Amita Rattan v Tushar Kuwad
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lady Justice Asplin,Lady Justice Macur |
| Judgment Date | 11 January 2021 |
| Neutral Citation | [2021] EWCA Civ 1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B6/2020/0235 |
| Date | 11 January 2021 |
[2021] EWCA Civ 1
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL FAMILY COURT
HHJ OLIVER
BV19D08227/ZC19F04012
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Macur
Lord Justice Moylan
and
Lady Justice Asplin
Case No: B6/2020/0235
The Appellant Wife in Person
Mr J Swift (instructed by Fletcher Day Ltd Solicitors) for the Respondent Husband
Hearing date: 2 nd December 2020
Approved Judgment
This is a second appeal. The wife appeals from the order made on 6 th January 2020 by His Honour Judge Oliver (“the Judge”) by which he allowed the husband's appeal from a maintenance pending suit order of £2,850 per month made by Deputy District Judge Morris (“the DDJ”) on 1 st October 2019.
The Judge set aside the order principally on the basis that the DDJ had “failed to apply the law appropriately” in that she had not undertaken any “critical analysis of the wife's needs”, in particular as to which items included by the wife comprised her “immediate expenditure needs”. In addition, although the Judge was “sure there is a need for maintenance”, he did not consider that he was in a position to determine what alternative amount should be ordered.
This case has a very regrettable procedural history. This probably, in part, reflects the fact that the wife has been acting in person. However, it is an understatement to say that this appeal has not been addressed with appropriate expedition. Delays occurred in the required documents being filed but, in hindsight, this should not have delayed the progress of the appeal for as long as they did. In addition, the final financial remedy hearing has been very substantially delayed making the issue of maintenance pending suit even more significant than it might otherwise have been.
The wife's grounds of appeal raised a broad range of issues. I gave permission to appeal because I was persuaded that the appeal raised an important point of principle as to the approach which the court should take to the determination of an application for maintenance pending suit. I was also persuaded that the wife's appeal had a real prospect of success in respect of her challenge to the Judge's decision that the DDJ's assessment was flawed.
For the reasons set out below, I consider that the wife's appeal should be allowed.
I am grateful to the wife and to Mr Swift for their respective submissions.
Background
The parties married in 2009. The husband is aged 44 and the wife is 42. There are two children of the family; the wife's child by a previous marriage, aged 17, and the parties' child aged 9.
When the parties met, the wife was living in Canada where she worked for a construction company in their accounts department. In 2010, the wife and her child joined the husband in England. During the marriage, the husband worked as an IT consultant and provided his services through a corporate vehicle. The wife requalified as a teacher. She worked as a teacher for a year during the marriage and has done so since shortly after the parties separated.
The parties separated in March 2019 when the husband left the former matrimonial home. After a brief period, when the parties' child lived with the father, the mother and the children have remained living in the former matrimonial home.
The wife commenced divorce and financial remedy proceedings in April 2019.
Proceedings
I do not propose to set out the history of the financial remedy proceedings which effectively started with an application by the wife for a freezing order. At a hearing on 26 th April 2019 in respect of that application, the husband was ordered to pay the wife the immediate sum of £5,000 “to enable her to meet” her and the children's living expenses. The husband paid this sum in early May 2019.
The wife applied to the Child Maintenance Service which assessed the husband as liable to pay the sum of £16.60 per week.
On 11 th July 2019 the wife applied for maintenance pending suit, including an order in respect of school fees. This was supported by a statement in which she set out her income needs which replicated the needs she had set out in her Form E and totalled just under £4,900 per month. Of this sum, the mortgage instalments for the former matrimonial home represented £2,500. After deducting her anticipated income, the wife set out an ongoing monthly income “shortfall” of £2,830. She sought higher sums in respect of August and September when she would not be employed. In addition, she sought school fees for the younger child of £650 per month. The wife also sought additional sums to pay for, what she described as, “essential repairs to the house such as heating, hot water, stove fan, oven” and other items at a total cost of £3,250.
The wife set out that the husband worked as a software consultant. He had set up a company in 2011, of which they were both shareholders, and he received “a high level of salary and dividends”. She also said that the husband had transferred a total of £285,000 from his company to India between April and June/July 2019.
The First Appointment took place on 19 th July 2019. The wife's application for maintenance pending suit, with some other applications, was adjourned to be listed on the first available date after 6 th September 2019 with a time estimate of one day. The husband was ordered to file and serve a statement in response to the wife's maintenance pending suit application, “in particular setting out his current income and expenditure”, by 4.00pm on 23 rd August 2019.
The first date provided by the court for the maintenance pending suit hearing was 14 th November. The wife's then solicitors contacted the court and, on 16 th September, were able to obtain the earlier date of 1 st October 2019. The wife's solicitors immediately informed the husband's solicitors of this new date and pointed out that the husband had not filed his statement in response to the wife's application which was “urgently” required. The husband's solicitors replied complaining about the short notice and saying that their client “does not have a job and is simply accruing personal debts to pay his living costs”.
The husband's statement is dated 30 th September 2019. He said that his job with a named company had “come to an end” on 30 th August and that he had received no income since then. He set out his outgoings which totalled approximately £4,500 per month, including rent of £1,500. He also said that he owed his brother £250,000 and had “director loan debts” of £300,000. In respect of the wife's “comment about the fact that I have money in India”, he said that: “I further understand the funds I sent back have been utilised to partly pay my brother's many creditors for my obligations. I do not have any other source of funds or savings”.
At the hearing on 1 st October 2019, which lasted the whole day, the wife was represented by counsel and the husband appeared in person. In her written submissions for the hearing, the wife's counsel set out a summary of the law which included that the “focus” of the application was to meet “immediate needs”. Reference was made to Moore v Moore [2010] 1 FLR 1413; TL v ML and Others (Ancillary Relief: Claim against Assets of Extended Family) [2006] 1 FLR 1263; and Re G (Maintenance Pending Suit) [2007] 1 FLR 1674.
The DDJ refused the husband's application for an adjournment. In her judgment, she briefly summarised the background and noted that she had been referred to the “well-known law in terms of maintenance pending suit”.
When dealing with the wife's budget, the DDJ addressed the mortgage instalments payable for the former matrimonial home. This issue had been addressed during the course of the hearing. The DDJ recorded that, as part of her order, the then mortgage on the former matrimonial home would be changed to a fixed rate mortgage with the consequent saving of approximately £600 per month. The husband “had been reluctant to agree” to this change because it would incur a penalty charge but “some very quick calculations” during the hearing had demonstrated that, even with the penalty charge, more would be saved by changing the mortgage to a fixed rate. This would reduce the maintenance pending suit sought by the wife to £2,200 per month.
The DDJ set out that the husband “is a skilled and experienced IT consultant” who “now says that he cannot work”. The wife did not accept that he “is not in employment or cannot work” and she pointed to the fact that he had “sent over £360,000 to India” in the 10 months to April 2019. The husband accepted that he had received £246,000 from the sale of properties “of which he sent £181,000 to his brother” and kept £65,000 in his company “but that company is now not producing any money”. The DDJ noted that the husband “did not actually deal with the allegation that a total of £360,000 had been sent to India” but he did say “that a lot of the problems of the company and the problems with him working were because of conduct of the wife”.
In respect of the husband's income needs, the DDJ said that the rent could be saved “because there is a second property” which was no longer occupied by tenants and which was “available for the husband to move into”.
The DDJ rejected the wife's claim for the sum of just over £3,000 in respect of “essential repairs” because there was “nothing before me to indicate what needs to be done or the cost of doing so”.
As to the husband's position, the DDJ found that his “case is not...
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