This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MR JUSTICE PEEL
Between :
FISAYO OLAOLUWA AWOLOWO | Applicant |
- and - | |
OLUSEGUN SAMUEL AWOLOWO | Respondent |
Nadia Raphael (Solicitor Advocate of Raphael Law Solicitors) for the Applicant
The Respondent in person
Hearing dates: 11 and 12 February 2026
Approved Judgment
This judgment was handed down remotely at 10.30am on 16 February 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
.............................
MR JUSTICE PEEL
Mr Justice Peel :
Introduction
This is the final hearing in financial remedy proceedings under Part III of the Matrimonial and Family Proceedings Act 1984 (“MFPA 1984”), brought by the wife (“W”) with leave granted as long ago as 17 October 2018.
The reason for the lengthy delay is the determination of the husband (“H”) to attempt to thwart at every turn W’s claims. In particular, he has falsely asserted that the equity in the former matrimonial home at 49 Sherwood Rd., Hendon NW4 (“FMH”) is almost entirely extinguished by a debt owed to his brother’s company. That debt allegedly arose out of a loan agreement in August 2009 between H and his brother’s company pursuant to which, so it was said, £1.6m was advanced to H, which sum was used to buy the FMH in December 2009 for £1.35m without a mortgage. In March 2018, H’s brother’s company sued H in Nigeria on the £1.6m loan, and on 27 March 2019 judgment was entered against H by a Nigerian court for the said sum. That order was registered in the Queen’s Bench Division (as it then was) by a Master on 30 April 2019. An interim charging order was made by a Master against the FMH in favour of H’s brother’s company on 9 October 2019, which was made final on 28 November 2022.
The consequence of the above was to denude the FMH (thought to be worth about £2m now) of most of its equity in favour of the alleged £1.6m debt owed to H’s brother’s company and secured on the FMH. Any surplus over and above the debt would be taken up by legal fees. W, accordingly, would have been left without a home, and no assets against which she could lay claim in this jurisdiction.
W made a number of applications in this country which were designed to set aside the original loan agreement, the registration of the Nigerian judgment in this country, and the charging order. H’s brother’s company was joined to the proceedings.
On 14 September 2023, HHJ Vincent, sitting as a s9 judge, found that the loan was genuine and dismissed W’s applications. The Court of Appeal overturned that finding on 16 May 2025 and ordered that there should be a rehearing of the preliminary issue as to whether the alleged debt was owed. The Court of Appeal ordered H and his brother’s company to pay the costs of the appeal jointly and severally, subject to detailed assessment; the basis of the assessment (standard or indemnity) was directed to be determined by the judge conducting the rehearing. H and his brother’s company were ordered by the Court of Appeal to pay W £50,000 on account of costs by 3 July 2025. Neither has paid that sum, or any part thereof.
The rehearing was allocated to me. I heard the matter in December 2025, and handed down judgment on 17 December 2025:
I determined that no debt of £1.6m (or any part thereof) was owed by H to his brother’s company.
I ordered that the registration of the Nigerian order in the Queen’s Bench Division should be set aside.
I ordered that the charging order should be set aside.
I discharged H’s brother’s company from the proceedings.
I gave directions to a final hearing of the substantive Part III application.
Further, I made costs orders against both H and H’s brother’s company on a joint and several basis as follows:
Indemnity costs of the proceedings before HHJ Vincent.
Indemnity costs of the Court of Appeal proceedings.
Indemnity costs of the rehearing before me.
This brief summary does not do justice to the extent of this bitterly fought litigation over many years. The reported judgments of the Court of Appeal and myself should be read in full for a complete understanding of how these proceedings have unfolded: Awolowo v Awolowo & Anor [2025] EWCA Civ 641 and Awolowo v Awolowo 2025 EWHC 3346 (Fam).
As the preliminary issue has been determined in favour of W, it follows that the FMH is now free of any charge in favour of H’s company, save for a relatively small sum due for unpaid school fees secured on the property. It is the only visible asset available for distribution. My task at this hearing is to dispose of the substantive Part III claims.
In terms of written evidence, I have the bundles referable to the preliminary issue, as well as bundles referable to the Part III claim. Both parties have filed updated Forms E and s25 statements.
