National Conference 2025: financial remedy update

A tough gig – last slot on Friday afternoon – when the bar is calling and energy is low. Calling on our reserves and with the promise of imminent release from the pre-presentation nerves, we took to the stage for our last joint financial remedy update. Surprisingly, the audience was larger than anticipated at that hour of the day.

With a year’s worth of financial remedy case law to get through in about 95 minutes, again we focussed on six topics: modest money cases, conduct, costs, nuptial agreements, NCDR and contributions (following the Court of Appeal decision and in anticipation of the Supreme Court decision in Standish). Domestic abuse in financial cases featured throughout the presentation as well – building on the fantastic sessions earlier in the day and echoing the call for much-needed change. Let’s be in no doubt, financial remedy proceedings are used by perpetrators to facilitate ongoing financial abuse, and although it’s a difficult problem to resolve that is not an excuse for not seeking to do so.

“You had to be there”, and all of the content can’t be repeated here, but this article will mention a few key points that appear to have piqued interest and perhaps aren’t so readily accessible elsewhere, as well as summarising the results of the polls, to which the audience contributed throughout the session.

Our first poll question was to ask the audience what has been the most interesting case (of the six we had selected) in the last 12 months. With very limited Court of Appeal decisions, it is perhaps not surprising that 76% of the 134 voting members of the audience answering the poll opted for Standish. By the end of our session, when we asked the question again (and with quite some encouragement and a cute puppy photo) FI v DO [2024] EWFC 384 (B) had crept up the rankings, so reducing the Standish score to 59%. By the time you are reading this, the Supreme Court judgment in Standish will hopefully have clarified the impact of inherited wealth on financial cases in a way that will assist the profession to provide much needed clarity to the public in this area. And, of course, FI v DO is also valuable in providing judicial recognition that much-beloved pets should not be treated in the same way as a piece of furniture or some other chattel, and suggesting that who the dog regards as their carer is more important than the identity of the purchaser.

The second question followed on from the Law Commission’s December 2024 scoping report analysing the current law and considering reform; 131 attendees voted this time to give their opinion on the right model upon which law reform should be based. The results were as follows:

The report is a “must read”; as are the ground-breaking Resolution domestic abuse in financial remedy proceedings report and the Fair Shares report, all easily enough found online.

Costs was the topic of the third question; in summary, 39% of voting attendees said they had not had a costs order made in a financial remedy case in the last year, 45% said they’d had a costs order made in fewer than five cases, and 16% said they’d had a costs order made in more than five cases.

The fourth question was about conduct, with 67% of the 117 respondents saying they had not pursued a “personal conduct” argument in Form E in the last year. Some 33% had (4% more than five times, and 29% fewer); 82% said they had not been successful with the remainder being successful fewer than five times.

Then, turning to nuptial agreements, of the 96 respondents, 27% said they do not involve counsel when drafting nuptial agreements, 2% said they always involve counsel, and 71% involve counsel on appropriate cases. Then 10% said they are likely to change that approach based on the case law of the last year, with 90% being satisfied with their existing approach.

On the topic of NCDR, 79% of the 109 respondents said they had not had a financial remedy case actively case-managed to encourage NCDR over the last year in spite of the rule change. The remainder had had some active case management – 16% in less than five cases, and 6% in more than five cases, perhaps suggesting there are pockets of rule compliance out there.

Finally, 68% of 102 respondents thought it was wrong that the transfer of the 2017 assets to the former wife in Standish did not warrant matrimonialisation, as opposed to 32% who thought that was right.

