CC v LC

Introduction and summary – These are financial remedy proceedings involving modest financial resources. The husband […] is a journalist. The wife […] is a part-time teacher. There are three children in the primary care of the wife. The three-bedroom former matrimonial home provides adequate but not spacious accommodation for the wife and three children; it is subject to a mortgage and has been the family home since 2009 (throughout the marriage and the lives of the children). The wife says, and I accept, that, if it were to be sold, there would be no suitable accommodation that could be bought for much less that its value – especially after the additional costs of sale and moving are taken into account. Further, she says justifiably, the children have emotional, psychological and educational needs that militate against the sale of the house.

There are pensions which, on the limited information that has been disclosed by the husband, appear to be roughly similar in value and so, for that and other reasons that I give later, pension sharing orders are not on the agenda. There are no assets of any significance, other than the former matrimonial home and save for some limited savings that the wife holds, partly from recent inheritance; therefore, the core decision that I have to make is as to what should become of the former matrimonial home. In this judgment I explain why I have concluded that it should not be sold.

The difficulty in this case, as I will describe in more detail, is that the husband has refused to engage. Not only has he not attended this hearing, having sent a succinct message saying that he would not do so. He has ignored orders to disclose documents even when backed by a penal notice. He did not attend an eventual committal hearing. When, under an order made in accordance with Rule 37.7 (2) of The Family Procedure Rules 2010, the bailiffs were sent to arrest him and bring him to court, the husband still did not attend court and the bailiffs, faced with difficulties, did not arrest him. The order that I made at that ‘bailiffs’ hearing’ that he must file a statement, exhibiting financial documentation and explaining his absence at the committal hearing (also backed by a penal notice) was also ignored. With an associated penal notice, I ordered him to attend this hearing and warned him, on the face of the order, that the hearing would proceed if he did not attend. He has failed to produce any evidence about his lack of attendance at previous hearings, such as medical evidence and there is no evidence to suggest that he has any mental or physical disabilities that preclude him from engaging or attending. A consequence of the husband’s failures has been that he now bears liabilities for the wife’s costs which I will have to intertwine with the capital orders that I make because, I find, expecting the wife to enforce them separately would be unrealistic and disproportionately expensive.

The husband’s failures include a failure to file any evidence of his housing and other capital needs, his mortgage raising ability, his earning capacity or his intentions. Further, he has made no proposals to resolve these proceedings that I have seen. The relevant parts of his Form E, where he should have dealt with those issues, were left blank [see pages 148-152].

Given the developing and disproportionate burden of the costs of trying to get the husband to engage, the wife, who has been very well advised during these proceedings by her solicitor (Ms Catherine Smith) and counsel, was sensible to give up on enforcement of the orders for disclosure and asked me to list this final hearing today instead. I agree that the listing of this hearing was the only sensible thing that could have been done. A bundle has been filed by Ms Smith and has been served on the husband (in this judgment, the numbers in square brackets represent pages within it).

Despite the husband’s approach to this case, he has been paying maintenance to the wife and children of £1,062 p.m. and, as I explain, I will order him to continue to do so. Further, the children spend three nights a week with him. Those are important factors within this case, and I have borne them at the forefront of my mind along with other key features of this case when deciding upon the outcome of these proceedings.

The wife says that, even during the marriage, she did not know what the husband’s financial position might be. She gave evidence at this hearing that she can only suggest that the husband’s lack of engagement arises from two things: i) his wish not to reveal the extent of his financial resources and ii) his wish to continue to exercise control over her. Having now spent so much time reading, hearing and experiencing this case, I think it is highly probable that a combination of both those two things lies behind the husband’s lack of engagement. I accept and find that the husband knows full well the misery that he has caused to this wife by failing to engage and that he has prolonged and deepened it deliberately. I accept the wife’s evidence about the unnecessary distress that he has caused her.

As a result of the husband’s approach to these proceedings, I have to examine the extent to which his conduct should be taken into account when deciding upon the outcome of the case as a whole. As I explain, his litigation conduct must be taken into account in relation to his liability to pay for the costs of the committal proceedings. As to the drawing of inferences, it is impossible to give any specific figure for what this husband may have underdeclared in relation to his capital. I think it highly likely that he has underdeclared it and conclude that, with such capital as he may have and the lump sum that I order in his favour, he will be able to meet his needs. If that were not so, he would have filed evidence to demonstrate his actual position. Plainly, he is not troubled at all about these proceedings. It is no part of my function in these proceedings, however, to be punitive.