I heard oral evidence from W and H. W was represented, H was in person. As at the previous hearing, and to take account of the domestic abuse allegations made by W against H, I directed that H should send to me in advance any questions which he proposed to ask of W, on the basis that I would put them to W. As at the hearing in December, I found W to be patently honest. H, by contrast, was unhelpful. He was belligerent, went off on tangents, did not answer questions directly and, as before, tried to hide behind the corporate identity of his own companies to distance himself from assets.
I have also had in mind the following findings which I made at the preliminary issue hearing and which seem to me to be of particular relevance to the disposal hearing before me (para 75 of my judgment):
“In the bundle is an undated document headed “Statement of Property Onwed [sic] by Mr Segun Awolowo”. The document is unsigned but is on H’s notepaper and has his address in the corner. It gives a total value for five Nigerian properties (by the looks of it, three being guesthouses/hotels, including one at Lagos Airport, and two being let out to commercial tenants) of Naira 1.255 billion. This would have translated to about £6 million in 2007-2009. W told me, and I accept, that H prepared this document in 2007, gave her a copy, and they both took it the British High Commission when they were seeking visas to come to the UK. The document undoubtedly identifies the correct properties. H told me that he had an interest in these properties which he described as leased rather than owned, although he has produced no documentation to confirm this which would have been the logical thing to do given the obvious significance of the document. W told me, and I accept, that H told her he owned the properties. I reject H’s suggestion that this document was fabricated by W.”
“W gave convincing evidence about their lifestyle in Nigeria in the period leading up to their move to England. They lived in a luxury apartment at the airport hotel. They also had a rented property opposite the hotel which they used. They were members of a country club. They had four cars. They travelled to London and Dubai for holidays and shopping. She had jewellery, designer bags and high end shoes. Their first child was at a private school. This all seems to me to be consistent with an overall picture of affluence at the time rather than, as H would have it, impecuniosity. Her evidence on this was in direct response to H’s questions (through me) suggesting that the lifestyle was modest.”
“W was in charge of looking after two guest houses. She was employed by H. She knew the workings of the guest houses, and understood the finances including the takings. She said that each week about 10m Naira (about £40,000 on the then exchange rate) was deposited in cash with the banks. H told her the other properties (one of which was rented to G4) also brought in substantial income. Although H asserted that W had little knowledge of his business affairs, she was employed by him, she seemed well informed about the guest houses, and she was able to identify half a dozen banks used by H’s business.”
“W told me that when they moved to England in 2009, H said he could easily access over £1m in cash. I accept that evidence.”
The background
I shall touch briefly on the background matters which are relevant to this application, i.e disposal of the financial claims. I do not need to rehearse the convoluted factual and procedural history in the respect of the alleged £1.6m loan.
W is 41 years old.
H is 63 years old. He says that he experiences hypertension, and has been recently diagnosed with an “impression of cervical spondylitis and lumbar spondylolisthesis with intervertebral osteochondrosis with caudal equivalent syndrome”. He produces a medical report referring to these matters.
H and W are both Nigerian by birth and background. H was previously married to an American woman, and lived in California from about 1989 to 2002 when they divorced. He has four children by his former wife, another American partner, and his current Nigerian partner. In 2002, H returned to Nigeria where he started a hotel business, De Skyline (Nigeria).
H and W met in Nigeria. They married on 24 December 2004. W had an administrative role in H’s business. They have four children who are aged 19, 16, 14 and 12.
Their 14 year old son has a diagnosis of autism. Last year his condition deteriorated. He is now mute. He requires round the clock care which W largely provides. The local authority is in the process of putting together a social care package, but he is undoubtedly a significant responsibility for W.
In 2009, the family moved from Nigeria to the UK, where H intended to expand his hotel business. As I have mentioned, the FMH was bought in December 2009 for £1.35m without a mortgage.
In July 2010, a property in Harlington, Hayes, was bought in two parts and under two titles: The Dower House, 393 High Street, Harlington, Hayes, and The Orchard, a piece of land lying to the east of High Street, Harlington. The combined properties were bought in H’s sole name for £816,500, without a mortgage. H intended to turn the premises into a hotel. For various reasons (including planning issues), that never took place. The Dower House was subsequently transferred in October 2016 into the name of De Skyline (UK), a company belonging to H. The last accounts for the company are for the period to 31 August 2018. A winding up order was made on 17 September 2019 and the company was dissolved on 23 June 2021. The liquidation led to sale of the Dower House (owned by the company) at a knock down price of £216,500 at auction and, after the liquidation costs and debts owed to creditors, only £7,897 remains. The Orchard remained in H’s sole name. It was sold in 2019 for £28,000; £15,660 remains from the sale.
