MR v EF

This is the final determination of MR’s application for financial remedies dated 1 December 2021. I shall refer to the applicant as “the wife” in this judgment. The respondent is EF, whom I shall refer to as “the husband.”

The key issue in this case is the parties’ date of separation. The husband contends that it is 2014. The wife contends that it is 2021.

The husband contends that he should be entitled to retain capital which he says he has accrued since 2014. The husband says that there was an informal agreement in 2014 that the assets would be divided as at that date. The husband says that there would be no needs-based justification for invading his post-separation accrual.

The wife says that as the parties separated in 2021 this is a “full fat” sharing claim and that by my order, the parties’ assets should be divided 50/50.

The difference between the parties’ two positions, depending on how the assets are skinned and presented, amounts to in excess of £200,000.

For the reasons I shall give shortly, the husband has not persuaded me, on the balance of probabilities, that the date of separation was 2014.

On this basis the disposition which I provide for is on an equal sharing basis.

The wife was represented by Mr Ben Wooldridge, instructed by Hopkin Murray Beskine Ltd. The husband was represented by Mr Douglas Allen, instructed by Bowles & Co Solicitors LLP.

I am grateful to counsel for the manner in which this hearing was conducted and for their helpful opening and closing notes, agreed statement of issues and schedules. This is a factually knotty case. The burden on the court of unravelling what has happened here has been significantly lightened by all of the assistance I have been given.

It will come as cold comfort to the husband, but Mr Allen advanced his client’s case attractively and persuasively. Mr Allen could not have done anymore.

The husband is 64 and the wife is 59. They are both Italian nationals. They have each spent significant parts of their adult lives living in England, albeit they have retained property and familial interests in Italy.

This is a long marriage. The parties commenced cohabitation in about 1978 and married in 1980.

As I have already outlined, the parties have been unable to agree their date of separation. My finding, which I will explain shortly, is that the parties separated in 2021. Their union was in excess of 40 years.

There are two grown up and independent children. The parties’ daughter has a tangential appearance in some of the issues with which I have had to wrangle.

In or about 2015, the wife’s mother, who lived in Italy, required increasing care on account of being diagnosed with dementia. It is the wife’s case, which I accept, that the parties agreed that the wife would relocate to Italy to care for her mother. This was on the basis that the parties already had an Italian home and, says the wife, the parties respectively visited each other in England and Italy over the course of the time the wife’s mother required nursing care.

The parties purchased their final English matrimonial home in about 2010. This was long after the children had grown up. It is the wife’s case, which I accept, but only after a careful weighing of all the evidence, that by 2014 the parties wanted to move on. The husband is a builder. At around this time he had started to develop back issues and it was clear he could not go on as a builder forever. The parties had options. They had retained for many years an Italian home which they could locate to. However, the parties’ adult children and grandchildren were in England and so there would be attractions in staying in England, or at the very least having a pied à terre here.

On any option, the sale of the family home would release equity for the future. Whilst the parties have capital in the order of about £1.5M, they have little pension provision. It has been a notable feature of this case that the cost of property and living in Italy is enviably cheaper than here in England. The release of equity would provide some free capital on any option to assist with retirement provision in addition to any state pensions.

The wife’s mother died in the latter part of 2017 and the wife returned to England and resumed cohabitation in 2018.

Exhibited to the wife’s s.25 statement are some photographs. One photograph the wife dates as being on 28 April 2018, which was the date of a friend and neighbour’s wedding. The husband does not dispute the date. The photograph shows the wife in a black soft top F-Type Jaguar motor vehicle. The vehicle belonged to the wife. It appears (as I will explain later) that a BMW belonging to the wife was sold in about 2016. This would have the Jaguar being purchased after that date.

Surveying the wide canvass, as I must, on the balance of probabilities, it seems unlikely that the wife would have purchased such a luxury vehicle if she had moved to Italy permanently in 2014. The husband’s case is that the parties remained on “good terms” and that despite having separated in 2014, she later acquired this vehicle which the husband stored in the garage to the family home. He further asserts that he was insured on the vehicle and would drive it from time to time. I do not accept this account.

