Pump Court Chambers

Black Rapp’s Knuckles – Rapp v Sarre [2016] EWCA Civ 93

Blog 25th February 2016

Black LJ (Patten LJ and Baker J agreed) emphasised the need for full cooperation in ancillary relief proceedings.


H argued that the capital assets were wrongly divided unequally, giving W (54.5%) and the more liquid and less risky assets.

The parties met in 1990, when H’s assets were worth $1m, and married in 1994. H was an oil trader. W did not work. There are no children.  In 2003 W discovered H, was taking cocaine and drinking excessively. In 2010, H’s employers discovered his addictive behaviour and engineered his departure. H’s behaviour continued and he was unemployed. W was in her late forties and H in his mid fifties. They separated in 2009 and were divorced in 2014. Total assets were worth £13.5m.

In H’s Form E was a “woefully inadequate document”. Black LJ concluded “the information available … about his financial position and needs was severely limited by his own failure to comply with his formal duties in respect of disclosure.”

H didn’t attend the final hearing, but wrote in terms suggesting an adjournment for health reasons. That was refused. Post hearing but pre judgment, H attended court, seeking an adjournment, which was refused.

W received 54.5% and H 45.5%. H had £6.2m and income of £139,000pa. If H’s other capital were to be deployed as a Duxbury fund, it would produce £200,000pa. W had £7.4m. Excluding the London flat, W would have a £4m fund which would provide, on a Duxbury basis £160,000pa.


Black LJ endorsed the reasons to depart from equality:

  1. It was necessary to cater for W’s needs and leave H with sufficient to meet his needs; and
  2. H’s conduct, had led to “the reckless frittering away of family money”. If the same occurred in each year since separation, it would be over £600,000 and there was an unquantified waste of money during the marriage.

H’s arguments over pre-marital assets were rejected. H’s pre-marital assets had been “well and truly mingled” with the resources accumulated during the marriage.

At the adjournment application H said he was “about to do a deal with the [US] Department of Justice”. The liability was circa $400,000 but not mentioned in H’s Form E. Such comment was insufficient to put a court on enquiry. Liabilities should be in the Form E, and if arising after exchange, documentary evidence of their existence needs to be presented

H’s potential $9m claim for mismanagement of investments, whilst a potential source of capital, was not taken into account, due to lack of evidence as to prospects of success.

Black LJ accepted (para 36) that “It is well established in the authorities that “need” is a flexible concept and that the assessment of a spouse’s “needs” includes a consideration of the way in which the parties led their lives whilst together.”

Standard of living was taken into account. W had itemized her budget whereas H had not. Best practice involves the preparation of a budget instead of leaving the judge to forecast what needs might be.

A more equal sharing of the less desirable assets was rejected, because H was the spouse with the business acumen, who “has invested the parties capital, knows where it is and how to make the most of it” and had failed to provide the details to enable the judge to consider a different asset allocation. H had money to tide him over until the French property was sold.

Criticisms of the approach to addictive behaviour were dismissed because even if H “were to succeed in establishing, as he seeks to do, that the judge placed undue weight on H’s behaviour and its consequences for the family finances, this court would not interfere with his order, because the view that he took of the addiction aspect of the case was not a necessary part of the justification for it.”

Consideration of the differing approach to addictive behaviour (MAP v MFP [2015] EWHC 627 Fam – addiction to cocaine and money spent on prostitutes) was declined because it was “undesirable to engage with this issue in a case where there has not been a full exploration of it at first instance, involving evidence and submissions from both parties.” The likelihood is that this issue will prompt further discussion.

H had not produced medical evidence to justify an adjournment (para 44). The background of the delays in the proceedings and H’s failure to properly participate were considered. Unsurprisingly, clear medical evidence would be required to justify an adjournment

The Golden Rule

Prepare your case carefully and fully.  If you don’t, do not expect sympathy or lenience. Deficiencies are unlikely to be rectified on appeal.

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