New evidence after 2 years

My partner has just obtained via her daughter a copy of the will of her ex husbands mother, she was alive at the time of the final hearing but she unfortunatly died 6 months later.

Now that she has a copy of the will it turns out that her ex was a named executor and trustee of his mothers will dated 6 years before my partners divorce and final hearing along with her ex husbands brother, at the time of the divorce his mother lived with my partners ex husbands brother and his mothers house and assets had been sold and invested in an investment trust by my partners ex husband and his brother with the money to be shared 50/50 between my partners ex husband and his brother.

Requests by my partners solictor were made for info related to potential inheritence but my partners ex husbands solicitor stated in writing that he was not involved in any trust fund, probably based on lies by my partners ex husband, my partners ex husband did not declare this on his form E, can my partner appeal against this and have the division of assets changed, we are talking about him not declaring a trust investmemt of 50,000 pounds ??

We also know that my partner's ex bought himself a new sports car a few months after his mother died and the trust fund investment paid out.

Can someone legal please give some advice and best way to proceed without lots of expense.

PS My partner was married to her ex for over 16 years with children.

Libby,

At first as i read your post i wasnt sure u could do much now - after the event.

But this looks interesting...

Requests by my partners solictor were made for info related to potential inheritence but my partners ex husbands solicitor stated in writing that he was not involved in any trust fund,

Do you still have that letter written by the solicitor denying any involvement in a trust fund?
Do you also have documentation showing that he was in fact involved in the trust fund with his brother?

Because with these 2 items of evidence it looks to me like you would have a case to appeal the ruling.

I would take these two items of evidence to a solicitor (find one who does a free first 30 mins) and get a view on what legal options are open to you.

I think there is litttle hope for a challenge at this stage.

In A v B (Financial Relief: Agreements) [2005] 2 FLR 730, Black J dismissed an
appeal from a decision of Deputy District Judge Green at the PRFD, who had
dismissed H’s application for ancillary financial relief, brought approximately 7
years after the parties had separated and 4 years after the parties had entered
into a written Separation Agreement, purportedly in full and final settlement of
their prospective claims. The District Judge found that pursuant to that
agreement H had received approximately 45% of the available assets, excluding
the value of a property in Israel W had inherited and sold shortly after the
agreement.

Having considered the passages already cited from the judgment of Lord Nicholls
in White, as explained by Bennett J in Norris, Black J (paras [23] and [24]) similarly rejected the suggestion that Lord Nicholls had enunciated a fixed guideline that inherited property should be excluded from the ancillary relief exercise, and accepted that the impact of the fact that one party had acquired assets by inheritance would depend on all the circumstances of the particular case.
However, in keeping with the approach adopted by Charles J in Currey and by
Peter Hughes QC in H v H, she continued:
“I see no reason why, in an appropriate case, it would not be proper for the court to conclude that because of the circumstances of the acquisition of a particular asset, and in light of all the other circumstances of the case, it would be appropriate for the spouse who inherited the asset to retain it or the asset that now represents it or reflects it.”

Deputy District Judge Green had clearly had in mind that H could receive a fair
proportion of the assets sufficient for his needs without resorting to the inheritance and had taken account of the timing of the acquisition of W’s inheritance, which had only become available after the agreement was reached.
Miller v Miller

In Miller v Miller [2006] UKHL 24, the House of Lords revisited the question of
inherited or pre-acquired “non-matrimonial” property, from which the following
propositions can be summarised:

(a) the position regarding non-matrimonial property was summarised in White
v White [2001] 1 AC 596 at page 610c-g;
(b) in a short marriage fairness may well require that the claimant should not
be entitled to share in the other’s non-matrimonial property and the
source of the asset may be a good reason for departing from equality
(per Lord Nicholls at para 24);
(c) in a long(er) marriage the position is not so straightforward;
(d) sometimes as the years pass the weight fairly to be attributed to this
contribution will diminish but sometimes it will not;
(e) the weight to be attributed to modest savings brought in at the beginning
of a long marriage may differ from that to be attributed to a valuable
heirloom intended to be retained in specie (per Lord Nicholls at para 25);
(f) the fact, for example, that a family’s wealth consists largely of a family
business, such as a farm, may still be taken into account as a reason for
departing from full equality: see P v P (Inherited Property) [2005] 1 FLR 576
(per Lady Hale at para 148)
(g) so too may be the nature of the assets, where these are businesses which
will be crippled or lose much of their value, if disposed of prematurely in
order to fund an equal division: see N v N (Financial Provision: Sale of
Company) [2001] 2 FLR 69 (per Lady Hale at para 148 – this was a point
made generally not just by reference to inherited or pre-acquired “non matrimonial”
assets);
(h) to the non-exhaustive list set out in White might be added, as a relevant
matter, the way the parties have organised their financial affairs (ibid);