In or about 2018/2019 (the exact date is not material), the husband had a relationship with another woman. The husband said that the relationship lasted about 18 months. During this time, he told the wife he was going on a fishing trip to St Petersburg. In the hearing we did not explore the precise itinerary and detail of the trip, save to note that this woman accompanied the husband. The wife was speaking on the phone to the husband during the trip and she heard a woman’s voice in the background. When challenged he said that it was the television. Later in 2019, he admitted to the wife that he had been in a relationship. If the parties had not been in relationship since 2014, it seems unlikely that the wife would have been calling the husband when on holiday in 2019, and also challenging him about the sound of a woman’s voice in the background. It would have been none of her business. However, both parties accept that this exchange about the woman’s voice did take place.

Despite having placed the family home on the market in or about 2014/2015, it took until November 2018 to sell. At this point the wife returned to live in the parties’ Italian family home. The husband remained in England and went to live with the parties’ daughter. This was, in part, to assist her with renovations to her own home. However, at some point shortly thereafter the husband and his daughter fell out and he was no longer welcome to stay in her house. It seems, on the balance of probabilities, that the daughter had “taken the wife’s side” about the husband’s relationship with another woman. Had the relationship between the parties truly ended in 2014 then I doubt there would have been this kind of falling out between father and daughter.

In any event, the wife says that she was prepared to give the husband another chance accepting the husband’s apology and contrition. However, at some later point it became apparent to the wife that the husband’s relationship with the other woman had not been fully severed and she filed divorce proceedings.

The divorce petition was issued on 13 November 2021 complaining of the husband’s unreasonable behaviour, including his on-going relationship with the woman to whom I have already referred. A further particular alleged in the petition is that, “The Respondent used manipulative behaviour by promising he would retire to Italy with the Petitioner, but he never came. He would not respond to calls or engage fully in conversation to resolve marital disputes and would disappear for days on end without contact.”

Before falling out with one another, the husband advanced a £100,000 loan to assist his daughter’s partner with a business venture. The daughter has made plain in correspondence that she agrees that this money must be returned, but that she regards it as a loan from both of her parents. Each party indicated within the hearing that they would offer me an undertaking to share 50% of the loan with the other, depending on how the daughter decides to make the repayment.

More contentiously, the husband also says a further £47,000 is owed on account of the renovations to his daughter’s property. This is disputed by the daughter and given the rupture in the relationship, it may be more difficult to recover. Again, the parties can deal with this by way of like undertakings, should it ever be repaid.

The husband says that to avoid embarrassment within the family, the parties agreed in 2014 to present as a couple when required to “keep up appearances”. He says that the photographs of a smiling couple which the wife had produced were cynically taken for the purposes of placing on social media and the like, to further the plan to “keep up appearances”.

I am alive to the fact that there is sometimes a gap between how parties chose to present themselves on social media and the reality of a situation. I have weighed that carefully.

One photograph is of the parties on a plane together. The husband is nestled back into the wife’s chest taking a “selfie” photograph of the parties together. It is a warm and intimate photo. The parties look relaxed and happy together. The husband disputes the date which the wife asserts. The wife says it was taken on the way to a holiday together in Italy on or about 20 July 2018. The husband says that it was taken after the parties had sold their home in November 2018 when they took many of their possessions to their Italian family home. The wife is wearing a short-sleeved t-shirt. It is also “shoulder-less” in style. It is not in any way immodest, but it is “skimpy”. On the balance of probabilities, I do not think that this is the way someone would dress when boarding a plane in England in the winter months. The husband’s attempts to persuade me otherwise simply do not ring true.

As I have already commented, the Jaguar car in the April 2018 photograph poses real problems for the husband’s account that the wife left England in 2014. It is also not a “keeping up appearances” photograph. The wife is in the car alone.

Once the wife issued English divorce proceedings, the husband rejoined with Italian divorce proceedings. Whilst these were not ultimately pursued, they have added delay and expense to the English proceedings.

On 11 January 2022, the husband purchased an Italian life policy for €950,000. It took many months before it was finally established that this policy would allow for withdrawals prior to the maturity date which is some years hence. Putting it charitably to the husband, the timing of the purchase of the policy and the wife’s Form A dated
1 December 2021 looks unfortunate. Less charitably, it looks like the husband is choosing to be difficult.

The wife’s open offer is dated 20 May 2024 and seeks an equal sharing outcome. The mechanics include the wife taking as part of her settlement the Italian family home.

