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As a family lawyer who spent most of his time dealing with cases involving clients of ‘ordinary’ means, it is nice occasionally to come across the report of a financial remedies case in which the parties do not belong to the ‘mega rich’ class (of course reported cases are more likely to involve the mega rich, as they can better afford the cost of taking their cases to the higher courts, where the judgment is more likely to be reported). The Court of Appeal decision in Crowther v Crowther, which was handed down in February 2017 but has only recently been reported on the Bailii website, was such a case.

The case concerned an appeal by the husband against an order that the wife retain the former matrimonial home, the only capital asset of the marriage, which had been purchased entirely from an inheritance that the wife had received from the estate(s) of her late parents. The case is not just of interest for what was decided, it also acts as a further demonstration of the difficulties that can arise as a result of legal aid not usually being available in financial remedies cases.

I don’t need to spend much time setting out the facts of the case. The parties were married for about ten years, before they separated. The property was purchased about half way through that period. At the time of the final financial remedies hearing it was valued at about £200,000, and was mortgage free.

After the separation the wife continued to live in the property, which has four bedrooms, along with her adult daughter from a previous relationship, and that daughter’s partner. The husband was living in his parent’s home.

A complicating factor was that both the husband and the wife were found to be vulnerable, in terms of their psychological and mental health. In fact, the wife’s mental condition led to concerns as to whether she had capacity to conduct the litigation. The husband, meanwhile, appeared to be physically disabled, although medical experts found very little physical explanation for his apparent disability, and that there was a very significant element of ‘functional overlay’.

The husband was fully represented at the hearing, and the wife was a litigant in person. The husband argued that the matrimonial home be sold, that the net proceeds be divided equally, and that that would provide each party with sufficient to rehouse themselves. The wife argued that the husband was not entitled to any claim on the house because it represented her inheritance from her parents, and that if he wanted to live independently, the husband could easily fund it by either obtaining council accommodation, or through housing benefit. He did not therefore need any capital from the house.

The hearing was conducted by His Honour Judge Tolson QC. He of course was put in the difficult position of trying to ensure fairness between one party who was represented, and one party who was not. To achieve this he undertook questioning of the husband, effectively on behalf of the wife. The questioning was extensive, and as a result of it Judge Tolson formed the opinion that the husband was unlikely to be able to live independently. This had not been part of the wife’s case. Nevertheless, it was a primary reason for him concluding that receiving a half share of the property would not actually meet the husband’s needs. Accordingly, he ordered that the wife should have the property.

The husband appealed, to the Court of Appeal. Giving the leading judgment Lord Justice McFarlane found that the process adopted by Judge Tolson had been unfair to the husband. The husband should have been given advance warning that the issue of whether he was able to live independently would be raised, so that he could take steps to present his case in order to meet it. He had been given no such warning, and that determined the appeal, irrespective of any issue of whether Judge Tolson had wrongly put the issue of contribution (i.e. the wife funding the property out of her inheritance) above the issue of the parties’ needs.

Accordingly, the husband’s appeal was allowed, and the case was sent back to the family court to be heard again. Lord Justice McFarlane expressed the wish that the wife should be represented, the case in his view being sufficiently complex to justify exceptional legal aid funding.

As I said earlier, the case is a demonstration of the difficulties that can arise as a result of legal aid not usually being available in financial remedies cases. It also shows that that can lead to unfairness not just to the party who is unable to obtain legal representation, but also to the other party.

The full judgment can be read here.

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