A and B (Schedule 1: Arbitral Award: Appeal), Re

A and B (Schedule 1: Arbitral Award: Appeal), Re

The judge erred in law by holding that the court lacks power under Schedule 1 Children Act 1989 to order settlement of property funded by mortgage borrowing; mortgage capacity is a resource, and settlements can be made subject to mortgage. The appeal is allowed and the matter remitted for rehearing, as the arbitral award may no longer be implementable due to changed circumstances.

Parties
Appellant: ZU; Respondent: LT
Jurisdiction
England and Wales
Judgment Date
04 October 2024
Procedural Posture
Family Law Appeal (schedule 1 Children Act 1989) / Appeal From Central Family Court Decision Refusing to Convert Arbitral Award Into Court Order
Outcome
Appeal allowed; order of HHJ Evans-Gordon set aside; matter remitted for rehearing.
Legal Topics
Schedule 1 Children Act 1989, Settlement of Property, Arbitral Award Enforcement, Financial Remedies, Jurisdiction of Family Court, Mortgage Capacity as Resource
Family Law Arbitration Schedule 1 Children Act 1989 Settlement of Property Arbitral Award Enforcement Financial Remedies Jurisdiction of Family Court Mortgage Capacity as Resource

Case Brief

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Parties

ZU

Appellant

LT

Respondent

Procedural Posture

Family Law Appeal (schedule 1 Children Act 1989) / Appeal From Central Family Court Decision Refusing to Convert Arbitral Award Into Court Order

Legal Issues

  1. 1 Whether the court has power under Schedule 1 Children Act 1989 to order settlement of property funded by mortgage borrowing
  2. 2 Whether an arbitral award requiring such settlement can be converted into a court order
  3. 3 Whether a change in financial circumstances post-arbitration justifies refusal to convert the award

Ratio Decidendi

The judge erred in law by holding that the court lacks power under Schedule 1 Children Act 1989 to order settlement of property funded by mortgage borrowing; mortgage capacity is a resource, and settlements can be made subject to mortgage. The appeal is allowed and the matter remitted for rehearing, as the arbitral award may no longer be implementable due to changed circumstances.

Court Disposition

Appeal allowed; order of HHJ Evans-Gordon set aside; matter remitted for rehearing.

Orders

  • Cross-applications remitted for rehearing before Cobb J.
  • No immediate substantive order for settlement of property; parties encouraged to consider non-court dispute resolution.