Walker v Walker

Permission to appeal in financial-remedy proceedings should be granted where there is a realistic prospect that the maintenance award leaves the payer without sufficient resources to rehouse himself and maintain the business assets necessary for his income. The court must quantify those housing and business-storage needs. Where the affordability of a capital transfer depends on the maintenance award, a realistic prospect that the maintenance figure is excessive may require reconsideration of the capital order as well. Permission may properly be granted generally where the issues are interdependent, even though the original decision on the occupation of the former matrimonial home was otherwise within the judge’s discretion.

The husband applied for permission to appeal against a Deputy District Judge’s financial-remedies decision. The former matrimonial home was jointly owned, heavily mortgaged and occupied by the husband, while the wife lived elsewhere with the parties’ three children. The judge transferred the property to the wife and ordered the husband to pay periodical payments of £425 per month, in addition to child maintenance assessed by the CSA.

The husband challenged the treatment of the property, including alleged development value and his belief that the wife would sell it, but those matters had not been properly raised at the hearing. The central issue was whether the maintenance award had been assessed without proper consideration of the husband’s realistic costs of rehousing himself and storing the vehicles and equipment required for his business, and whether that affected the affordability of the transfer.

1. Permission granted. The proposed appeal had a real prospect of success and permission was granted generally in relation to both the capital and maintenance aspects.
2. The decision that the wife and children should have the former matrimonial home was, considered in isolation, within the Deputy District Judge’s discretion. The modest equity and the parties’ competing housing needs justified choosing the wife’s housing need as more important in the circumstances.
3. The proposed arguments concerning the property’s development value and the wife’s alleged intention to sell it did not provide a sufficient basis for permission. They had not been properly raised or explored at the original hearing, and the husband had instead represented the property as worth less than the wife’s valuation.
4. There was, however, a realistic prospect that the maintenance award of £425 per month was excessive. The judgment did not quantify what the husband would realistically need to pay to rehouse himself, including accommodation where the children could stay, or to rent commercial storage for the vehicles and equipment essential to his business.
5. The maintenance and capital decisions were interdependent. The Deputy District Judge had assessed the wife’s ability to take on the mortgage and household outgoings partly by reference to the maintenance award. If the maintenance figure required reduction, the affordability assessment and the transfer of the property might require reconsideration.
6. The husband was expressly warned that, if unsuccessful, he was likely to bear the wife’s costs and his own costs, potentially involving a further substantial costs burden disproportionate to the modest assets and income.

The husband sought permission to appeal from the decision and order of Deputy District Judge Elliot made in the Principal Registry of the Family Division on 11 July 2013. The High Court granted permission to appeal generally in relation to both the capital and maintenance aspects.