Khalil v Bishieri

On a second appeal in ancillary relief proceedings, the Court of Appeal may take account of a materially changed evidential position where the proposed order can fairly be made without prejudice to the other spouse. A matrimonial home may therefore be transferred to the occupying spouse rather than sold where that spouse can remortgage it and accepts the associated risk. The transfer may be conditional on the spouse not seeking increased periodical payments if unable to meet the new mortgage. The possibility of a later forced sale does not necessarily justify an immediate sale where that risk already exists under the order under appeal.

Following financial proceedings between the parties, District Judge Griggs ordered the sale of the former matrimonial home, payment of the net proceeds to the wife, limited periodical payments, pension sharing and provision for the children’s school expenses. The wife appealed in person. HHJ Vincent dismissed that appeal.

On a second appeal under section 55 of the Access to Justice Act 1999, the wife relied on updated evidence, including an HSBC remortgage offer and evidence of her earnings. The central issue was whether the home should instead be transferred into her sole name, having regard to the risk that she might later be unable to maintain the mortgage and to the interests of the children.

Appeal allowed. Bennett J delivered the judgment, with Thorpe LJ agreeing.

1. The evidence before the Court of Appeal presented a materially different position from that before the District Judge and HHJ Vincent. The wife now sought to assume the mortgage liability herself and relied on a proposed interest-only remortgage and updated evidence of earnings.
2. The proposed transfer would not prejudice the husband. If the wife later failed to maintain the mortgage, she would have to leave or the property would have to be sold, but that consequence already followed under the existing order. The risk therefore justified postponing, rather than requiring, the disruption associated with a sale.
3. It was fair to permit the wife to take the home in her sole name and assume the risk of the new mortgage. The order should provide that she could not seek increased spousal periodical payments if she became unable to meet those mortgage payments. That condition would prevent the husband from having effectively to underwrite the remortgage.
4. The appeal was allowed and consequential amendments to the order were to be addressed. There was no order for costs.

• Court of Appeal (Civil Division) — on second appeal, [2007] EWCA Civ 837, allowed the appeal and made no order for costs.
• Truro County Court, HHJ Vincent — dismissed the wife’s appeal from the District Judge’s order.
• Truro County Court, District Judge Griggs — ordered sale of the former matrimonial home and made ancillary financial provision for the parties and their children.