In February 2015, the parties separated. W and the children continued to live in the FMH in England. H moved back to Nigeria. The children have had no face to face contact with H since 2017.
H issued a divorce petition in Nigeria, W issued a divorce petition in England. On 7 September 2018, decree nisi was pronounced in Nigeria. The judgment of the court also provided for W to move out of the FMH to “an alternative apartment of a mortgage of £300,000 worth in value to be borne by [H].” It is not clear to me whether such a property would be owned by W and whether it would be subject to a mortgage of £300,000, or whether H was to raise the monies by way against some other asset.
W thereafter withdrew her English petition. On 2 October 2018, W applied in this jurisdiction for permission to seek financial relief after an overseas divorce under Part III of the MFPA 1984. She was given permission by the court on 17 October 2018 to bring her application. That is the substantive claim before this court.
On 16 August 2019, the family court made an interim maintenance order against H in favour of W in the sum of £1,000pm. That was in addition to £400pm which H was paying by way of child maintenance. H continued to pay the £400pm until September 2025. He has not paid a penny of the £1,000pm since the date of the order. W has thereby been deprived of about £72,000 of unpaid maintenance due from H. Because there are no assets in this country to enforce against (other than the FMH), it has not been possible for her to take remedial action.
Thereafter the financial proceedings largely gave way to the dispute about the alleged loan, and its impact on the equity in the FMH.
The updated financial position
Capital and income resources:
The only visible resource is the FMH in H’s name, a substantial property which has been the subject of market appraisals between £2m and £2.2m. I propose to take the lower figure of £2m. The evidence is that costs of sale would be about 1.5% (£30,000). The secured debt for unpaid school fees is just short of £30,000. The equity in the FMH is therefore about £1,940,000.
As referred to above:
The remaining proceeds of sale of the Dower House are £7,897.
The remaining proceeds of sale of the Orchard are £15,660
I am satisfied that W has negligible assets of her own. Her total liabilities are £649,528 which principally comprises unpaid legal fees of £607,174. The remaining indebtedness comprises a hire purchase loan for her car, and monies borrowed to supplement her income.
W’s income through a combination of being a self-employed support worker for mental health patients (trading through her own company, Extended Horizons Ltd.), child benefit and universal credit, is about £25,000pa net. She works 10.5 hours per week. She used to work full time until the 14 year old son’s condition required her to scale back her work to care for him. She has applied for, and expects to receive, a Personal Independence Payment.
I reject H’s unfounded assertion that W is renting out a building in the garden of the FMH. I accept, as W told me, that it has been locked since the parties separated, and has H’s possessions in it.
H says in his Form E he has no assets. He says that his hotel business in Nigeria (in which he asserts that he holds a 63% stake) is not doing well, and he attributes no value to it. He says his gross income is £8,000pa. He says his current partner has no assets and is dependent on him.
H, in a recent update dated 3 February 2026, said that he owes £520,000 in legal fees. In the witness box, he told me that he owes this sum to friends who have assisted him in paying his own legal fees of these proceedings. Throughout the long history of this litigation, he has not once before referred to owing £520,000 to friends. It is not backed up by any evidence e.g. letters from the friends, loan agreements, confirmation of monies being paid into his bank accounts, repayment demands. I am sceptical about this alleged indebtedness, but in any event this must be a matter for him, and W should not receive a lesser award to enable him to meet debts which are a direct consequence of his own litigation misconduct.
I tabulate the visible assets as follows:
£1,940,000 equity in FMH (H)
£7,897 proceeds of Dower House (H)
£15,660 proceeds of the Orchard (H)
-£649,528 indebtedness (W)
£1,314,029
Financial needs
W asserts a housing need of £1.1 million, to include stamp duty and costs of purchase. She says her income needs are £43,000pa. Part of her wish to move from the FMH is because it is expensive to run, and she expects to be able to reduce her current schedule of outgoings.
In H’s Form E, he does not set out his capital needs in Box 4.3 but attaches property particulars in London in the range of £550,000-£750,000 which he describes as “Proposed Suitable Accommodation for the Applicant and the Respondent”. H does not put forward an income needs budget. In his s25 statement, he says his housing needs are £850,000.
Open offers
W made open offers on 6 October 2025 and 29 January 2026. They were refined at trial. She seeks:
Sale of the FMH. The property to be placed on the market for sale, and W to have sole conduct of sale.
