B v B

On a second appeal in ancillary relief proceedings, an argument that established principles were wrongly applied to the facts is not, without more, an important point of principle or practice. There is no presumption or starting point of equal division. The court must examine the statutory factors and all relevant circumstances, including the source of wealth. Inherited or independently acquired wealth, especially wealth obtained before marriage, may justify an unequal division, but it does not make equality impermissible. A second appeal may nevertheless be heard where the result is sufficiently surprising and arguably unfair to constitute another compelling reason. The jurisdiction is exceptional because the normal scheme provides for one merits appeal.

The wife sought permission to bring a second appeal in matrimonial ancillary relief proceedings. The district judge aimed at broad equality of capital, leaving the wife the former matrimonial home and transferring the car wash business to the husband, with a capitalised maintenance payment. On appeal, the circuit judge altered the valuation and ordered a £54,000 lump sum, continuing periodical payments to the wife and school-fees payments by the husband.

The wife argued that equality was impermissible because the capital derived entirely from her pre-marital inheritance. She also challenged the structure and reasons of the decisions below. The central questions were whether the application disclosed an important point of principle or practice, and, alternatively, whether there was another compelling reason for a second appeal.

Lord Justice Hughes delivered the judgment, and Mr Justice David Richards agreed. The application for permission to bring a second appeal was granted.

1. The wife’s principal argument concerned the application of established ancillary relief principles. The Court accepted that there is no presumption or starting point of equality in every case. All the Section 25 factors and any other relevant circumstances must be examined, and monetary and non-monetary contributions must be treated alike.
2. A judge should test provisional conclusions against the yardstick of equality and depart from it only for good reason. The source of family wealth may provide such a reason where it was inherited or independently acquired by one spouse, particularly before the marriage. That principle could have justified a division less favourable to the husband, but it did not make an equal division legally impermissible. Equality could still be fair on the facts.
3. Under Section 55 of the Access to Justice Act and rule 52(13)(2) of the Civil Procedure Rules, an important point of principle or practice means an important point not yet established, going beyond the present case and having future application. The wife’s complaint was in substance an argument about the application of settled principles, so it did not satisfy that ground.
4. The criticisms of the judgments’ structure and reasoning did not disclose an important point of practice. Although the district judge had not set out the financial facts in the usual form, and the circuit judge’s judgment could be criticised in some respects, the circuit judge had addressed the central issue in substance.
5. Second appeals are exceptional. Nevertheless, the financial outcome was sufficiently striking, surprising and arguably unfair to constitute another compelling reason for the Court of Appeal to hear the case. Permission was therefore granted on that ground, not on the ground of an important point of principle or practice.

• Court of Appeal (Civil Division): Permission to bring a second appeal was granted on the ground of another compelling reason. [2007] EWCA Civ 1101.
• Kingston upon Thames County Court: The district judge ordered a broad equality of capital, including transfer of the car wash business to the husband and a capitalised maintenance payment. On appeal, the circuit judge varied the valuation and financial orders, including a £54,000 lump sum and continuing periodical payments.