Whitehouse-Piper v Stokes

After remarriage, a party may still proceed with an ancillary-relief application already made in the divorce petition. Section 28(3) of the Matrimonial Causes Act 1973 did not invalidate the application pursued later by Form A. A property adjustment order under section 21(2)(a) includes an order requiring a party to transfer specified property to the other party. The applicant may therefore seek a transfer order against herself. Jurisdiction to make that order does not create an entitlement to a balancing lump sum, which remains discretionary. The appeal was dismissed because jurisdiction existed, but the applicant failed to establish entitlement to further financial relief.

Former spouses divorced in 1994, and the wife remarried in 1995. After the former matrimonial home moved from negative to substantial positive equity, she issued Form A in 2006 to pursue property adjustment and a balancing lump sum under the ancillary-relief application in her divorce petition.

District Judge Brown transferred the property to the husband, refused the lump sum and ordered the wife to pay costs. HHJ Mitchell dismissed her appeal and raised, of his own motion, whether section 28(3) of the Matrimonial Causes Act 1973 deprived the court of jurisdiction after remarriage. The central issue before the Court of Appeal was whether the wife's post-remarriage step was permissible and whether she could seek a transfer order against herself.

Appeal dismissed unanimously. Lord Justice Thorpe delivered the judgment, with Lord Justice Wall and Lord Justice Stanley Burnton agreeing.

1. Jurisdiction after remarriage. Section 28(3) of the Matrimonial Causes Act 1973 prevents a party who has remarried from applying, by reference to the decree, for financial provision or a property adjustment order against the other party. It did not prevent the wife from issuing a notice of intention to proceed in Form A after remarriage because the application for ancillary relief had already been made in her divorce petition.
2. Property adjustment order. Section 21(2)(a) defines such an order as including an order requiring a party to transfer specified property in favour of the other party or a child of the family. Applying Dart v Dart [1996] 2 FLR 286, the court held that a party may seek an order against herself. The wife's application therefore founded jurisdiction to order the transfer of the property to the husband.
3. Discretionary relief. The jurisdiction to order the transfer did not establish an entitlement to a balancing lump sum. The wife failed to demonstrate any discretionary entitlement to that additional relief, so the result reached below was correct.
4. Earlier authorities. Robin v Robin [1983] 4 FLR 632 was treated as an obiter decision concerning a respondent who had not made an application of his or her own. That issue did not arise where the wife had applied in her petition. The Court of Appeal considered it unnecessary to engage in the analysis of Tee v Tee and Hillman [1999] 2 FLR 613 adopted by the judge below. Thorpe LJ nevertheless concurred in the view that, if necessary, the husband would probably have achieved the same result in TOLATA proceedings.

The appeal was dismissed, with the costs order below standing.

• Court of Appeal (Civil Division): On 15 July 2008, dismissed the wife's appeal and upheld the orders below.
• Shrewsbury County Court, circuit judge: On 18 February 2008, dismissed the wife's appeal from District Judge Brown's decision after raising the jurisdictional issue under section 28(3) of the Matrimonial Causes Act 1973.
• Shrewsbury County Court, District Judge Brown: On 2 August 2007, ordered transfer of the former matrimonial home to the husband, refused a balancing lump sum and ordered the wife to pay £5,000 on account of costs.