Fisher- Aziz v Aziz

In ancillary relief proceedings, where a spouse occupying the final matrimonial home seeks its transfer rather than sale proceeds, the transfer should ordinarily be made, having primary regard to the children’s interests, if the applicant can secure the other co-owner’s release from the mortgage or charges. Practical difficulty alone should not deprive the applicant of the opportunity to assume the risk of transfer. On a second appeal, permission may be granted where compelling reasons exist. A point not raised below will not be entertained, but an issue shown to have been raised and overlooked may be remitted to the lower appellate judge.

This was a second appeal in ancillary relief proceedings. The District Judge ordered the sale of the parties’ final matrimonial home and refused both parties’ applications for its transfer. Both parties appealed to Black J, who essentially dismissed the appeals, while correcting the order concerning two other properties.

The wife challenged the refusal to transfer the matrimonial home to her and argued that the District Judge had unfairly divided various investment properties. The Court of Appeal also considered arrears of periodical payments and rental receipts from the properties. The central issues were whether the sale was justified by alleged impracticability and financial scarcity, and whether the investment-property point had been raised before Black J.

Disposition

Permission to appeal was granted and the appeal was allowed to the extent indicated.

1. Transfer of the matrimonial home. Where the wife occupies the final matrimonial home and seeks its transfer instead of the sale proceeds, she should ordinarily succeed, having primary regard to the interests of the children, provided that she can secure the release of the co-owner from the mortgage or charges affecting the property.
2. Impracticability and financial resources. The court should not refuse the transfer merely because it presents practical difficulties which the applicant is willing to undertake. The wife should have been permitted to run that risk. The alleged scarcity of resources did not justify a sale because retention or sale of the home would make no material difference to the wider financial structure. The subsequent inheritance available to the wife also removed any remaining sense of impracticability.
3. Bank charge. The husband’s relationship with the Bank of Cyprus did not prevent transfer. The wife would have to reach an accommodation with the bank or permit its charge to remain, despite the property no longer being jointly owned.
4. Second appeal. Although this was a second appeal, the court considered that the compelling-reasons limb of the permission test was satisfied.
5. Investment properties. The wife was given seven days to produce her reasons for appeal and skeleton argument. If the point had not been taken below, it would not be entertained. If the documents showed that Black J had overlooked a point properly raised before her, that issue was to be remitted to her for specific determination.
6. Payments and rent. The husband was in substantial arrears under periodical payments orders. He was directed, in the interests of saving costs, to provide within seven days an account of receipts and expenditure relating to the two properties, and to discharge any sum due to the wife.

• Court of Appeal (Civil Division) — Permission granted; appeal allowed to the extent indicated.
• Principal Registry Family Division (Black J) — On 6 August 2009, essentially dismissed both parties’ appeals but amended the order to include transfers of two properties and a mechanism for execution of documents.
• District Judge, Principal Registry — On 7 May 2009, ordered the sale of the final matrimonial home, gave directions for the sale and mortgage payments, restricted further charging, and refused the applications to transfer the home.