Crowther v Crowther [2017] EWCA Civ 2698

The case concerned an appeal by the husband following a decision at first instance to award the wife the FMH worth £200,000, the only asset of any value in the case. The Judge held that: first, any less than 50% would be insufficient for the husband as he could not live independently; second, to award him 50% would be unfair as the property was entirely the wife’s contribution. The Court of Appeal allowed the appeal and remitted the matter for a rehearing. It found that the line of questioning initiated and pursued by the trial Judge on behalf of the wife (who was a litigant in person), namely that the husband could not live independently, was a new point. Therefore, it was unfair to the husband that it was raised without any prior warning.

The only notable asset was a house worth £200,000 purchased with money she had inherited from her parents and where she lived. The wife’s case was that she did not want to move from the home in which she had lived for a long time and, regardless, it was her inheritance. The husband’s case was that he needed £100,000 purchase a flat and live independently.

There were several complicating factors in the case. First, both parties were vulnerable in terms of their psychological and mental health [2]. Second, the wife was acting as a litigant in person (the husband was represented) [2]. Third, the wife’s preparation and presentation of her case was pre-occupied with her recent difficult experiences and the husband’s behaviour [3]. Fourth, the husband was physically disabled and he lived with, and was supported by, his elderly parents [4].

The court noted that at first instance the Judge questioned the husband extensively on whether he could live independently (26 pages of the transcript) [6].

The Judge’s conclusions were as follows: first, it was a case about both the needs and contributions of the parties [7]; second, the wife contributed solely to the family home [8]; third, the wife was vulnerable and would struggle mentally if she had to move [8]; fourth, the husband was, and always had been, dependent on others and there was no evidence that he was able to function independently [9]. Therefore, the Judge found that granting the husband less than 50% would not “serve any useful function”, but to grant him 50% would not “reflect the contribution which [the wife] made from her family” [9].

On appeal, the husband made the submission that the way in which the Judge introduced the question of whether the husband could live independently was unfair and improper. The husband accepted that the court must have regard to “any physical or mental disability” of the parties, under s25(2)(e) of the Matrimonial Causes Act 1973, but argued that it was not fair for the husband to have to consider and respond to this argument for the first time in the witness box [11].

The husband also accepted that the Judge had a duty to assist the wife as she was a litigant in person, under s31(G)6 of the Matrimonial and Family Proceedings Act 1984, but he argued that the Judge went too far in his questioning of the husband. Instead, the husband said, the Judge could have flagged the issue in his preparation of the case and then heard evidence from the husband’s parents [11].

In response, the wife confirmed that her case had not been that the husband could not live independently, rather that if he wished to do so he could seek council accommodation or housing benefit [13].

The appeal was allowed and the case was remitted for a rehearing. The court noted the difficulty in conducting a case and achieving a fair outcome when one party is represented and the other is not [12]. However, it found that the issue of independent living was raised for the first time by the Judge and: “the judge’s questioning did unfortunately go beyond simply assisting the litigant in person to present her case, which was on a different basis, and that the process inadvertently was unfair because there had been no advance warning of the point being raised for the husband to take steps to present his case in order to meet it. That, to my mind, determines the appeal.” [14].

The court determined that it could not decide the issue on the evidence [16] and therefore decided “with a heavy heart” the matter needed to be reheard. However, in order that the wife would be properly represented, the court found the case merited exceptional funding from the Legal Aid Agency [17].