The wife has the support of her family to whom an immense debt of gratitude is owed. I give leave to the wife to show this judgment to them and convey my admiration of their family values. If the former matrimonial home is transferred to the wife, they are prepared to assist her in taking over the mortgage on it and in funding a lump sum to the husband. The wife has a small amount of capital in her own name and can use some of that to add to the lump sum payment. The husband has costs liabilities to the wife, and I will add to them by ordering him to pay the reserved costs of the committal proceedings. The wife says that, in the light of the ages and circumstances of the children, her limited earning capacity and the needs of the family, there should not be a clean break. I agree with her.

Therefore, this judgment explains how I have come to the decision that the wife should pay a lump sum to the husband of £70,000. £60,000 of that will come from the wife through her parents (and I have been told that they have the ability to help her to that extent). £4,500 of that will come from the wife’s savings. £5,500 of that will be reflected in the costs orders that the husband will have to meet and which the wife will satisfy by a reduction in the lump sum, making the total that the husband will receive of £64,500.

I have thought very carefully about whether there should be an additional charge (or trust arrangement) over the former matrimonial home, affording the husband a further share in the property at a later stage (in legal terms, a Mesher or Martin arrangement). Having given considerable thought to that over the past few days, I have decided that there should not be.

The effect will be that the wife has the house in her sole name subject to the mortgage. The husband has a lump sum which will meet his needs, as I take them to be. The husband will pay the current level of maintenance and there will not be a clean break. At the hearing I was asked to order the husband to take out fresh life insurance to protect his maintenance payments; not only are there legal difficulties in relation to that (see Milne v Milne [1981] 2 F.L.R. 286, where the judge was held to have ordered the husband, wrongly, to take out an insurance policy and CH v WH [2017] EWHC 2379) but also I had no details of any such policy and the prospects of the husband co-operating with obtaining one I would assess at zero. On 10^th March 2023 I received an email to the effect that that aspect of the proposals that were advanced on behalf of the wife was no longer pursued.

Rule 27.5 of The Family Procedure Rules 2010 – I now wish to address the Husband directly, through this judgment.

LC, out of choice and despite having notice, you did not attend this hearing and a number of other hearings that preceded it. You will see what I say about that in this judgment. I need to inform you of the terms of Rule 27.5 of The Family Procedure Rules 2010. It reads as follows:

You should read the above rule and this judgment with care. Given the way that you have behaved in these proceedings, I direct that, any application that you do make under that rule must be made by 4 p.m. on Friday 24^th March 2023.

If you should intend to issue an application for permission to appeal to the High Court (see Practice Direction 30A of those Rules, paragraph 2.1) you must do so by the same time (that is, by 4 p.m. on 24^th March 2023). If you do not do so, any application that you might make under Rule 27.5 of the Rules or for permission to appeal will be out of time and you would have to seek relief from sanctions under Part 4 of the Rules before you could proceed; you should not assume that you would be afforded such relief. I am ordering that the time for the presentation of an appellant’s notice by you (or, indeed, by the Wife) is reduced from 21 days to 14 days, acting under the powers conferred on me by Rule 30.4 (2)(a) of those Rules. I do so based on your behaviour within these proceedings to date, the unnecessary costs and delay that you have generated and the effect of your past conduct on the Wife and your children.

It is entirely a matter for you as to whether you make any such application. You may well think it wise to take urgent legal advice if you consider that you may wish to issue any such further applications.

I will now give the detail of the case.

Background – The husband and wife were married on 17^th July 2009. They separated ten years later, in July or August 2019. The decree nisi was made on 16^th June 2020. The wife lives in the former matrimonial home in […] Bath. The husband lives in rented accommodation […] near Bath. The husband is aged 46, […] and the wife is aged 42 […],. Neither party cohabits and neither discloses any intention to do so.

