Smith v Smith [2007] EWCA Civ 454 (15 May 2007)

Smith v Smith [2007] EWCA Civ 454 (15 May 2007)

The District Judge erred in starting from a 50/50 division where all assets originated from the husband and the marriage was of moderate length, in transferring business premises to the wife while leaving the trading business with the husband, in double-counting income by awarding both capital and periodical payments based on the same asset, and in failing to properly account for debts, indemnities, and tax liabilities. The Circuit Judge failed to address these specific criticisms. The appeal was allowed, the orders below were set aside in part, and a clean break was ordered with revised terms for transfer of shares and periodical payments.

Citation
[2007] EWCA Civ 454
Parties
Appellant: Anthony Smith; Respondent: Heather Ann Smith
Jurisdiction
England and Wales
Judgment Date
15 May 2007
Procedural Posture
Appeal (ancillary Relief/financial Remedy) / Court of Appeal Judgment on Appeal From Circuit Judge, Who Heard Appeal From District Judge
Outcome
Appeal allowed; orders of Circuit Judge and District Judge set aside in part; substituted order made by Court of Appeal.
Legal Topics
Ancillary Relief, Financial Remedy, Clean Break, Division of Matrimonial Assets, Periodical Payments, Appeals Procedure
Family Law Ancillary Relief Financial Remedy Clean Break Division of Matrimonial Assets Periodical Payments Appeals Procedure

Case Brief

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Parties

Anthony Smith

Appellant

Heather Ann Smith

Respondent

Procedural Posture

Appeal (ancillary Relief/financial Remedy) / Court of Appeal Judgment on Appeal From Circuit Judge, Who Heard Appeal From District Judge

Legal Issues

  1. 1 Whether the District Judge's order on division of assets and periodical payments was plainly wrong
  2. 2 Whether the Circuit Judge failed to address the appellant's specific criticisms of the District Judge's order
  3. 3 Whether a clean break order was appropriate in the circumstances

Ratio Decidendi

The District Judge erred in starting from a 50/50 division where all assets originated from the husband and the marriage was of moderate length, in transferring business premises to the wife while leaving the trading business with the husband, in double-counting income by awarding both capital and periodical payments based on the same asset, and in failing to properly account for debts, indemnities, and tax liabilities. The Circuit Judge failed to address these specific criticisms. The appeal was allowed, the orders below were set aside in part, and a clean break was ordered with revised terms for transfer of shares and periodical payments.

Court Disposition

Appeal allowed; orders of Circuit Judge and District Judge set aside in part; substituted order made by Court of Appeal.

Orders

  • Transfer of Kerala Ltd shares to wife on terms: wife to hold shares until 1 Jan 2009 or specified events; no rent due from husband/company until then; if husband pays £180,000 by 1 Jan 2009, shares to be retransferred to husband and periodical payments cease; if not, wife free to deal with shares.
  • Periodical payments to wife at £18,000 per annum (£1,500 per month) until payment of £180,000 or specified events.