Alireza v Radwan & Ors

Under the Matrimonial Causes Act 1973, a prospective inheritance is ordinarily too uncertain to be a foreseeable financial resource. Forced-heirship rules can make it a resource, but that finding only requires the court to take it into account; it does not justify making present housing needs depend on an inheritance expected many years later. A parent’s past support does not relieve the former spouse of primary responsibility without evidence of a likely immediate or foreseeable advance. Where resources permit, a time-limited occupation order should not leave the recipient without capital, particularly where autonomy, contribution, conflict and child welfare require careful assessment.

The wife appealed against an order made by Mrs Justice Roberts on 4 August 2016 following the breakdown of a 14-year marriage. The wife had no earning capacity and cared for three children, one of whom had significant learning disabilities. The husband had substantial inherited resources and earning capacity.

The judge awarded £2m by way of capitalised maintenance and made child-related orders, but provided housing through time-limited occupational interests in two flats. The wife challenged the treatment of her prospective inheritance under section 25(2)(a) of the Matrimonial Causes Act 1973 and the refusal to award a lump sum sufficient to purchase a home in her own name.

The Court of Appeal unanimously allowed the appeal and remitted the housing issue for reconsideration. The agreed £2m capitalised maintenance award was not challenged.

1. Statutory framework. Section 25 of the Matrimonial Causes Act 1973 requires consideration of all the circumstances. The statutory factors have no hierarchy, and describing a case as one of needs does not displace relevant factors. The welfare of minor children remains the first consideration.
2. Prospective inheritance. In the ordinary case, uncertainty about whether and when an inheritance will arise prevents it being treated as a foreseeable resource, following the approach in Michael v Michael [1986] 2 FLR 389. Forced-heirship rules may nevertheless give an inheritance sufficient certainty to qualify as a section 25(2)(a) resource. That conclusion only requires the court to take the inheritance into account. It does not make it appropriate to defer present housing needs until the inheritance is received.
3. Parental assistance. The father’s financial assistance did not, without more, establish that he had assumed long-term responsibility for the wife or that the assistance was a Thomas v Thomas [1995] 2 FLR 668 resource. The relevant question was whether capital was likely to be advanced immediately or in the foreseeable future, applying the formulation in Charman v Charman No 4 [2007] EWCA Civ 503. English law applied, and the primary responsibility for meeting the wife’s needs remained the husband’s.
4. Housing provision. Before making a Mesher-type order which ties former spouses together, the court must give careful and specific consideration to autonomy, contributions, likely conflict, child welfare and the practical consequences of continued dependence on the former husband’s family. The guidance in Tattersall v Tattersall [2013] EWCA Civ 77 reinforced the importance of conflict and the primary carer’s contribution. The judge had focused too heavily on preserving the family arrangement and had failed to give sufficient weight to the husband’s liquid resources, the wife’s contribution, her need for capital and the restrictive terms of the occupational order.
5. Remittal. As the judge had made no finding on the appropriate housing fund, the Court of Appeal did not substitute its own figure. The matter was remitted for reconsideration of the lump sum required to house the wife and children.

1. Court of Appeal (Civil Division) — Appeal allowed. The housing issue was remitted for reconsideration of the lump sum required in addition to the agreed £2m capitalised maintenance.
2. High Court (Family Division) — Mrs Justice Roberts ordered capitalised maintenance and related child provision, together with time-limited occupational interests in the former matrimonial home and a staff flat.