The three children are […] aged ten (D10), eight (D8) and five (D5). They spend time with the father on six nights a fortnight during the term-time, with the wife having the children for slightly more of the time during the holidays. There were lengthy proceedings between the parties in relation to the arrangements for the children; they were concluded by a child arrangements order that was made by the Magistrates on […] 2022. The term-time fortnightly rota established by the order has the children staying with the father in week one on Tuesday and Friday nights and, in week two, on Tuesday nights and then from Friday after school until Monday morning; thus, amongst other things, the arrangement is geared around the husband’s work commitments and the wife has the main weekday responsibilities for them.

The children each have additional educational needs [99]. In relation to them, the wife states through her solicitor [4]:

In her oral evidence, the wife emphasised how important it is for the children to keep their current home. She said:

The former matrimonial home - […] has a value of £420,000 as agreed at the FDR before District Judge Byass in Bath. It is vested in the joint names of the parties. There is a mortgage of £131,000 in favour of the Nationwide. Thus, if sold, the net proceeds of sale would be about £277,000 [see the ES2 at page 66]. It is a semi-detached house with three bedrooms. In her Form E, the wife said: ‘the family home is suitable for our needs, close to the children’s primary school and within walking distance of the secondary school they will attend’ [122]

The husband - The husband works as a journalist […] in Bath. Within his limited evidence he has said that he earns about £36,000 net a year (£35,931 – page 141). He also says that he has a ‘parental loan’ arrangement by which he receives £350 p.m. or £4,200 p.a. [145]. He says that a payment of ‘Hargreaves Salary sacrifice’ that features on his pay slips is a ‘pension contribution’ [141]. He says that his pension, which he says is with Scottish Widows (pension number 3691214), had a total value of about £85,000 as at 22^nd April 2022 [139].

The husband’s disclosed salary statements are at pages 244-6. They show a net payment of £2908.90 p.m. and payments to ‘Hargreaves salary sacrifice’ of £244.40 p.m. (or £2,932.80 p.a.). The documents relate to the first three months of 2022. I do not know what he earns currently and have no idea of his earning capacity or future employment intentions.

The husband pays a global sum of £1,062 a month (i.e. £12,744 p.a.) to the wife for herself and the children. That means that, if his net income is £36,000 p.a., he has a net amount of £23,256 p.a. or £1,938 p.m. after paying maintenance of £1062 a month. In addition, he has the ‘parental loan’ (if it continues) of £350 p.m. or £4,200 p.a.; if that is added to his income, after maintenance, he has a total of £27,456 p.a. or £2,288 p.m. He says that he has income needs of £29,520 p.a.; the figures are incorrectly added in his Form E [147] they do not include the maintenance payment but do include rent of £15,000 p.a. I have not been able to hear any evidence from him in relation to his outgoings or needs. I assume that he is able to meet his income needs on the basis of his current payments – he is not in debt and has not suggested that he cannot manage on what he has.

The wife - The wife’s part-time work is as a reception teacher at […]. I asked her questions about her net income and referred to the salary statement at page 346. Her total net income is as follows:

I accept that money is extremely tight for the wife and the children. I accept her evidence that she has to bear the additional expenses of the children out of what she receives. I accept that they are living to a standard where there is no money to spare. It is not necessary to descend into a detailed analysis of her monthly outgoings to identify that. In her Form E she puts her total future income needs for herself and the children at £3,480.66 p.m. [118]. I also note that, on the basis of the figures that I have set out above, the husband is left with about £2,288 a month after maintenance and the wife is left with £2,559.6. From what she has, the wife has to bear all of the additional expenses of the children and cares for them for a slightly greater amount of time. That appears to me to be fair.

In her position statement, the wife says: ‘The Wife currently receives global maintenance of £1,062 per month, which, according to the CMS calculator, breaks down as to £415 pcm for children maintenance, with the remainder being spousal maintenance. The Wife seeks an Order for global maintenance to continue at this level with a pound for pound reduction in the event of a CMS assessment. Her mortgage capacity, as set out…, is contingent on her income from all sources remaining at the current level.’ Therefore, she says, not only does she need that level of payment from the husband, but its continuation is also the only means by which the husband can be released from the mortgage on the property if it remains unsold.