From the gross proceeds of sale shall be deducted:
Estate agents/conveyancing costs of sale;
The school debt.
That leaves (assuming a sale price at £2m) net equity of £1,940,000.
From the assumed sum of £1,940,000, W to receive:
£649,528 for her liabilities.
£1,100,000 for her housing needs.
£72,000 for the unpaid interim spousal maintenance.
£72,000 for capitalised child maintenance into the future (calculated at £12,000pa for 6 years).
The above totals £1,893,528
W to retain any surplus.
Clean break
H has offered:
The FMH be sold.
The balance to be divided equally, and each party meets their own liabilities (including costs) from their half share.
For W, that would be half of £1,940,000 i.e £970,000, less her debts of about £650,000 = £320,000.
For H that would be £970,000 less his alleged debt of £520,000 = £450,000.
Law
In considering my decision, I have in mind s16-s18 of the MFPA 1984.
By s16:
Before making an order for financial relief the court shall consider whether in all the circumstances of the case it would be appropriate for such an order to be made by a court in England and Wales, and if the court is not satisfied that it would be appropriate, the court shall dismiss the application.
(2)The court shall in particular have regard to the following matters—
the connection which the parties to the marriage have with England and Wales;
the connection which those parties have with the country in which the marriage was dissolved or annulled or in which they were legally separated;
the connection which those parties have with any other country outside England and Wales;
any financial benefit which the applicant or a child of the family has received, or is likely to receive, in consequence of the divorce, annulment or legal separation, by virtue of any agreement or the operation of the law of a country outside England and Wales;
in a case where an order has been made by a court in a country outside England and Wales requiring the other party to the marriage to make any payment or transfer any property for the benefit of the applicant or a child of the family, the financial relief given by the order and the extent to which the order has been complied with or is likely to be complied with;
any right which the applicant has, or has had, to apply for financial relief from the other party to the marriage under the law of any country outside England and Wales and if the applicant has omitted to exercise that right the reason for that omission;
the availability in England and Wales of any property in respect of which an order under this Part of this Act in favour of the applicant could be made;
the extent to which any order made under this Part of this Act is likely to be enforceable;
the length of time which has elapsed since the date of the divorce, annulment or legal separation.
By s17(a), the court may make the orders which it could make under Part II of the Matrimonial Causes Act 1973 (financial provision orders and property adjustment orders).
By s17(b) and (c) it may make pension sharing orders and pension compensation orders which are not relevant here.
By s18(2), “The court shall have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen”.
By s18(3) the court is required in particular to have regard to the matters mentioned at section 25(2)(a) to (h) of the 1973 Act
I also have borne in mind the jurisprudence as to the principles of sharing, needs and compensation.
Part of the s25 process requires an assessment of the parties’ resources, the so called computation stage (see Charman v Charman [2007] EWCA Civ 503). In this case, W alleges that H has not fully or at all disclosed his true wealth.
In Moher v Moher [2019] EWCA Civ 1482, Moylan LJ stated as follows:
[86] My broad conclusions as to the approach the court should take when dealing with non-disclosure are as follows. They are broad because, as I have sought to emphasise, non-disclosure can take a variety of forms and arise in a variety of circumstances from the very general to the very specific. My remarks are focused on the former, namely a broad failure to comply with the disclosure obligations in respect of a party’s financial resources, rather than the latter.
[87] (i) It is clearly appropriate that generally, as required by s 25 of the 1973 Act, the court should seek to determine the extent of the financial resources of the non- disclosing party.
[88] (ii) When undertaking this task the court will, obviously, be entitled to draw such adverse inferences as are justified having regard to the nature and extent of the party’s failure to engage properly with the proceedings. However, this does not require the court to engage in a disproportionate enquiry. Nor, as Lord Sumption said, should the court ‘engage in pure speculation’. As Otton LJ said in Baker v Baker, inferences must be ‘properly drawn and reasonable’. This was reiterated by Lady Hale in Prest v Petrodel Resources Ltd [2013] UKSC 34, [2013] 2 AC 415, [2013] 2 FLR 732, at para [85]:
‘… the court is entitled to draw such inferences as can properly be drawn from all the available material, including what has been disclosed, judicial experience of what is likely to be being concealed and the inherent probabilities, in deciding what the facts are.’
