Goyal v Goyal

The injunction power under section 37 of the Senior Courts Act 1981 is ancillary to a separate substantive legal or equitable right. It cannot be used to make a free-standing, final and substantive order merely because that order appears fair in matrimonial financial proceedings.

An overseas pension arrangement is not automatically beyond the pension-sharing jurisdiction. Whether an order can properly be made requires investigation of the arrangement, any restriction on transfer, the response of the scheme provider and enforceability. Where that statutory claim remains unresolved, the court should determine it under the statutory scheme rather than substitute an injunction.

Following contested financial remedy proceedings after divorce, the husband was found to remain the beneficial owner of an Indian annuity policy derived from two former English pension policies. The judge considered that the policy was outside the pension-sharing jurisdiction because it was held in India. He therefore ordered the husband, under a purported ancillary mandatory injunction, to transfer or assign the policy to the wife and meanwhile pay her its income.

The husband appealed from the Central Family Court. The central issues were whether an overseas policy could be the subject of pension sharing and whether the court could make a final mandatory transfer order outside the statutory scheme in the Matrimonial Causes Act 1973.

1. Appeal allowed. Paragraphs 1 and 2 of the order of 6 January 2016 were set aside. The wife’s pension-sharing application was remitted to the Family Court for re-determination.

2. The judge had been wrong to treat the Indian location of the annuity as automatically excluding pension-sharing jurisdiction. An overseas arrangement may fall within section 21A of the Matrimonial Causes Act 1973 and section 46 of the Welfare Reform and Pensions Act 1999. The court had not considered the necessary further matters, including the policy terms, the scheme provider’s response and enforceability in India.

3. However, the error did not validate the order made. Section 37 of the Senior Courts Act 1981 permits injunctions only in support of an existing substantive legal or equitable right. It does not confer a residual jurisdiction to make a final, substantive order outside the matrimonial statutory scheme because such an order is thought just. Wicks v Wicks, [1998] 1 FLR 470, confirmed that there is no inherent residual jurisdiction to fill such a gap.

4. The transfer order and the interim direction to pay the annuity income stood or fell together. The latter could not instead be justified as a further periodical-payments order under section 23 of the Matrimonial Causes Act 1973, because an order for periodical payments was already in force.

5. The wife’s application had not been determined on its merits. In view of the husband’s deficient disclosure, the short hearing, and the judge’s erroneous view of jurisdiction, it was appropriate to remit the application. It may be pursued in accordance with the applicable procedural requirements, including those concerning the pension provider and any necessary evidence on the foreign element. The court also invited counsel to agree interim asset-preservation relief pending the rehearing.

• Court of Appeal (Civil Division): Allowed the husband’s appeal, set aside the mandatory transfer and income-payment provisions, and remitted the pension-sharing application.
• Central Family Court: HHJ Glenn Brasse ordered the husband to transfer or assign his beneficial interest in the Indian annuity policy to the wife and, pending transfer, to pay her its income.