TF v FF

Permission to appeal a financial remedy order requires a real prospect of success. An appeal may proceed where the lower court may have failed to make proper allowance for reasonable needs, particularly after a long marriage where dependent children remain and the applicant has limited earning history. Permission should not be granted for disproportionate or futile challenges to capital provision. The court may condition permission on a limit to recoverable appeal costs, especially where the litigation has involved profligate expenditure.

The applicant wife sought permission to appeal a financial remedy order made by District Judge Malik on 18 January 2013. The order divided the parties’ limited net capital substantially in her favour, made a modest pension-sharing order, provided for child maintenance and granted her nominal periodical payments for three years subject to a bar on extension.

She challenged both the capital allocation and the amount and duration of spousal periodical payments. The central questions were whether either challenge had a real prospect of success and whether permission should be subject to a costs condition.

1. Appeal test. Under Family Procedure Rules 2010, rule 30.12(3), the appeal test was whether the lower court’s decision was wrong or unjust because of a serious procedural or other irregularity. Permission required a real prospect of success under rule 30.3(1).
2. Capital provision. Permission was refused on the capital issues. The district judge’s finding that the wife would not rehouse herself and the children in a property costing little over £200,000, while living in a substantially more valuable home, could not realistically be challenged. Further argument about the remaining capital would also be disproportionate and futile. Although the treatment of the parties’ legal costs and the reference to the wife’s conduct were surprising, they did not create a real prospect of success when the overall capital division was considered.
3. Periodical payments. Permission was granted concerning the amount and, particularly, the three-year time bar. The wife had no established earning record, the marriage had lasted 18 years and three minor children would remain dependent in three years. Those matters gave her an arguable case that proper allowance had not been made for her reasonable needs.
4. Costs condition. Permission was granted subject to a condition that recoverable costs of the appeal could not exceed £5,000 for either party. The court had a responsibility to discourage disproportionate expenditure, especially in litigation that had already substantially depleted the family’s resources.
5. The application was otherwise dismissed. A half-day appeal hearing was fixed, subject to the parties reaching a negotiated solution.

The application concerned an appeal from a financial remedy order made by District Judge Malik on 18 January 2013. The High Court granted permission on the amount and duration of periodical payments, refused permission on capital provision, and imposed a condition limiting recoverable appeal costs.