[89] (iii) This does not mean, contrary to Mr Molyneux’s submission, that the court is required to make a specific determination either as to a figure or a bracket. There will be cases where this exercise will not be possible because, the manner in which a party has failed to comply with their disclosure obligations, means that the court is ‘unable to quantify the extent of his undisclosed resources’, to repeat what Wilson LJ said in Behzadi v Behzadi.
[90] (iv) How does this fit within the application of the principles of need and sharing? The answer, in my view, is that, when faced with uncertainty consequent on one party’s non-disclosure and when considering what Lady Hale and Lord Sumption called ‘the inherent probabilities’ the court is entitled, in appropriate cases, to infer that the resources are sufficient or are such that the proposed award does represent a fair outcome. This is, effectively, what Munby J did in both Al- Khatib v Masry and Ben Hashem v Al Shayif and, in my view, it is a legitimate approach. In that respect I would not endorse what Mostyn J said in NG v SG (Appeal: Non-Disclosure) [2011] EWHC 3270 (Fam), [2012] 1 FLR 1211, at para [16](vii).
[91] This approach is both necessary and justified to limit the scope for, what Butler- Sloss LJ accepted could otherwise be, a ‘cheat’s charter’. As Thorpe J said in F v F (Divorce: Insolvency: Annulment of Bankruptcy Order) [1994] 1 FLR 359, although not the court’s intention, better an order which may be unfair to the non-disclosing party than an order which is unfair to the other party. This does not mean, as Mostyn J said in NG v SG, at para [7], that the court should jump to conclusions as to the extent of the undisclosed wealth simply because of some non-disclosure. It reflects, as he said at para [16](viii), that the court must be astute to ensure that the non- discloser does not obtain a better outcome than that which would have been ordered if they had complied with their disclosure obligations.
In Ditchfield v Ditchfield [2023] EWHC 2303 (Fam), I said this at para 15:
“The potential consequences of failure to disclose have been clearly set out in a series of cases summarised in Moher v Moher [2019] EWCA Civ 1482, [2020] Fam 160, [2020] 1 FLR 225. The law is clear. The court is entitled, in the absence of full and frank disclosure, to draw adverse conclusions where appropriate and to the degree of specificity or generality deemed fit. A non-disclosing party cannot complain if the lack of disclosure leads the court to make an order which by necessity is based on less secure foundations than the court would wish; that is the fault of the miscreant party. As Thorpe J (as he then was) said in F v F (Divorce: Insolvency: Annulment of Bankruptcy Order) [1994] 1 FLR 359, at 367:
‘… if in consequence the obscurity of my final vision results in an order that is unfair to [the husband] it is better that than that I should be drawn into making an order that is unfair to the wife.’
Analysis
I cannot be satisfied as to the extent of H’s assets beyond a general conclusion that, contrary to his presentation, he has access to undisclosed wealth. Based on the findings I made in my December 2025 judgment, he had substantial assets in 2007, including ownership of a number of properties, before purchase of the FMH. For the purposes of a visa application he deposed to wealth of about £6m assets. That was a long time ago, and it does not necessarily follow that his wealth is of that order now. However, H has offered no explanation for what happened to those assets. H does not assist himself by not producing for the hearing before me (i) a full run of personal bank statements (ii) any credit card statements (iii) business accounts or (iv) any other financial information. He told me that De Skyline (Nigeria) ceased trading three years ago, but produces no evidence. The most recent accounts he produces for that company are from 2018 when it held tangible assets (mainly property) of Naira 2,155,942,000 which was about £4.5m on the then prevailing exchange rates, but does not explain what has happened to the property and other assets. There is not a scrap of independent evidence to assist me in understanding his financial circumstances, nor any attempt to explain the matters referred to at paragraph 75 of my December 2025 judgment about his apparent wealth. Given that he painted a false picture to the court in the preliminary issue proceedings, I am sceptical about his protestations of impecuniosity. I consider it likely that he has assets in Nigeria, but the extent of such assets is impossible to say.
I am therefore satisfied that the resources in this case are essentially (i) the FMH and (ii) H’s interests in Nigeria which are unquantifiable.
I am satisfied that, in accordance with s16 of the MFPA 1984, it is appropriate for the court of England and Wales to make an order. The parties lived in London as a family from 2009 until 2015. W and the children have continued to live here ever since. The children have been educated here. The FMH is in this country. W works here. The children are at school here. The connections with this country since 2009 have been strong and, in W’s case, much stronger than her ties with Nigeria. The only financial order made in W’s favour in Nigeria was for a £300,000 property (possibly subject to a mortgage in that amount so that there would be no equity). The £1.6m remains purportedly owing to H’s brother’s company by reason of judgment debt in the Nigerian court. To expect W to litigate in Nigeria in order to seek a higher award, given the history which I have outlined, would be unjust.