Finally, it ought in fairness now to be recorded that at para [135], Lady Hale
observed:

“In hindsight, White v White should have been a simple case. There was a long
marriage in which the couple had been partners in both senses of the term. Both
were farmers. There were two farms. Both wanted to carry on farming. One
solution might have been to give one farm to one and one to the other; at all
events the resources were such that each could have been enabled to farm
independently…Where the parties had collaborated, not only in the enterprise of
living together and bringing up their children, but also in the enterprise of making their living, as this couple had, why should only one of them be entitled to the surplus? In such a case, it is clear that the yardstick should be equal capital division, although factors such as the source of some of the assets might justify some adjustment.”

The answer to the question of whether in fact Mrs White would now get 50% to
include one of the farms (which is what she wanted) now seems fairly clear?

From the above cases the following general principles can be deduced:

(a) The court will not blindly divide assets in half in long marriages.
(b) The approach to be taken is that laid down in s.25.
(c) The status of inherited wealth differed from case to case depending on various
factors, including:

(i) When the funds were inherited [crucial here]
(ii) The degree to which funds inherited had been intermingled with
matrimonial funds.
(iii) The involvement of the non-inheriting spouse had had with the funds in
question.
(iv) The nature of the inheritance
(d) Inherited wealth is a contribution of one party and must be taken into account as such. It can be considered to be “unmatched”
(e) Inherited assets are not to be ring fenced however.
(f) The parties needs may dictate that inherited funds will have to be infringed.
(g) If the parties needs can be met without recourse to funds that have been
inherited kept separate then the surplus they represent should be allotted to
the party that inherited them.

Usually unless one can show a person is likely to inherit within 5 years the Court will ignore the assets. The deceased could have gone into a nursing home etc. argument. Question could at the time of the settlement it be said (without hindsight) she would have died within 5 years.

See the case of Barder v Barder ex parte Callouri about setting aside orders after a "new" event.

This is not in my view a "Barder" event either.

It is not a case I would spend my "hard earned" on...sorry to say.




500 up yipee!

CHANGE OF CIRCUMSTANCES

It quite often happens that after an order for ancillary relief has been made, the circumstances of one party (or of both parties) change in such a way that a change in provision may be appropriate. In this event, there are three ways in which a change can (sometimes) be made.

• The original order may be varied, using the court's powers under s.31 of the Matrimonial Causes Act 1973. This is impossible in relation to property transfer and lump sum orders (except in relation to lump sums payable by instalments), but can be done with maintenance pending suit or (more commonly) with periodical payments. The court looks again at the whole situation, not just at the circumstances that have changed, and makes its decision accordingly.

Flavell v Flavell [1997] 1 FLR 353, CA
Following divorce, an order was made for two years' periodical payments to W. W later applied for a variation, and the judge extended the order indefinitely. H's appeal was dismissed: Ward LJ said the jurisdiction to vary does not depend on an exceptional or even a material change in circumstances. Obiter, it is not usually appropriate to terminate periodical payments for a woman in her mid-50s unless she has substantial capital and significant earning capacity.

• The dissatisfied party may lodge an appeal against the original order, or (where no appeal was lodged within five working days of the original order) seek leave to appeal out of time. Leave is unlikely to be granted unless there has been a significant change in the value of property included in the order, or one of the parties to the order has remarried or died unexpectedly shortly after the order was made.

Barder v Barder [1987] 2 All ER 440, HL
When H and W divorced, a Consent Order was made under which (inter alia) H was to transfer to W his half-share in the matrimonial home. Four weeks later W killed both their children and then herself, and H sought leave to appeal out of time to have the order set aside. The House of Lords gave leave and set aside the order, but stressed that leave should not be granted unless the new events had invalidated the fundamental basis of the original order (making an appeal very likely to succeed), they had occurred within a relatively short time (probably less than a year) of the original order, the application for leave had then been made promptly, and there would be no prejudice to the interests of third parties who had acquired property in good faith for valuable consideration.

