Meerna Ali Ghuloom Faraj v Sohail Sultan Ahmad & Anor

Where a party relies only on litigation misconduct through non-disclosure, it need not plead a conduct case under Matrimonial Causes Act 1973, section 25(2)(g). The court may draw justified adverse inferences when computing resources, while litigation misconduct will ordinarily be addressed in costs. A departure in substantive distribution is exceptional and requires an identifiable financial consequence.

A party must put a material challenge to a witness in cross-examination unless fairness does not require it. A judge cannot uphold findings based on a case first advanced in closing submissions where the witness had no opportunity to answer it. A judgment must also address compelling contrary evidence. Where procedural unfairness and inadequate reasons affect central factual issues, the proper remedy is a full retrial rather than preserving selected findings.

These financial remedy appeals arose from the Family Court judgment of Sir Jonathan Cohen, [2023] EWFC 209. The husband was ordered to pay the wife a lump sum of about £6 million after the judge found that he had substantial funds in disputed bank accounts. The judge also rejected the wife’s case that a Forward Acquisition of Property agreement concerning the former matrimonial home was a sham.

The husband challenged the disputed-accounts finding on procedural fairness grounds. The wife sought an extension of time and permission to cross-appeal the finding on the Forward Acquisition of Property agreement. IIB Group Holdings WLL, the company said to hold the beneficial interest in the home, challenged an order requiring it and the wife to endeavour to agree replacement housing terms.

The central issues were whether the trial had been fair, whether the factual findings were adequately reasoned, and whether the court could compel a third party to continue towards an unagreed housing arrangement.

1. All three appeals were allowed. The wife was granted an extension of time and permission to pursue her cross-appeal. The husband’s application to adduce fresh evidence was refused because that evidence had been available at trial.

2. The wife did not need to plead non-disclosure as conduct under section 25(2)(g) of the Matrimonial Causes Act 1973. Applying the approach in Moher v Moher [2019] EWCA Civ 1482, the court could draw proper adverse inferences when computing resources. Non-disclosure ordinarily remains litigation misconduct, to be addressed by costs. A substantive adjustment for conduct is exceptional and requires an identifiable financial impact.

3. Nevertheless, the husband’s appeal succeeded because the wife’s ultimate case—that the disputed accounts contained personal funds available to him—was not put to him in cross-examination. Applying Tui UK Ltd v Griffiths [2023] UKSC 48, this was a fundamental breach of trial fairness. The husband had no opportunity to answer the case adopted in closing submissions, and the judge was denied the opportunity to assess that answer.

4. The wife’s cross-appeal also succeeded. The first-instance judgment failed adequately to address compelling evidence bearing on whether the Forward Acquisition of Property agreement was a sham. Applying Simetra Global Assets Ltd v Ikon Finance Ltd [2019] EWCA Civ 1413, the court held that a concise judgment must still show that material contrary evidence has been considered and explain why it is rejected.

5. The Bank’s appeal succeeded. Although statutory powers may in an appropriate case permit orders relating to property, the court could not require the Bank to endeavour to agree housing terms with the wife or adjudicate unresolved terms where no concluded agreement existed. An agreement to agree was not enforceable. The welfare of the minor child under section 25 remained important but created no legal duty on the Bank to provide housing.

6. Following Serafin v Malkiewicz [2020] UKSC 23, the serious unfairness could not be remedied by retaining selected factual findings. All findings were set aside, the matter was remitted for a complete rehearing before another High Court judge, and the restriction on the title to the former matrimonial home was to remain pending determination.

• Court of Appeal (Civil Division) — the husband’s, wife’s and IIB Group Holdings WLL’s appeals were allowed. The financial remedy proceedings were remitted for a full rehearing before another High Court judge: [2026] EWCA Civ 962 .
• Court of Appeal (Civil Division) — in connected proceedings, the husband’s appeal against a legal services payment order was dismissed, subject to a Hadkinson order which would have dismissed his appeal if he had not paid £120,000: [2025] EWCA Civ 468 .
• Family Court — Sir Jonathan Cohen made a lump-sum order against the husband, rejected the wife’s sham case concerning the Forward Acquisition of Property agreement, and made provision requiring IIB and the wife to endeavour to agree housing terms: [2023] EWFC 209.