Finch v Baker

In a financial remedy appeal, the court’s powers are exercised broadly and discretionarily. A pension sharing order need not achieve mathematical precision because implementation may occur later, on recalculated pension values and different annuity rates. An appellate court may uphold a decision based on the evidence available below even where later evidence suggests that the order may have a different practical effect.

Further evidence should ordinarily be sought and adduced before the substantive appeal is determined. A judge may refuse evidence first sought after a draft judgment, particularly where the issue had previously been raised and the parties had accepted that the appeal would proceed on the existing evidence. Exceptional additional evidence may sometimes be justified, including tax evidence needed to structure an order efficiently.

The parties, who had been married and had two children, separated after a long relationship. The wife had substantial assets, including a valuable BBC pension, while the husband had limited pension and capital resources. The District Judge treated the assets as matrimonial property and made a financial remedy order giving the husband a substantial lump sum and a 48.6% pension share.

The wife appealed. The Family Court judge, exercising the appeal as a review, reduced the lump sum and the pension share to 34%. The wife appealed to the Court of Appeal, seeking to rely on updated pension and tax evidence and challenging the assessment of needs, the treatment of post-separation increases, and the pension share. The central issues were whether the judge was wrong to refuse further evidence and whether the order was unjust because of serious procedural or other irregularity.

1. Appeal dismissed. The wife could not reopen arguments on conduct or contributions for which permission to appeal had been refused. Conduct was relevant only under Matrimonial Causes Act 1973, section 25(2)(g), and an alleged negative contribution could not be used as a different label for conduct.
2. Once the District Judge had determined that conduct was irrelevant and that the assets were no more than sufficient to meet the parties’ and children’s needs, needs, rather than sharing, was the determinative principle. The assessment of needs and the distribution of capital were plainly open to the appellate judge. The post-separation increase issue was therefore subsumed by needs.
3. An appeal was limited to a review unless a rehearing was required in the interests of justice. The appeal court would not ordinarily receive evidence which was not before the lower court: rule 30.12 of the Family Procedure Rules 2010. No timely application had been made before the appeal judge, and the wife had expressly accepted that the decision would be made on the existing evidence.
4. The appeal judge was entitled to refuse an updated pension report first sought after circulation of his draft judgment. On the evidence then before him, the award achieved the intended outcome. Later pension values could have required a broader reconsideration of needs and distribution, rather than a simple recalculation of the percentage share.
5. Pension sharing orders inevitably involve delay before implementation. The order takes effect only after the relevant divorce or nullity order and the applicable appeal period, and implementation occurs within a period in which the person responsible for the pension selects the valuation day. The pension’s value may therefore differ from the figure used by the court. The court’s discretionary jurisdiction does not ordinarily require mathematical precision.
6. The Court of Appeal refused permission to admit the new evidence at that stage. It also rejected arguments for alternative orders, including attachment of income, because they had not been advanced below. The appeal judge’s decision was not shown to be wrong or unjust because of serious procedural or other irregularity.

1. Court of Appeal (Civil Division) — [2021] EWCA Civ 72: appeal dismissed.
2. Family Court sitting at Bristol — order of 18 November 2019: allowed the wife’s appeal from the District Judge and reduced the husband’s lump sum and pension share to 34%.
3. Family Court, District Judge Watkins — order of 9 January 2019: awarded the husband a lump sum of about £814,000 and a 48.6% pension share.