Due to the responsibilities that she has and on the basis of the oral evidence that she has given on the subject, I accept that she does not have the capacity to increase her earnings and is unlikely to do so to any significant extent for at least six years, when D5 will be aged 11 and starting secondary school. Currently, she works 16 hours a week and has been with the school for 14 years [112]. In the light of the children’s education and psychological needs, the children may well be dependent upon her (and the husband) beyond their majority. I do not think that it is possible to identify a date at this stage when periodical payments might cease, and it would be speculative to set one. Therefore, this is not a case where the wife can adjust with undue hardship to the termination of her periodical payments, and I will not be ordering a clean break.

In her position statement, she says:

The wife has pensions which have a value of about £109,000 [67]. Although her pensions value is £24,000 more than that given by the husband [67]:

In her position statement for this hearing [3], it is said on the wife’s behalf that:

I have studied the property details that are contained in the bundle and are referred to above. I accept that there are no suitable properties in Bath that the wife could buy for much less than the former matrimonial home. There would be no point in ordering a sale if the wife is to remain living in that city and there are many reasons why a sale should not be ordered (as I have explained). There are three-bedroom houses in other areas but:

Assets - Besides the former matrimonial home the wife has very few assets and the husband has disclosed even less. The ‘ES2’ [p66] shows as follows (excluding the former matrimonial home, modest cars, house contents and pensions):

It took quite a lot of careful discussion for me to understand the amounts that are owing in legal costs. The fault is mine and not that of the wife’s legal team. However, the position is this. The wife does not owe any sums in legal costs and has paid them to date. The figures that I have seen suggest to me that the wife’s solicitors and counsel have been very considerate to the wife and reasonable in what they have charged; they could not be said to have overcharged in any respect. In relation to the order of 27^th October 2022 (which I describe later but which was the FDR before District Judge Byass that failed because of the husband’s non-disclosure), the wife’s costs were £1,734, a sum that is modest and certainly reasonable. Thereafter, the wife has paid £3,783.60 for the contempt proceedings with costs being reserved at the hearings relating to them. Those costs are very modest and there is absolutely no reason why the husband should not pay them in full. The two costs figures come to about £5,500 – the figure that I referred to in the introductory part of this judgment.

If the wife has to pay £5,000 from her savings towards the lump sum, she will be left with about £9,000 of her own capital. It is possible that she may choose to apply an additional amount of that to alleviate her parents from paying so much towards lowering the mortgage or paying towards the lump sum themselves. But, given everything that I have heard about the demands on her and also the heavily constrained financial position that she will face, I think that she must have some capital to meet contingencies (such as psychological assistance for the children or, for instance, a car).

The wife’s parents – The wife gave evidence that her parents are not wealthy. They are both retired. They will be paying about £22,000 to lower the mortgage from £131,000 to the £109,000 that the wife can take over. In addition, they will be paying £60,000 towards the lump sum payment. That amounts to a total payment of £82,000. That is a considerable amount of money.

The very clear message that I have received from the wife (which I accept) is that she is desperately anxious that the husband should not retain a share in the home because she considers that he would use that share to control her. In her oral evidence, she said this:

The wife went on to say that the payments that the parents would be making would take up most of their retirement money. She also said that, if it was the only way to secure a transfer of the house to her without the husband having a share in the property, they would be prepared to pay more than the £60,000 that I have taken into account as coming from them towards the lump sum. It is possible that they might go as far as paying a total of £75,000 but that would mean that their retirement funding was nearly all taken up by the payment.

It is no part of my function to engage in triangular financial resolution between the husband, wife and the wife’s parents. Nor is it part of my function to draw or prey on the benevolence of the wife’s parents to the maximum extent that they can access simply because they might be able to do so. The money that the parents offer, in their laudable commitment to their daughter and grandchildren, is their money. My function is to achieve a fair solution between these parties, the husband and the wife, by applying the statutory provisions of section 25 of the Matrimonial Causes Act 1973. I consider that the lump sum payment that I am ordering does that in a case dominated by need.

I now want to set out the full extent of this husband’s litigation misconduct.