At the hearing, the wife suggested that the daughter’s loans and Italian premium bonds be divided equally, with other assets being retained by the parties who held them, subject to a balancing lump sum.

Whilst it has been impressed on me firmly that that wife’s primary objective is to receive the Italian family home as part of her disposition, in evidence it was clear that she does not feel that strongly about it, provided its value (more about that shortly) is properly factored into the settlement.

The husband’s open offer, before his present solicitors were instructed, is dated 16 February 2023. It was described by Mr Wooldridge, on behalf of the wife, as ill-judged in its terms. I tend to agree with that characterisation. It did not come anywhere near to meeting the wife’s claims, and I am not going to spend time measuring how or whether it would even meet the wife’s needs. The offer was made on the basis that the Italian proceedings would only remain suspended upon acceptance of the offer.

Shortly after this offer, the parties attended an FDR hearing before DDJ Don. The husband achieved that rare distinction at FDR of having a costs order made against him.

Mr Allen has titivated the husband’s offer in his opening note for the hearing. Mr Wooldridge has provided a detailed comparison with the offer dated 16 February 2023. I do not need to go into all that, as the outcome is not going to adopt the husband’s factual matrix. There is little point in my dwelling upon the details of an offer which is doomed not to get home.

The burden of proof rests on the party seeking to assert a fact. I have to determine the case on the balance of probabilities. Is it more likely than not that an asserted fact is proved?

The decision on whether the facts in issue have been proved to the requisite standard must be based on all the available evidence. I take into account a wide range of matters including my assessment of credibility of the witnesses, documents and inferences which can be drawn from the evidence. I must consider each piece of evidence in the context of all of the other evidence.

Findings of fact must be based on evidence not speculation. Evidence-based findings of fact may include inferences that can be properly drawn from the evidence and not on suspicion or speculation: Re A (A Child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12 [2011] 1FLR 1817. The decision on whether the facts in issue have been proved to the requisite standard must be based on all of the available evidence and should have regard to the wide context of social, emotional, ethical and moral factors.

In determining whether a party has discharged the burden upon it, the court looks at what has been described as “the broad canvas” of the evidence before it. The court takes account of a wide range of matters including its assessment of the credibility of the witnesses and inferences that can be properly drawn from the evidence. The role of the court is to consider the evidence in its totality and to make findings on the balance of probabilities accordingly. Within this context, the court must consider each piece of evidence in the context of all of the other evidence.

The evidence of the parties is of utmost importance. It is essential that I form a clear assessment of credibility and reliability. I am entitled to place weight on the evidence and impression that the parties have made upon me.

I remind myself that demeanour is an uncertain guide in assessing the reliability of evidence and that far more important is the substance of the evidence given, its internal consistency with contemporaneous documents and inherent probabilities. That said, the family court is still permitted to have regard to the demeanour of witnesses when there is little by way of other contemporaneous documents. I remind myself to guard against an assessment solely by virtue of the parties’ behaviour in the witness box.

This is a case where I also give myself a Lucas direction and remind myself that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress and the fact that a witness has lied about some matters does not mean that he or she has lied about everything. I have in mind the guidance provided most recently in Re A, B and C (Children) [2021] EWCA Civ 451, [2022] 1 FLR 329.

I accept entirely that just because a party has lied that does not necessarily prove the primary case against a party.

Once the court has determined the asset base it must go on to consider how the assets may be divided justly. I am required to do that fairly.

I must apply sections 25(1), (2) and s.25A of the Matrimonial Causes Act 1973.

s.25(1) provides:

s.25(2) provides:

s.25A(1) provides:

A helpful summary of how to apply these sections is to be found in the judgment of Peel J in WC v HC (Financial Remedies) [2022] EWFC 22, [2022] 2 FLR 1110 at [21]

In IX v IY (Financial Remedies: Unmatched Contributions) [2018] EWHC 3053 (Fam), [2019] 2 FLR 449 Williams J had to consider when it might be said that a cohabiting relationship had commenced. This was in the context of assessing the length of “seamless cohabitation” for the purposes of assessing the length of a marriage.

At [68] Williams J stated:

In MB v EB (Preliminary Issues in Financial Remedy Proceedings) [2019] EWHC 1649 (Fam), [2019] 2 FLR 899 Cohen J had to consider when the marital partnership had come to an end. This was in circumstances where the parties had entered into a formal deed of separation.

