Briers v Briers

In financial remedy proceedings, delay does not extinguish entitlement or impose a presumption that an applicant receives nothing unless need is proved. The court must undertake its inquisitorial assessment, considering delay, its explanation and effect alongside entitlement, need and the character of the assets. Where a business remains an undivided matrimonial asset, post-separation growth may remain relevant and current valuation may be appropriate. An alleged full and final settlement may fail where material disclosure, required for informed advice and made a condition of settlement, was not provided. Unquantified or uncrystallised tax liabilities may be addressed by cross-checking the overall distribution. Appellate courts should respect first-instance factual findings based on witness assessment unless they are unsustainable.

The parties divorced in 2005 after negotiations concerning their finances. The husband paid £150,000, transferred the former matrimonial home to the wife, and the wife transferred her share in the business to the husband. No order concluded their financial affairs. In 2013 the wife applied for financial remedy orders.

The Family Court found that no full and final settlement had been reached because the husband had not provided full disclosure. It treated the business as an undivided matrimonial asset and ordered the husband to pay £1.6 million by instalments, together with transfers relating to his Standard Life pension, policy and shares. The husband appealed, seeking an order limited to £500,000. The central issues were whether an agreement had been concluded and whether the award properly addressed delay, entitlement, post-separation accrual, valuation, contributions, future disposal and potential tax liabilities.

The appeal was dismissed. Sir Ernest Ryder, Senior President, delivered the judgment, with Lord Justice Lindblom and Lady Justice Rafferty agreeing.

1. The challenge to the alleged 2005 agreement was principally factual. The appellate court should respect the first-instance judge’s assessment of oral and written evidence and the judge’s impression of the witnesses. The judge’s findings were not perverse or unsustainable. Applying the emphasis in Radmacher v Granatino [2010] UKSC 42, [2010] 2 FLR 1900, on each party having material information for an agreement, the absence of the disclosure consistently required by the wife supported the conclusion that no full and final settlement had been reached.
2. Delay was a significant factor, but it did not abrogate or curtail the court’s function on a financial remedy application. The court’s assessment remained inquisitorial and evaluative. Delay, its explanation and effect, together with prejudice and the wider statutory context, could reduce the award, but did not impose a burden requiring the applicant to prove need before receiving any distributive remedy. The approach identified in Wyatt v Vince [2015] UKSC 14, [2015] 1 FLR 972, was properly applied.
3. Because the business remained an undivided matrimonial asset, delay did not exclude consideration of the wife’s entitlement to post-separation accrual. The court could weigh marital acquest, post-separation contributions, entitlement and need. The husband’s work and risk after separation did not automatically remove the wife’s interest. Current valuation was appropriate; a separation valuation increased by the retail prices index would have materially devalued that entitlement. The court found assistance in Cooper-Hohn v Hohn [2014] EWHC 4122 (Fam), [2015] 1 FLR 745.
4. The husband’s intention to retain the business or pass it to the children did not prevent redistribution of the matrimonial assets. Potential tax liabilities were properly considered even though one was unquantified and probably would not arise, and the other had not crystallised. The judge’s cross-check that the award would remain appropriate if either liability materialised disclosed no error. The findings of fact and the application of the section 25 factors under the Matrimonial Causes Act 1973 were unassailable.

1. Court of Appeal (Civil Division) — On 25 January 2017, the court dismissed the husband’s appeal: [2017] EWCA Civ 15.
2. Family Court at Birmingham — On 6 May 2015, His Honour Judge Rogers made a financial remedy order requiring payment of £1.6 million by instalments and transfers relating to the husband’s pension, policy and shares.