Chronology of proceedings - The difficulties with the husband giving disclosure are not limited to these proceedings. In her Form E [123] the wife says: ‘the Respondent has been unwilling to disclose his finances or to provide financial disclosure despite this being first required two years ago and has refused to attend mediation, thereby necessitating the increased cost associated with court proceedings.’

The wife issued her Form A on 14^th December 2022 [72]. Forms E were due on 22^nd March 2022, pursuant to the notice issued by the court on 19^th January 2022 [p76]. The wife filed her Form E on 13^th April 2022 [98] The husband filed his inadequate Form E on 25^th April 2022 [128]. The First Directions Appointment took place on 26^th April 2022 [83]; the husband was ordered to file and serve outstanding disclosure by 10^th May 2022 and an FDR was listed on 26^th July 2022 [83-85]. On 17^th June 2022 the husband wrote, seeking an adjournment of the FDR. On 22^nd July 2022 the FDR was adjourned by an order made by consent and the husband was given an additional 14 days to make the disclosure that had been ordered [87]. On 27^th July 2022 notice was given that the FDR would take place on 27^th October 2022.

The FDR on 27^th October 2022 took place before District Judge Byass [93]. The husband attended in person and the wife was represented by her solicitor, Ms Smith [93]. The husband had not given the disclosure that was ordered. The Judge made an order directing the husband to give that disclosure by 25^th November 2022 and attached a penal notice to the order. The order directed him to file and serve: i) all relevant attachments and accompanying documents to his Form E and ii) replies to the questionnaire of the wife, dated 7^th July 2022, to include his property particulars and mortgage capacity as set out at paragraphs 4 and 5 of the order dated 26^th April 2022.

The order was served on the husband personally on 21^st November 2022 [156]. The husband failed to give the disclosure, and, on 29^th November 2022 [170], the wife issued a committal application, supported by a statement dated 29^th November 2022 [173].

By an order dated 9^th January 2023 and served on the husband personally on 15^th January 2023, the husband was ordered to attend the court for a hearing of the committal application before Her Honour Judge Cope on 3^rd February 2023 [188 and 189]. He did not attend, and, prior to the hearing, he had informed the wife’s solicitor that he would not do so [221]. Judge Cope listed the committal application before me for the hearing of the committal application on 21^st February, with a time estimate of two hours. The order of 3^rd February 2023 was served on the husband personally on 14^th February 2023 [223]. A bench warrant was issued by Judge Cope under Rule 37.7 (2) (ibid) to secure the attendance of the husband at the hearing.

After attending to arrest the husband and after consultation with the police, the bailiffs did not enforce the warrant and the husband did not attend the hearing. I made the order that appears at page 233. I listed this hearing after the wife took the sensible view that the costs and delay of seeking the necessary disclosure from the husband were disproportionate to benefits of trying to do so and that the best course was to list this hearing. I agreed and did as requested. My order recorded the chronology of the husband’s failure to engage [234]. In other preambles to the order, I included what had happened and how the husband had sent messages to the wife saying that he would not attend [234]. I ordered that both parties must attend this hearing. Specifically, I ordered the husband to attend and, further directed him to file a statement by 27^th February 2023 giving the outstanding disclosure and exhibiting any medical evidence that he wished to provide to explain his absence at the hearing. I attached a penal notice to the orders directed to the husband and discharged the warrant [236].

The order was served on the husband personally on 22^nd February 2023 [237]. He has not filed the statement that was ordered or filed any documents.

I have seen the emails that Ms Smith sent to the husband about this hearing. There is no doubt that he knows that the hearing is listed today. The start of the hearing today was delayed until 11:15 a.m. The court officers checked and confirmed to me personally that there had been no email correspondence from the husband to say that he was not attending. Ms Smith emailed the husband to find out whether he would attend. His reply, at 11:10 a.m. was: ‘Apologies. I wasn’t aware. I won’t be in attendance.’

If the husband was seeking to suggest that he was unaware of the hearing, that is untrue. I find that he chose not to attend. I note that he has not given any reasons for his non-attendance. The order of 21^st February 2023 could not have been plainer.

