A v L

On an appeal from a discretionary financial remedy order, the appellate court ordinarily conducts a review rather than a rehearing. Under the Family Procedure Rules 2010, the established constraint remains applicable: intervention is justified where the decision was plainly wrong, involved an error of law, or was unjust because of serious procedural or other irregularity.

A substantial departure from equality under the Matrimonial Causes Act 1973 requires good reason. Needs and disparity in earning capacity may justify departure, but the court must consider the needs of both parties and explain the relationship between any capital division and periodical payments. A significant departure may be fair where it forms part of a clean-break solution.

The Husband appealed against a financial remedy order made by Greene DJ on 30 June 2011. The order required the matrimonial home to be sold after two years, divided 70% to the Wife and 30% to the Husband, and required the Husband to pay periodical payments of £500 per month for four years.

Permission to appeal was granted by Ryder J. The appeal was heard as a review. The central issues were whether the District Judge had adequately reasoned the departure from equality, assessed both parties’ needs, and explained the interaction between the capital and periodical payments orders.

1. Appeal allowed in part in substance. The appellate court held that the District Judge’s judgment was open to justified criticism because it did not sufficiently explain the significant departure from equality, how the capital order met both parties’ needs, or the interaction between the capital and periodical payments orders.
2. The appeal was governed by review rather than rehearing. Although Family Procedure Rules 2010, rules 30.3(7) and 30.12 applied, the established constraint remained: a discretionary decision was wrong only if it was plainly wrong or involved an error of law. No procedural irregularity or unsupported factual finding had been established.
3. Applying White v White [2000] 2 FLR 981, fairness remained the objective and a departure from equality required good reason. Needs and disparity in earning capacity could justify departure, but the needs of both parties had to be considered. A departure justified by income disparity required particular attention to whether periodical payments were also being made.
4. The court substituted its own order using the District Judge’s findings of fact. The matrimonial home was to be sold as soon as possible, rather than after two years. The 70/30 division was retained, but only on a clean-break basis. The Husband was to pay the mortgage until sale, or periodical payments equivalent to that sum if he would not undertake to do so, with a direction under section 28(1)(a) preventing extension.
5. The departure from equality was justified by the parties’ income disparity, the Wife’s continuing responsibility for the children, the Husband’s Egyptian resources, the parties’ respective housing resources, and the Husband’s retention of the endowment policy proceeds. The order was considered as fair as possible in circumstances where neither party’s needs could be fully met.

• High Court (Family Division): Permission to appeal was granted and the appeal was allowed to the extent that the order was varied. The matrimonial home was ordered to be sold as soon as possible, the 70/30 division was retained on a clean-break basis, and the periodical payments arrangement was replaced by provision for mortgage payments until sale.
• District Judge: Greene DJ made the financial remedy order on 30 June 2011 following hearings on 13 and 14 June 2011.