Hope-Smith v Hope-Smith [1989] 2 FLR 56, CA
When H and W divorced, an order was made that H pay W a sum of ý32k out of the proceeds of sale of the matrimonial home, then valued at ý120k but subject to a mortgage of about ý30k. H delayed in selling the house, and when it was actually sold it its value had risen to ý200k. Two years after the original order W sought leave to appeal against it, and the Court of Appeal (applying the Barder principles) granted leave and substituted an order that W receive 40 per cent of the net proceeds of sale.

Smith v Smith [1991] 2 All ER 306, CA
H and W divorced and H was ordered to pay W a lump sum of ý54k in full and final settlement. When W committed suicide six months later, leaving her whole estate to her daughter D, H sought leave to appeal out of time against the original order. The Court granted leave, and said W's death so soon after the divorce invalidated the basis on which the original order had been made. But a new assessment should take account of W's contribution to a long marriage as well as H's continuing needs, and the destination of a dead spouse's estate was irrelevant: an appropriate figure in the new circumstances would be ý25k.

Barber v Barber [1993] 1 FLR 476, CA
At the time of divorce W was already ill and had a life expectancy of about five years; in fact she died only three months later. The Court granted H's application for leave to appeal out of time against the financial provision order: W's death had nullified the whole basis of the order, which had been designed to give W sufficient capital to obtain accommodation in which the children (normally resident with H) could visit her from time to time.

S v S (Financial provision) [1994] 2 FLR 228, Douglas Brown J
Shortly after their divorce, W returned to H and resumed her duties as wife and mother, but H and W never formally remarried. When they separated again, the judge granted leave to appeal out of time against the original order, which (he said) had clearly been overtaken by circumstances.

• The dissatisfied party may seek to have the original order set aside, either impugning its validity by reference to some factor which existed at the time it was made (e.g. duress, fraud, non-disclosure or mistake), or because some unforeseen event (such as a death in the family) has invalidated the basis on which it was made. In Barder v Barder (above) an application for leave to appeal out of time was coupled with an application to set the order aside, but applications to set aside are probably most common where a consent order is allegedly vitiated by non-disclosure.

Livesey v Jenkins [1985] 1 All ER 106, HL
This case is discussed above. The House of Lords said the importance of encouraging a Clean Break after divorce meant that orders for financial provision and property adjustment should not be lightly set aside, and failure to disclose a material fact was not in itself sufficient reason to set aside an order. Only where the absence of full and frank disclosure had led the court to make an order substantially different from that it would otherwise have made should an order be set aside.

When making orders for financial provision or property adjustment, either initially or on a subsequent application for variation, the court takes account of the fact (if it is the case) that a party has married or is cohabiting with a new partner. The assets and income of the new partner are irrelevant in relation to the parties' financial resources (see Macey v Macey at page 75 above), but they may be relevant in determining the parties' needs.

Suter v Suter & Jones [1987] 2 All ER 336, CA
The facts are set out above. The Court of Appeal reduced H's periodical payments from ý100 a month to ý1 a year, expressly taking into account the fact that W was cohabiting with C and the expectation that C would contribute towards their joint household expenses.

Duxbury v Duxbury [1987] 1 FLR 7, CA
H and W enjoyed a wealthy lifestyle during 22 years of marriage. When they divorced, the judge sought to achieve a clean break and ordered H to pay W a lump sum of ý60k in addition to the matrimonial home. H appealed, arguing that so large a sum would benefit not only W but the man she was now living with. His appeal failed: it was common ground between the parties that their conduct was not to be considered, and H was a millionaire who could easily afford to meet the payment.

Periodical payments automatically come to an end if the recipient remarries, but not if he or she enters into cohabitation. This distinction has been attacked as providing a strong disincentive to marry, though a settled decision not to remarry so as to avoid loss of maintenance might well be "conduct that it would be inequitable for the court to disregard".

Atkinson v Atkinson [1987] 3 All ER 849, CA
H applied for the discharge of a periodical payments order in favour of W, who had entered into long-term cohabitation with another man X. The judge reduced the order from ý5000 to ý4500 per year, and H appealed. Dismissing the appeal, Waterhouse J said cohabitation is not the same as marriage, and (subject to the possibility that her conduct might be such that it would be unjust to disregard it) the court would not impose an unjustified fetter on an ex-wife's freedom to live her life as she chooses following divorce.