Arbili v Arbili

In financial remedy proceedings, equality is a yardstick rather than an inflexible outcome. Where the case is one of need, sharing must yield to the preponderant needs of a spouse responsible for a child, and housing needs need not be met by identical provision. An appellate court will not interfere with evidence-based findings or a discretionary order within the reasonable range merely because another evaluation is possible. Where unlawfully obtained material is involved, the court may require its return and relevant disclosure, and may exclude it after a fact-specific balancing exercise involving necessity, importance, conduct, delay and costs.

These conjoined appeals arose from financial remedy proceedings before HHJ Horowitz QC in the Principal Registry of the Family Division. The first appeal challenged the September 2013 financial order, including the treatment of two French properties, mortgage capacity, indebtedness, chattels and housing needs. The second challenged the December 2013 refusal to adjourn and permit further evidence in the husband’s application to set aside the order for alleged material non-disclosure based on unlawfully obtained electronic material. The central issues were whether the financial order involved an impermissible departure from equality and whether the set-aside application had been fairly and properly managed.

Lady Justice Macur delivered the judgment, with Sir Bernard Rix agreeing. Both appeals were dismissed.

1. September order. The judge had correctly approached the case under section 25 of the Matrimonial Causes Act 1973, using fairness and equality as a yardstick while recognising that sharing must yield to the preponderant needs of a spouse with responsibility for a child. That approach was consistent with White [2001] AC 596 and Miller/McFarlane [2006] 1 FLR 1186. The findings on earning capacity, mortgage capacity and loan repayment were supported by the evidence. The mathematical error was negligible.
2. The court considered that the two French properties should not have been treated differently merely because of their differing ownership arrangements. Both were immediately inaccessible. Nevertheless, the matter was a needs case, not a big-money sharing case. The judge had adequately justified the wife’s housing provision, and the error did not invalidate the order. Exact parity of housing was unnecessary; M v B (Ancillary Proceedings: Lump Sum) [1998] 1 FLR 53 did not establish otherwise.
3. The judge was entitled to refuse late written submissions after circulating the draft judgment, while inviting counsel to identify matters raised but not addressed. To accept submissions requiring reconsideration would risk the judge hearing an appeal against his own decision. The procedure preserved the right of appeal, consistently with In re L and another (Children) (Preliminary Finding: Power to Reverse) [2013] UKSC 8.
4. December order. Under Imerman v Tchenguiz and others [2010] EWCA Civ 908, unlawfully obtained material had to be returned, relevant disclosure arising from it was required, and any challenge was confined to evidence of remembered contents. The court could exclude such material after balancing fair disposal and costs against its importance, the parties’ conduct and other case-management factors. The husband’s failure to explain how the material was obtained, its limited relevance, subsequent disclosure, delay and costs justified summary dismissal without inspecting the material or allowing further time. The decision fell within the reasonable discretion required by Part 1 of the Family Procedure Rules 2010.

• Court of Appeal (Civil Division): dismissed both appeals against the September and December 2013 orders. [2015] EWCA Civ 542.
• Principal Registry of the Family Division: HHJ Horowitz QC made the September 2013 financial remedy order and, in December 2013, refused the husband’s adjournment and directions requests in the set-aside proceedings.