AM v SS

When assessing financial relief, the court may take account of wealth held by a third party where the evidence provides sufficient confidence that it will be made available to support the payer. The court must not invade the third party’s rights or impose undue pressure upon that person. External wealth may justify a more generous allocation of the parties’ visible resources where it is likely to backfill the resulting shortfall. It is unsafe to make lavish orders based on speculation or hope that a wealthy relative will provide whatever sum is required.

The wife sought financial relief following a very short marriage. The husband’s visible resources were limited, but his father was exceptionally wealthy and had historically provided substantial assistance to the family. The wife argued that the court should expect the father to meet a substantial award. The husband argued that his father had no legal obligation to support him and had expressly refused to provide further funds.

The court had already determined that three valuable properties belonged beneficially to the husband’s father or sister, rather than to the husband. The central issue was the extent to which the father’s wealth and past generosity could properly be treated as a resource when determining the wife’s and child’s financial provision.

1. Applicable principles. The court applied the principles stated in Thomas v Thomas [1995] 2 FLR. The court may infer the availability of resources which are not directly owned by a spouse. It must not directly invade a third party’s rights or usurp that person’s discretion. It must also avoid placing undue pressure on the third party, although an order may in an appropriate case provide judicious encouragement for assistance.
2. External family wealth. The father’s wealth, generosity and history of providing accommodation, school fees and legal-fee assistance justified treating his resources as relevant to the assessment. The evidence nevertheless supported only a limited conclusion: he would probably assist to relieve his son from visible financial hardship. This was a backfill case, not a proper basis for ordering new money unrelated to the husband’s existing level of wealth. It would have been unsafe to proceed on the basis of hope or guesswork.
3. Financial provision. Applying section 25 of the Matrimonial Causes Act 1973, with particular regard to the child’s needs, the short marriage and the parties’ resources, the court ordered transfer of the husband’s Maida Vale flat to the wife. The husband was responsible for redeeming the secured charges, by family assistance or equivalent borrowing. The wife received two-thirds of the equity absolutely, with a life interest in the remaining third for the child’s ultimate benefit.
4. The interim maintenance order continued for three months. Thereafter periodical payments of £4,000 per month were ordered, divided equally between the wife and child. The child’s payments were to continue until completion of tertiary education.