I do not consider it practical or appropriate to attempt a detailed calculation of W’s sharing entitlement. It seems probable to me that when H asserted wealth of £6m in 2007, the bulk of that originated from pre-marital accrued wealth; by then the parties had been married for less than three years, but H had had a long standing career. It is impossible to ascertain whether, and if so by how much, H’s business wealth grew in the period between marriage and separation (about eleven years).
Arguably, only the FMH can be confidently regarded as a matrimonial asset. As a rough guide, based on equity in the FMH at £1,940,000, a starting point of equal division would be £970,000.
W has principally presented her case by reference to needs. I have in mind her housing and income requirements, the needs of the children for who she is the primary carer, the long-standing disobedience of H to court orders to pay interim maintenance, and W’s high level of indebtedness which is a product of H’s determination to defeat W’s financial claims.
W’s alternative housing particulars are in the region of £1m, although in the witness box she told me that she needs about £950,000. With costs of purchase, stamp duty and refurbishment, she seeks £1.1m. H’s proposed particulars are at £850,000. W seeks a 5 bedroom property because of the needs of the children. Given their ages, she would in due course be able to trade down as they leave home although I accept she may have continuing responsibilities for their 14 year old son. Having considered various property particulars it seems to me that a reasonable sum for W to have for her rehousing would be £1,000,000 inclusive of stamp duty, purchase costs and refurbishment. As it happens this is about half of the value of the FMH which seems to me to be consistent with her sharing entitlement. I reject H’’s suggestion that she should take on a mortgage; with four children and a modest income, she does not have the wherewithal to do so.
I do not lose sight of H’s housing needs. He says that he needs a property in London. I am not convinced by that argument. Since separation in 2015, he has lived in Nigeria and I do not consider it appropriate to fix his needs by reference to London accommodation, although I have no property particulars for housing in Lagos. If, as he says, he intends to access medical care in London, no doubt he can rent. If he wishes to see the children (albeit there is no sign that this will take place), again he can rent in London. In any event, I consider it likely that he has access to sufficient wealth to enable him to buy a two or three bedroom property in a suitable part of London, or in Nigeria. If I am wrong about this, then he has only himself to blame for determinedly thwarting W’s claims over many years, breaching court orders, presenting a false case to the court which has led to hundreds of thousands of pounds of legal fees, and failing to produce any documentation to evidence his current financial state.
The entirety of W’s outstanding debts (principally her legal fees) should be met from the proceeds of sale of the FMH and not, as H suggests, from W’s share of the FMH proceeds. Those debts are a direct product of H’s actions in terms of his litigation conduct and his non payment of interim maintenance.
As for income needs, W has a reasonably secure source of income, and her budgetary requirements will reduce when the FMH is sold and she purchases a smaller property which will cost less to run. She is over 20 years younger than H; she has many career years ahead of her whereas H, at 63, is in the later part of his financially productive years. W does not seek periodical payments for herself.
It seems to me that the impact on this case of H’s litigation misconduct goes beyond legal costs. Had he accepted the truth about the FMH from the outset, the equity in the FMH would be £1,940,000, and the legal costs would be modest. Instead, W has £650,000 of debt to meet. Since the FMH is the only visible asset, those debts have to come from the net proceeds. That reduces the sum available for distribution from circa £1,940,000 to just under £1,300,000. As a starting point, equal division of the FMH should have netted W £970,000 (50% of £1,940,000). Instead, after top slicing her debts, it would be £650,000 (50% of £1,300,000). Why should W bear the consequences of reduced available equity because her legal fees, caused by H’s litigation misconduct, have to be met out of the proceeds of sale? In other cases, the recalcitrant litigant would be expected to pay costs from their own assets. Here, that cannot take place because there are no other visible assets, H has not paid costs orders in the past, and W’s debts can only come out of a reduced marital asset.
Another way of approaching it would be to provide for an equal division of the FMH, with H to pay from his share a sum to clear all of W’s debts, as well as the unpaid maintenance and capitalised child maintenance. The net result would be similar, but it is logistically simpler to order the sums to be paid direct to W/her solicitors.
