Kay Jacqueline Butler v Earl Anthony Butler

In a financial-remedies appeal, identifying a case as one governed by needs does not require the court to satisfy both parties’ needs. The court must consider all the circumstances and the matters in section 25(2) of the Matrimonial Causes Act 1973, giving greater weight to some factors where appropriate. This includes the parties’ respective housing needs, the source and character of assets, the length of the marriage, age, debts and practical consequences of the proposed order. Non-matrimonial property may be invaded to meet needs, but an order making the asset-holder homeless may be rejected as unrealistic or unfair. An appellate court will not interfere merely because it might have exercised the discretion differently; intervention requires an order that was not reasonably available to the first-instance judge.

The Wife appealed against an order made by Recorder Anderson in the Family Court at East London on 1 September 2022. The Recorder ordered the Husband to pay her a lump sum of £58,000 on a clean-break basis, with provision for sale of his property if payment was not made.

Permission to appeal was granted on two grounds. The Wife argued that the Recorder had failed to meet her housing needs and had failed to take judicial notice of lower property prices in Birmingham. Permission was refused on a third ground concerning the finding that the marriage had effectively ended in 2009. The central issues were whether the Recorder was required to make an order satisfying the Wife’s needs and whether his decision was one which was unavailable in the exercise of his discretion.

1. Appeal dismissed. The Recorder’s order was not wrong and was an order he was entitled to make.
2. The appellate test was whether the order was one that no judge, properly directing himself or herself, could have made. Permission to appeal did not guarantee success. The appeal was confined to review under rule 30.12 of the Family Procedure Rules 2010.
3. The classification of the case as a needs case did not require an order satisfying both parties’ needs. Resources might be insufficient to meet either party’s needs, or only barely sufficient to meet them. Needs could not be treated as the sole consideration.
4. The court had to consider all the circumstances and the section 25(2) checklist in the Matrimonial Causes Act 1973. Relevant matters included the Wife’s vulnerability and housing insecurity, the Husband’s needs, the short duration of the marriage, the lengthy period since separation, the non-matrimonial origin of the Husband’s property, his age and debts, and the practical consequences of any order.
5. The Recorder was entitled to reject proposals which would probably make the Husband homeless. The Wife’s proposed three-quarter share of the property was unrealistic. The Birmingham proposal was unsupported by a credible plan or evidence and was not pursued. The later retirement-property proposal required more capital than the Husband could reasonably raise and would probably force a sale of his home.
6. The Wife’s evidence and arguments did not establish that a larger lump sum could fairly be ordered. The existing award represented an invasion of non-matrimonial property to meet needs, while preserving a realistic prospect of housing both parties.

1. High Court (Family Division) — The appeal against Recorder Anderson’s order of 1 September 2022 was dismissed.
2. Family Court at East London — Recorder Anderson ordered payment of a £58,000 lump sum on a clean-break basis, with provision for sale of the Husband’s property in default.
3. Permission to appeal — Morgan J granted permission on Grounds 1 and 2 on 7 June 2023, but refused permission on Ground 3.