML & Ors

In ancillary relief proceedings, property claimed by a spouse but legally owned by a third party must be determined under ordinary property law, with the same rigour as in the Chancery Division. An award may reflect money expected from an outsider only where the court is satisfied, on the balance of probabilities, that it will be provided. Historical family bounty alone cannot justify an award beyond the payer’s own resources when the donor has refused further assistance.

Maintenance pending suit is governed by reasonableness or fairness. The court may make robust assumptions where disclosure is deficient and may include litigation costs exceptionally, provided the applicant lacks assets, cannot obtain a litigation loan and cannot secure a solicitor’s charge.

The wife sought ancillary relief following a seven-year marriage. She alleged that a London flat registered to the husband’s brother, and two offshore companies associated with the husband’s family, belonged beneficially to the husband. Alternatively, she argued that his wealthy parents’ assets and anticipated bounty were resources from which the court should encourage provision.

The court also heard the husband’s appeal against a maintenance pending suit order made by District Judge Maple. That order comprised general maintenance, rent, school fees and a monthly litigation-costs allowance.

The central questions were which assets belonged to the husband, how far anticipated family support could be treated as a financial resource, the appropriate ancillary relief award, and whether each component of the interim maintenance order was justified.

1. The wife’s claim to the London flat was dismissed. A legal transfer prima facie carries the beneficial interest. A claimant asserting a contrary beneficial ownership must establish an express, resulting or constructive trust. The wife’s late account of an oral trust was rejected, and the husband’s brother was declared the sole legal and beneficial owner.

2. The wife also failed to establish that the husband beneficially owned either offshore company. The evidence showed that the companies and their funds belonged to or were controlled by members of the husband’s wider family. Expenditure for the husband’s benefit did not establish his ownership.

3. The court declined to make a final award exceeding the husband’s own assets and attributed income. Thomas v Thomas [1995] 2 FLR 668 did not authorise an award based merely on hope that a relative would provide the shortfall. An outsider’s money may be taken into account where the court is satisfied on the balance of probabilities that it will be supplied. A mere donor may withhold bounty, unlike a trustee who must consider a beneficiary’s interests.

4. After considering the factors in section 25(2) of the Matrimonial Causes Act 1973 and giving first consideration to the children’s welfare, the court awarded the wife €500,000 capital and annual income of €81,420, divided equally between her and the two children. No security for maintenance was ordered because no suitable substantial asset within the jurisdiction was identified.

5. The husband’s maintenance pending suit appeal was dismissed as to general maintenance, rent and school fees. Reasonableness or fairness was the governing criterion under section 22 of the Matrimonial Causes Act 1973. The deficient disclosure and uncertainty about continuing family support justified the district judge’s robust assumptions.

6. The appeal was allowed as to the litigation-costs allowance. Section 22 permits such an allowance in an exceptional case where the applicant has no assets, cannot obtain a litigation loan and cannot secure a solicitor’s charge. The wife had produced neither a detailed costs estimate nor evidence that alternative funding was unavailable. The uncomputed arrears were remitted because calculating and paying them would serve no useful purpose.

• High Court (Family Division): determined the ancillary relief application and allowed the husband’s appeal in part, setting aside the litigation-costs element while upholding general maintenance, rent and school fees.
• District Judge Maple: on 7 July 2004 awarded maintenance pending suit of £205,000 annually, comprising general maintenance, rent, school fees and a costs allowance.
• High Court (Family Division), Singer J: on 8 February 2005 declined to determine the appeal and conducted a financial dispute resolution hearing by agreement.
• High Court (Family Division), Bennett J: conducted further financial dispute resolution hearings on 8 April and 6 May 2005.