In my judgment, the appropriate order is as follows:
The FMH be sold.
W shall have sole conduct of sale but must inform H of the progress of sale. The property shall be marketed at such price as agents recommend at not less than £2m.
From the proceeds of sale shall be deducted the costs of sale and the school fees debt. At an assumed sale price of, say, £2m, that would leave assumed equity of £1,940,000.
W shall receive:
£649,528 for her indebtedness.
£72,000 for the unpaid interim maintenance.
£1,000,000 for housing.
Capitalised child maintenance which I calculate (taking a reasonably broad approach) at £400pm for 6 years (when the youngest child reaches 18) which is £28,800.
The total of the above for W is £1,750,328 which I shall round down to £1,750,000. That would leave £190,000 for H. In net terms (i.e after deduction of W’s debts of about £650,000):
W would have £1,100,000.
H would have about £190,000.
Rather than provide for specific lump sums, it seems to me that the fairer approach is to order that:
W shall receive 90.21% of the net proceeds up to net equity of £1,940,000, and H shall 9.79%.
Any surplus of net equity over £1,940,000 shall be divided equally.
H shall retain the proceeds of the Dower House and the land at The Orchard. These total about £23,000 so that H will have £190,000 + £23,000 = £213,000.
There shall be a clean break.
The interim maintenance orders shall be discharged. W shall undertake not to apply for child maintenance at court or via the Child Support Agency and to indemnify H in respect of any future child maintenance order or assessment.
No order for costs, on the basis that they are provided for within this award. W shall undertake not to seek to enforce any costs orders which have been made in her favour, and to indemnify H against any enforcement.
I am satisfied that the above meets W’s needs, and those of the children. I am also satisfied that H has access to additional, undisclosed resources which enable him to meet his own needs. Insofar as H asserts debt of £520,000, which is not evidenced and about which I have considerable doubt, such debt relates to his legal fees and W should not bear the financial consequence of H’s litigation wrongdoing.
In W’s Form E, she refers to physical, financial and emotional abuse during the marriage at the hands of H. On her behalf, it is said that this is behaviour which should be taken into account as being inequitable to disregard (s25(2)(g) of the Matrimonial Causes Act as applied by s18(3) of the MFPA 1984). In fact, the focus of this argument was on (i) H’s use (or misuse) of the monies invested in the Harlington properties, (ii) H’s litigation conduct and (iii) H’s non-disclosure. Only the first of these took place during the marriage, but all seem to me to be potentially relevant matters, as having a direct impact on the finances.
Insofar as W refers to personal misconduct (physical and emotional abuse) during the marriage which has no discernible financial impact, it seems to me that this factor does not materially add to the outcome which I provide for by this order. As it happens, it was not explored in evidence, rightly in my view. Domestic abuse is indefensible; of that, there can be no doubt. In the context of s25, even if it potentially reaches the high threshold set by the court for conduct, the question then is whether it potentially affects the financial outcome. That usually turns on whether a financial consequence flows from the domestic abuse and whether it adds materially to the other s25 factors. The court should inquire into the s25 factors proportionately, and avoid detailed inquiry into a factor which is likely to have little or no bearing on the outcome. In this case, it seems to me that the more significant factors for the purpose of the s25 exercise are (i) H’s non-disclosure, (ii) W’s legal costs are a direct result of H’s litigation manoeuvring, (iii) H has not complied with court orders and is in substantial arrears, (iv) W has been the sole carer of the children since separation and will continue to be so, (v) W’s housing needs are greater than H’s because of her care for the children, (vi) because W’s debts have to be paid from the net proceeds of sale of the FMH, and will not be paid by H, it is unfair for her award to be reduced merely because the proceeds of sale (after payment of debt) is reduced and (vii) if H has debts because of his legal costs, that is entirely down to him and should not be visited upon W indirectly by him taking a higher share of the proceeds to repay those debts.
Ultimately, the order which I have alighted upon provides W with 90.21% of the assumed net equity from the FMH, enables her to clear all debts and provides for her housing and income needs. H will have 9.79% which, with his undisclosed assets, is sufficient for his needs.
Overall, in my judgment, this is a fair order when considered within the context of the Part III legislation and the s25 criteria.
Anonymisation
I will not anonymise any part of this judgment (although as set out in the rubric the identity of the parties’ children must be preserved), because the details are already known as a result of the unanonymised judgments of the Court of Appeal and myself in 2025.