Why did the husband not co-operate with the proceedings? I have already explained my findings about that. However, I want to record the evidence that I heard from the wife about it. She said:

In her position statement, the wife says this [5]:

Application of Section 25 of The Matrimonial Causes Act 1973 – I intend now to draw together the key features of this case by reference to the law that I have to apply under section 25(1) and (2) of the Act and the relevant case law that arises from it.

I have to consider all the circumstances of the case and give first consideration to the welfare of the three children whilst they remain minors. The statute refers to the welfare of the children being the first, not the paramount, consideration. Sir Roualeyn Cumming-Bruce interpreted this provision in this way in Suter v Suter [1987] 2 All E.R. 336 at 342b:

For the reasons that I have given I have had no difficulty in concluding that it would be manifestly contrary to the welfare of the children to direct a sale of the former matrimonial home. Further, to do so is not necessary in order to reach a solution to this case that is fair to be parties and in accordance with Section 25 (2) of the Act.

I have recorded the positions of both parties, insofar as I am able, in relation to the factors listed in section 25(2)(a). I find that it is highly likely that the husband has financial resources beyond those that he has chosen to reveal and his refusal to give disclosure and comply with court orders is in part related to his wish not to reveal his resources in full. I am not able to put a figure on what he may have but, I find, with the lump sum that I order in his favour, I should assume that he has enough to meet his needs both as to capital and income.

I have taken into account the wife’s small additional savings and the fact that she has recently inherited part of those savings from her grandmother. That inheritance is not a matrimonial asset. I have ordered that the wife should increase the lump sum payment derived from her parents by £5,000 because, I consider, that additional amount is available to her and it is fair, overall, for the husband to have it. I have left her with the rest of her savings (just over £9,000) because, I foresee, she will need them.

I have made findings about the wife’s income and expenditure and recorded what the husband has said about his. I have no current information about his income or earning capacity. Even if his income is as it was 12 months ago, I consider that the duration of this marriage, the wife’s dependency on the husband that arises from it and the presence of the children are all pivotal factors. Even if the home had been sold, she would still need periodical payments from the husband in order to meet her needs. I have also considered whether there could be a deferred order for the termination of periodical payments in the wife’s favour and I have concluded that there should not. The wife could not adjust without undue hardship to the termination of her dependence on the husband and it is speculative to set a date by when she must become independent, given the specific needs of the children. I have considered and applied the decision of Mostyn J in SS v NS (Spousal Maintenance) [2015] 2 FLR 1124 at paragraph 46 (but will not cut and paste it into this judgment).

In relation to the former matrimonial home, I have recognised that the lump sum payment that the husband will receive is about 25% of its net value but, in a needs-based case where the true wealth of the husband cannot be determined, I think that result is fair. The former matrimonial home cannot be treated as if it were cash in the bank. In this case, it provides important and enduring accommodation for the wife and three highly dependent children. I accept that these children have a particular need to remain in the only home that they have known. I have considered making a deferred charge or leaving a trust arrangement in place whereby the husband would receive an additional payment from the home at a later stage. I have decided that I should not do so and have taken into account, in particular the following:

With the lump sum that I have ordered to be paid to the husband, it may be that he will be able to buy modest accommodation with a substantial mortgage. It depends on the mortgage that he can obtain, the area in which he intends to live and the size of the accommodation that he wishes to buy. I have no details of any of that. I do not know whether he will have help from relatives, as the wife has. I do not know whether there are any shared ownership schemes that might be available to him. Based on the absence of any evidence from the husband on this issue, it may well be that he is not interested in buying a property and will continue to rent and meet his housing needs in that way. If he had wanted to buy a house, he would have said so at some point over the 15 months that these proceedings have been in existence.

The order that I make, therefore, meets the capital and income needs of the parties both now and in the foreseeable future insofar as I can identify them. The wife will have an overall income that will just meet her needs with nothing to spare. If the husband’s income remains as he disclosed, he will be in a similar position but, since he has not placed any evidence on this issue before the court, I assume that he is satisfied that his income and capital needs will be met.

The standard of living of this family was reasonable while they were together, although by no means lavish. On their incomes, with a mortgage of £131,000 and three children, there was certainly no money to waste, and it is tragic that the husband has committed this family to the unnecessary expense of this litigation and the misery that has flowed from it. This is the sort of case that could and should have been resolved by mediation if both parties had committed themselves to it. Creating two households out of these finances was always going to be difficult. Due to the husband’s lack of engagement, it is now not possible to identify with any precision what his standard of living will be but, I find, it must be assumed from his lack of engagement in these proceedings, that he regards it as sufficient.