Turning to some of the key points made during the talk that may be of interest:

• a case citation ending “(B)” means the decision was one of a court below the High Court; and see also the Guidance on Citation of Authorities (24 February 2025) that such cases may only be cited as primary authority if the judge includes an express statement to that effect in the judgment. Historical financial remedy judgments intended to address novel points of law may retrospectively be approved for citation by the FRC national lead judge
• when practical issues make a modest asset case difficult, ensure the court is presented with a practical outcome (HKW v CRH [2024] EWFC 358 (B))
• a party’s disability will take precedence over the needs of children when it is not possible to meet both needs (V v V [2024] EWFC 380 (B))
• don’t forget to provide witness bundles (electronic or paper) (QW v GH [2025] EWFC 19 (B))
• costs can be deducted from a needs award (Helliwell v Entwistle [2024] EWHC 1298, 740 (Fam), DH v RH [2024] EWFC 79 (B))
• some 15-30% is likely to be (although not always) deducted from estimates of costs for legal services payments orders (LSPOs), whether due to notional assessment or being a reasonable deduction looking at the situation in the round. There is a judicial debate about which, but this generally doesn’t appear to affect the outcome (there were multiple cases in which this happened over the last year), save that it may be important that an LSPO is a costs order, eg to secure a charging order to give effect to it (HA v EN [2025] EWHC 48)
• a Hadkinson order may be preferable to an Unless order (as it was in Ahmad & IIB Group Holdings WLL v Faraj [2025] EWCA Civ 468)
• no clear winner = no costs order (LI v FT (MPS) [2024] EWFC 342 (B)); an incentive to sling mud if not guided by the Code of Practice?
• is case anonymisation with memorable apposite initials (eg FI v DO – obviously “the dog case”) helpful/amusing or facetious/diminishing of the seriousness/importance of the judicial decisions?
• and should parties be referred to by their names rather than as eg “husband” and “wife” (an ironic and possibly very unwelcome reminder that they had, or will soon not have those labels) or applicant and respondent (so easy to mix up in a judgment and order)? Surely DDJ Harrop is right about this (as in LI v FT) – referring to the parties by their names is much more humane and emphasises the personal impact of the work of the family justice system to those on the receiving end
• adverse inferences were drawn in multiple cases, resulting in adjusted computation of assets before division (eg Abigail Williams v Andrew Williams [2024] EWFC 275; assets inferred to be more like £50m than £21m)
• overspend on legal fees can result in an “add back”, but other very poor behaviour may not be sufficiently wanton and reckless to justify such – even £600k dissipated on a yacht purchase/resale during proceedings (DH v RH (above), AF v GF [2024] EWHC 3478)
• read PD29D, don’t forget to serve mortgagees, ensure typed documents reflect handwritten ones, and obviously be polite to litigants in person and copy them into communications with the court (Grace v Grace [2025] EWFC 37 (B))
• the case law this year continues to assert that “personal misconduct” (domestic abuse) with a financial consequence should be covered by other s25 factors – income needs, or additional needs for eg medical costs. This is irrespective of the fact that the lifelong fallout of coercive control, resulting in reduced earning capacity and exacerbated poor mental health, will impact on victim/survivors for usually far longer than the reach of a court order, and is therefore arguably discriminatory. Surely this needs to change; and there seems to be a tension between the (overworked) judiciary’s approach and the increasing swell of practitioner opinion reflected in Resolution’s recent report
• don’t overlook the pre-application protocol in force from 29 May 2024 and buried in an annex to Practice Direction 9A – Application for a financial remedy. You need to give a copy to your clients and explain its meaning and many implications to your client. For example, before starting proceedings, as well as attending a MIAM, clients should have proposed and engaged in NCDR unless there is a good reason for doing so, and also given disclosure on Form E. Costs orders may follow otherwise
• disclosure is not required now before NCDR may take place (NA v LA [2024] EWFC 113)
• and, finally, the courts in ToLATA and I(PFD)A claims may now compel parties to attend NCDR following changes to the CPR from 1 October 2024

Overall it’s been a pleasure and extremely hard work presenting the Financial Remedy update over the past three years (and in Phil’s case six years), and thank you to everyone who has attended. Next year’s conference should be far more relaxing!

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