The Family Court has emphasised without notice Part III applications for leave should not be listed without notice “unless there is an exceptional reason”.
The recap on procedure was included in the judgment of Mr Justice Peel, sitting in the Family Court at the Royal Courts of Justice, following an application under s13 of Part III of the Matrimonial and Family Proceedings Act 1994 for leave to apply for an order for financial relief after an overseas divorce.
An interim application for a restriction to be entered on the title of a London property was considered at the same hearing.
The draft application submitted by the wife in the proceedings (W) included 24 narrative pages, 446 pages of exhibits and a covering later explaining the application was being made without notice due to a fear that “if the application is made on notice, she will be evicted by the Respondent from the property where she is currently living together with her son.”
W sought allocation to the High Court level because the assets in the case were said to be over £50 million. Approving the application to the High Court, Mr Justice Peel said he had misgivings about the without notice application but agreed to hear the application, noting:
“It is a matter for the judge to determine whether a without notice application is appropriate.”
In the judgment, published in December following a hearing on 3 October 2025, Mr Justice Peel reiterated without notice applications in Part III cases should be rare and exceptional.
“The Husband (“H”) was completely excluded from these communications,” he said. And, he added, although W’s concerns had been sufficient to justify an interim hearing without notice, the substantive application must be determined on notice to the respondent and with the benefit of adversarial argument.
Referring to Potanina v Potanin, in which the Supreme Court ruled, “It is a fundamental rule of procedural fairness that, before making an order requested by one party, the judge must give the other party the chance to object,” Mr Justice Peel said he struggled “to envisage many cases where there would be now, post Potanina, a compelling justification for a leave application to be heard without notice.”
At the time of the application hearing, W and H were 50-year-old Russian nationals. Married in 2003, before their separation in 2018 they lived in a central London family, bought in 2013. W remained in occupation of the property until she received an eviction notice in May 2025 when she moved into a London flat owned but not occupied by H.
The divorce took place in Russia, with terms of the financial order agreeing sale of the central London property and for W to receive £2 million or 40% of the sale proceeds; H to pay the outgoings of any property bought by W until the children were 21; W to retain a family property in Moscow; H to pay W maintenance of £17,000 per month until her remarriage, plus child maintenance, education costs and property outgoings; H to pay W a lump sum of $1 million; W to receive 20% of all trust assets, anticipated to be between $8 million and $20 million, and other ancillary provisions.
The agreement had been frustrated by years of litigation related to misappropriated trust assets, the judgment noted, resulting in a trustee being convicted of fraud and imprisoned.
Mr Justice Peel explained:
“It seems, on W’s account, that the trustee, without the knowledge of either H or W, restructured the ownership of the central London property to enable it to be pledged as security for a risky venture. The trust defaulted on the loan, the central London property was repossessed in May 2025 and W was evicted on 12 June 2025. It appears that H actively tried to avoid the risk of W and the children being evicted, including by making an offer (which was not accepted) to the mortgagees of £3.5m to stave off the repossession.”
By 2025, the central London property had been repossessed.
The judge continued:
“The consequence of these matters is that W has not received her entitlement to a share of the trust assets, nor 40% of the central London property. Other than $50,000, she has not received the $1m. The £17,000 pm maintenance is no longer being paid. She has moved to another property owned by H having been evicted from the central London property, and has limited financial security.”
In relation to the interim application for a restriction to be entered on the title of the London property submitted by W, the court was satisfied the threshold for interim relief was met and a temporary restriction to preserve the status quo was granted. However, the court emphasised this did not confer any proprietary interest and should not be treated as a precursor to substantive financial relief.
In relation to the without notice Part III application, Mr Justice Peel said he was “unpersuaded” to grant it without an on notice hearing, as “to do so would be contrary to the spirit of Potanina”.
“On the face of it, W has a credible case for leave to be granted. However, I only have W’s version of events before me, both in her evidence and in submissions. I am not satisfied that the appropriate course is to grant her leave and then hear any application by H to set my order aside. To adopt this course is illogical. Far better to see and hear the evidence from both sides.”
The application was adjourned to an on notice hearing.
