Hashem v Shayif & Ors

Whether a postnuptial settlement exists and what property it comprises are separate questions. The court may consider the intentions and position of those with interests in the property, including children who have accepted a spouse’s occupation only temporarily. Later dealings with the property do not necessarily determine the scope of the settlement. A carefully reasoned costs order in complex ancillary-relief and property proceedings will stand where it falls within the judge’s broad discretion. Protection under the Administration of Justice Act section 11 may be implemented by a stay.

The marriage between the appellant wife and the respondent husband was void because the husband was already married. Following the breakdown of the relationship, the wife brought ancillary-relief proceedings, while Radfan Limited brought Chancery proceedings concerning the property in which she lived. The proceedings were consolidated before Munby J.

Munby J held that a postnuptial settlement had been created, but limited the wife’s entitlement to a revocable six-month licence to occupy the property. He also transferred the husband’s shareholding in Radfan and made a complex costs order. The wife sought permission to appeal against both judgments, challenging the scope of the settlement and the costs orders.

Thorpe LJ gave the judgment of the court. Scott Baker LJ and Sullivan LJ agreed. The applications for permission to appeal were refused.

1. Primary judgment. The central question was whether a settlement existed and, if so, what it contained. Munby J was entitled to distinguish the property occupied by the wife from the other properties held by Radfan. The children’s position and a company official’s description of the wife as an indefinite occupant were relevant matters.
2. The judge was also entitled to take into account that neither the company nor the children intended the wife to benefit beyond occupation under a revocable licence. That consideration supported the limited scope of the settlement and disclosed no arguable error.
3. Later dealings with the property, including increased borrowing after separation, did not bear on the fundamental question of whether a settlement had been created and what property it comprised. The judge’s reasoning was clear and adequately explained.
4. Costs judgment. The costs order was complex because the wife became publicly funded and was entitled to protection under section 11 of the Administration of Justice Act. That protection could properly be expressed by a stay. The judge was entitled to make adverse costs orders, a Bullock order in the wife’s favour against the husband, and a setoff in favour of Radfan. The order was principled and fell within the broad ambit of his discretion.

The respondent’s notice did not require consideration because it was conditional on permission being granted. Applications refused.

• Court of Appeal (Civil Division): Applications for permission to appeal against both judgments were refused.
• Principal Registry, Family Division: Munby J held that a postnuptial settlement had been created, limited the wife’s occupation to a six-month licence, transferred the husband’s shareholding in Radfan to her, and made a complex costs order.