Lasting Powers of Attorney: recent key developments
Christos Malialis and Elizabeth Malialis, both 59, were married for 34 years and have two grown up children. As a fully contributing husband and father in a long, financially comfortable marriage, Mr Malialis can be forgiven for expecting that the division of assets would be deliberated with an intention that both parties’ reasonable needs were met. The couple’s matrimonial home was a six bedroom house in North London worth £1.8 million and they owned properties in Cyprus and Liberia
Family law practitioners would expect a case bearing these facts to be the subject of an equal, or near equal division of the assets save for any resources which should be ‘ring-fenced’.
The final hearing of Mr and Mrs Malialis’ ancillary relief proceedings were heard by Mrs Justice Parker in the High Court in November 2010, having been transferred from Finchley County Court for reasons of complexity. The parties had spent a global figure of £450,000 on legal fees to reach that point. The judgment of Mrs Justice Parker did not materialise until a full 12 months later in December 2011, a delay that Lord Justice Thorpe who heard Mr Malialis’s application for permission to appeal and then later the appeal itself, has described as “quite extraordinary”.
The result of Mrs Justice Parker’s long awaited judgment was that once Mr Malialis’s significant liabilities were taken into account, he was left in a position of having to sell the former matrimonial home, move into a one-bed rented property and manage his expenditure from an annual income of £11,000. Conversely, Mrs Malialis was awarded “more than double” the assets afforded to Mr Malialis in a judgment which the Court of Appeal judges have labelled as “plainly too favourable to the wife”.
Mr Malialis appealed against the judgment, saying that the decision of the Judge of first instance was “perverse and completely biased” and that the enormous gap between the trial and the judgment had resulted in the judge losing control of the facts. He appeared in person at the appeal.
The appeal court judges allowed Mr Malialis’s appeal “to the extent of redrafting aspects of the order which were plainly too favourable to the wife”. Their particular concern lay with the rejection by Mrs Justice Parker of submissions made on behalf of the husband to limit the period in which he would or might be kept out of the allocated share of the assets. Mrs Justice Parker had effectively placed full control of when the husband received his share of the assets, with the wife. In addition she had made a costs award against the husband to the tune of £50,000 without clear reference to the Rules.
Lord Justice Thorpe readily acknowledged that the “quality of judgment may not have measured up to the standard that the litigants are entitled to expect”.
The appeal Judges have sought to redress the inequality of the first instance judgment with the objective that the court should have had from the start, “namely equal division of all assets.”
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