Tchameni v Jones

For a Part II order under paragraph 4 of Schedule 7 to the Family Law Act 1986, a dwelling must qualify as a matrimonial home. That requires spouses to have lived there together as husband and wife, involving some communal life. Occupying the same property while living separate lives is insufficient. A previous ruling in the same dispute does not necessarily create an estoppel or res judicata. On a second appeal, permission requires an important point of principle or practice, or another compelling reason. A challenge to factual findings will not meet that threshold where the fact-finding judge was entitled to reach the findings made.

The former wife sought a transfer order and a long-term occupation order concerning the former husband's tenancy of 62 Woodland Street. District Judge Sterlini refused the application, finding that the parties had separated before the tenancy began and were not living together as husband and wife, although they sometimes occupied the same property. He also rejected the suggested effect of an earlier ruling between the parties.

His Honour Judge Mitchell dismissed the appeal. Lewison LJ refused permission on paper. The applicant renewed the application orally before Sales LJ. The central issues were whether the property was a matrimonial home under paragraph 4 of Schedule 7 to the Family Law Act 1986 and whether the second-appeal threshold was met.

Application refused. The Court of Appeal declined to grant permission for a second appeal.

1. Permission for a second appeal should be granted only where the proposed appeal raises an important point of principle or practice, or there is another compelling reason for the Court of Appeal to hear it. The applicant had not shown any error in Lewison LJ's reasoning or any sufficient basis for overcoming that threshold.
2. Paragraph 4 of Schedule 7 to the Family Law Act 1986 prevents a Part II order unless, in the case of spouses, the dwelling-house is or was a matrimonial home. In this context, a matrimonial home requires the spouses to have lived there together as husband and wife, involving some communal life.
3. The requirement is not satisfied merely because separated spouses occupy the same roof. The findings that the parties had fully separated their affairs, lived separate lives and did not live together as husband and wife meant that the property could not qualify as a matrimonial home. The factual findings did not depend on the burden of proof and were findings which the fact-finding judge was entitled to make after hearing the evidence.
4. Moore v Moore, where Thorpe LJ had referred to the statutory basic conditions for protection, concerned a different issue. Thorpe LJ had not sought to decide the question raised in the proposed appeal. In any event, even that formulation did not give the applicant a real prospect of success on the facts found.
5. The renewed oral application for permission to appeal was therefore refused.

• Court of Appeal (Civil Division): Sales LJ refused the renewed oral application for permission to appeal on 30 April 2015.
• Court of Appeal (Civil Division): Lewison LJ had previously refused permission on the papers.
• Bromley County Court: His Honour Judge Mitchell dismissed the appeal from District Judge Sterlini's refusal of the transfer and occupation orders.
• Bromley County Court: District Judge Sterlini refused the application after finding that the property was not a matrimonial home.