Zeiderman v Zeiderman

In ancillary-relief appeals, a court should not uphold a property or income order founded on assumption or belief rather than evidence, particularly where central evidence has been excluded. Conduct should be considered only insofar as specific conduct would be inequitable to disregard; general matrimonial misconduct should not distort the financial assessment. Fresh evidence may be admitted where the interests of justice require it, and the ordinary civil approach is persuasive rather than automatic in family appeals. Delay does not bar permission where serious doubts about the justice of the outcome and the decision-making process provide a compelling reason for an appeal and rehearing.

Following the breakdown of the parties’ marriage, District Judge Segal ordered the appellant to transfer the former matrimonial home to the respondent and to pay periodical payments of £20,000 a year. The order relied substantially on findings about the appellant’s credibility, alleged undisclosed income and a property formerly owned by his parents. Black J dismissed his appeal on 25 January 2007 and refused permission to adduce evidence from the appellant’s sister-in-law and employer. The Court of Appeal considered whether the delayed application raised a compelling reason for permission and whether the matter should be reheard with the fresh evidence admitted. The court also noted uncertainty because the decree nisi had apparently not been made absolute.

Disposition. Wall LJ delivered the leading judgment and Sir Peter Gibson concurred. The court granted permission, allowed the appeal, set aside the orders of District Judge Segal and Black J, and directed a rehearing of the ancillary-relief application before the Senior District Judge or as he might allocate it.

1. Permission and jurisdiction. Despite the delay and staleness of the appeal, the threshold under Access to Justice Act 1999, section 55(1), and rule 53.13(2) of the Civil Procedure Rules was met. The court’s serious doubts about both the justice of the outcome and the manner in which the conclusions had been reached constituted a compelling reason to hear the appeal. The fact that the decree nisi had apparently not been made absolute also cast doubt on the district judge’s jurisdiction or on whether his order had taken effect, although that issue was not finally determined.
2. Evidence and financial orders. The property adjustment appeared to have been based on assumption and belief rather than evidence. That was an unsatisfactory basis for deciding a central capital issue. The appellate court also considered that Black J should have investigated the issue more fully instead of simply approving the district judge’s exercise of discretion.
3. Conduct. In the light of Miller v Miller [2006] 1 FLR 1201/2, only specific aspects of conduct which it would be inequitable to disregard should affect ancillary relief. General allegations resembling a divorce petition, particularly conduct with no bearing on financial matters, should not drive the award, although they might bear on credibility. The district judge appeared to have been over-influenced by his perception of the appellant.
4. Fresh evidence. Rule 8.1(3) of the Family Proceedings Rules permits a rehearing and permits oral or other evidence not before the district judge where the interests of justice require it. The evidence concerning the property was central and necessary for a just determination. Ladd v Marshall was persuasive but was not automatically followed in family matters; the principles discussed in Cordle v Cordle [2002] 1 FLR 214 did not justify excluding the evidence.
5. Scope. The court stressed that the decision turned on highly unusual facts and should not be treated as a general precedent. Orders made by the district judge on 20 May 2008 were to be stayed pending rehearing.

• Court of Appeal (Civil Division): On 18 June 2008, granted permission, allowed the appeal, set aside the lower orders and directed a rehearing before the Senior District Judge or as allocated: [2008] EWCA Civ 760.
• High Court of Justice, Family Division: Black J dismissed the appellant’s appeal from District Judge Segal’s order on 25 January 2007 and refused permission to adduce fresh evidence.
• Principal Registry of the Family Division: District Judge Segal ordered transfer of the former matrimonial home and periodical payments of £20,000 a year on 7 June 2006.