Agrest & Anor v Kremen

Under section 23 of the Matrimonial and Family Proceedings Act 1984, a disposition intended to defeat a claim for financial relief may be restrained or set aside despite compliance with English registration formalities. The statutory exception requires valuable consideration, good faith and absence of notice of that intention. Actual or constructive knowledge prevents reliance on the exception. Broad complaints about evidence or fairness, without an arguable legal error or specific Article 6 basis, do not justify permission to appeal. A foreign separation agreement or findings in separate proceedings do not displace the statutory issues governing an application to set aside a disposition.

These were two proposed appeals from orders made by Mostyn J on 15 October 2010 in proceedings under Part 3 of the Matrimonial and Family Proceedings Act 1984.

The wife sought to set aside a charge over Whitecliff granted by Agrest in favour of Fishman, and sought payment of part of the sale proceeds towards maintenance arrears. Mostyn J set aside the charge and directed payment of approximately £250,000 to the wife. Agrest also sought a stay of the proceedings. The proposed appeals challenged the treatment of the Israeli separation arrangements, earlier findings, the evidence, the statutory charge and Article 6 fairness. The central issue was whether either proposed appeal was arguable.

1. Disposition. Lady Justice Black refused both applications for permission to appeal. The formal order was: applications refused.
2. Agrest’s application. The general Article 6 complaint was unsupported by particulars and disclosed no arguable unfairness. The proposed grounds concerning the validity of the marriage and pending Israeli proceedings did not identify a formal issue determined in the English proceedings. The Israeli separation agreement was relevant to the earlier grant of leave and might be relevant at the substantive ancillary-relief hearing, but it did not govern the application to set aside the charge under section 23.
3. Statutory scheme. Section 23 creates a scheme restricting dispositions made with the intention of defeating a claim for financial relief. English registration formalities and the asserted effect of the Israeli orders did not answer that statutory question. The charge was capable of being set aside because it defeated the wife’s claim, at least by frustrating enforcement. The statutory presumption of intention applied, and the evidence independently demonstrated the husband’s intention.
4. Fishman’s application. The only material issue was the exception in section 23(6), which protects a disposition for valuable consideration to a person acting in good faith and without notice of the intention to defeat the claim. Mostyn J was entitled to find, on the evidence including Fishman’s own evidence, that Fishman knew of the relevant intention or was fixed with constructive knowledge. The exception was therefore unavailable.
5. The determination did not depend on the wife’s credibility. The challenge was principally a broad attack on factual findings and did not identify an error of law or any valid ground for appellate intervention. Findings made in the earlier, separate proceedings did not require a different conclusion; Mostyn J had incorporated their relevant background.

• Court of Appeal (Civil Division). In [2011] EWCA Civ 259, Lady Justice Black refused both proposed appellants permission to appeal.
• Principal Registry of the Family Division. Mostyn J made orders on 15 October 2010 setting aside Fishman’s charge over Whitecliff, refusing payment of the proceeds to him, directing payment of approximately £250,000 to the wife, and dealing with Agrest’s application to stay the proceedings. The judgment appealed was not otherwise cited.