The wife is now aged 42 and the husband 46. It will be 13 years before D5 achieves majority and the parties will then be aged 55 and 59. How the passage of time will affect the extent of their responsibilities to these children cannot be stated, given their extensive needs. The marriage was of ten years duration but the responsibilities that arise from it will last for far longer than the mere period of marriage.

The children spend six nights a fortnight with the husband during term-time and longer periods of time with him during the holidays. He will continue to contribute to the children and wife financially through the maintenance that he pays. The wife makes significant contributions to the welfare of the family by caring for the children for the rest of the time and, also, bearing the main responsibility for their educational and medical well-being. This is not a case where the contributions of either party should be regarded as outweighing those of the other on the evidence that I have read and heard. The wife did not contend that they should.

The issues arising in relation to conduct have required very careful thought. I have considered the following passage from the judgment of Mostyn J in OG v AG [2020] EWFC 52: ‘Conduct rears its head in financial remedy cases in four distinct scenarios. First, there is gross and obvious personal misconduct meted out by one party against the other, normally, but not necessarily, during the marriage…  Second, there is the “add-back” jurisprudence. This arises where one party has wantonly and recklessly dissipated assets which would otherwise have formed part of the divisible matrimonial property…Third, there is litigation misconduct. Where proved, this should be severely penalised in costs. However, it is very difficult to conceive of any circumstances where litigation misconduct should affect the substantive disposition.  Fourth, there is the evidential technique of drawing inferences as to the existence of assets from a party’s conduct in failing to give full and frank disclosure. The taking of account of such conduct is part of the process of computation rather than distribution. I endeavoured to summarise the relevant principles in NG v SG (Appeal: Non-Disclosure) [2012] 1 FLR 1211, which was generally upheld by the Court of Appeal in Moher v Moher [2019] EWCA Civ 1482. In that latter case Moylan LJ confirmed that while the court should strive to quantify the scale of undisclosed assets it is not obliged to pluck a figure from the air where even a ballpark figure is in fact evidentially impossible to establish. Plainly, it will only be in a very rare case that the court would be unable even to hazard a ballpark figure for the scale of undisclosed assets. Normally, the court would be able to make the necessary assessment of the approximate scale of the non-visible assets, which is, of course, an indispensable datum when computing the matrimonial property and applying to it the equal sharing principle.’

I note that there are authorities in which a less structured approach is suggested to issues of conduct. For instance, in the judgment of Moylan LJ in RR v CDS [2020] EWCA Civ 1212, there are the following passages:

In this case, the more compartmentalised approach suggested by Mostyn J, and the broader approach urged upon me by Mr Cholerton by drawing on the above passage from RR v CDS (ibid), lead to the same conclusion. Adopting the approach of Mostyn J (sitting in the High Court), the conduct of this husband falls squarely into the third and fourth category in the above passage. Penalising the husband in costs for his non-disclosure does not reflect the extent of his misconduct and the husband’s choice to cause the misery, expense and uncertainty that have gone with his lack of engagement. His failure to give full and frank disclosure leads to two inevitable inferences – i) that he has more financial resources than he has chosen to reveal and ii) he is not troubled by how much he has after these proceedings and is satisfied that he can meet his needs and the needs of the children when they are with him. Adopting the broader approach suggested in the Court of Appeal decision of RR v CDS, taking the husband’s conduct into account together with the other section 25(2) factors, the overall result is fair.

Loss of benefits (for instance the loss to both parties of any rights under the other’s pension) does not add anything to the analysis of this case.

Conclusion - Therefore, I order:

I would ask the wife’s legal representatives to draw up the order. I think that, in the unusual circumstances of this case it would be wise for the wife’s solicitors to ensure that the order and this judgment are both served personally on the husband and that there is a formal record of that service. If there are matters that I have omitted in my summary of the orders that I make (i.e. in the paragraph above), I will address those upon them being referred to me by the wife’s legal representatives.