Looking at matters from the other end of the relationship to Williams J above, the court determined that the approach in IX v IY can be applied to look at the date when a marital partnership is said to have come to an end.

At [52] Cohen J commented, “It is a truism that marriages come in all different shapes and sizes. What may be important to one couple may be trivial to another.”

Commenting upon the facts before him, Cohen J stated at [54]

Peel J was considering the cohabitation period in VV v VV [2022] EWFC 41, [2023] 1 FLR 170 and provides a useful summary of the cases between [40] and [46] which should be read into this judgment.

In particular, Peel J appears to advocate a subjective element to the analysis at [45] – [46]

This subjective element is touched upon again by Sir Jonathan Cohen in DE v FE [2022] EWFC 71 at [20] where it was stated:

The subjective element of gazing through the window, into the heart of a marriage, was deprecated by King LJ in Cazalet v Abu-Zalaf [2023] EWCA Civ 1065, [2024] 1 FLR 565 where one of the questions concerned whether the parties had reconciled during the course of proceedings, such that the decree nisi should be rescinded.

At [73(i)] King LJ commented that the judge’s evaluation was undermined by:

It seems to me that there are conflicting cases about the applicability of the subjective element to determining whether parties consider themselves to be in a marital or quasi-marital relationship. This apparent conflict is made more difficult when the same question is being asked in slightly differing contexts. I do not consider that it falls to me to resolve these apparent conflicts.

For my purposes, I am going to apply the non-subjective approach of King LJ. I am looking at objective and external markers. Cazalet v Abu-Zalaf is the more recent and more authoritative statement. Even if I am wrong to do so, I am fortified in this case that there is a solid mass of objective evidence which allows me to make my determinations without having to subjectively try to peer into the parties’ souls.

The date for determining the assets is the date of trial.

In DR v UG [2023] EWFC 68 Moor J stated at [51] – [53]

Mostyn J held at [73] in E v L [2021] EWFC 60, absent undue delay, fairness will usually be found in taking the assets as at the date of trial and not separation:

In A v M [2021] EWFC 89, Mostyn J stated at [14]:

The parties provided me with a helpful agreed statement of issues at the commencement of the hearing.

A few of the points had boiled away by closing, leaving me to determine the following points:

In his Form E, the husband suggests that the Italian family home is worth €80,000, stating it was an “estimate pending valuation”.

In her Form E, the wife suggests that the Italian family home is worth €108,537. This figure is supported by a report in the bundle. This report was from an Italian surveyor and the report was obtained by the wife alone.

The parties were unable to agree a figure for the valuation of the Italian family home and so directions were provided for a SJE valuation. Through nobody’s fault, I am told, this was more difficult to obtain than the parties had first expected. When suitably qualified Italian experts knew it was for English matrimonial proceedings it appears there was a reluctance to become involved.

In the end a report was issued by a SJE on 18 May 2024. It was received by the parties on 20 May 2024. It provided for a valuation of €203,000.

Mr Allen notes this as being a “whopping” increase over the range of figures which the parties had each previously asserted.

Additionally, the figure was greater than the comparable property particulars in the bundle which the court had directed the parties provide to assist an understanding of the parties’ property needs.

The directions given by DDJ Don on 24 February 2023 had provided for conventional SJE directions in respect of the Italian property which allowed time for questions to be asked of the expert. Delays set in. The application was listed as a reserve hearing in November 2023 but then stood out to avoid brief fees being incurred. Following yet more delays, we arrived at the May 2024 final hearing with no time for written questions to be asked of the SJE.

This has troubled me. I can see that the SJE figure has come as a surprise. However, it is the only SJE evidence that I have.

Mr Wooldridge invites me to adopt the figure upon the basis that it is the only viable figure to work with. He also states that the husband did not ask for an adjournment for written questions to be put, nor was any attempt made to require the expert to attend via a remote link to be cross-examined.

Mr Allen says that through nobody’s fault there was no time for written questions and that I should simply ignore the expert report. He invites me to allow the market to find the price with an order for sale where the parties may each bid against the market over a period of about two months and that, if either matches the market bids, the property will go to the highest bidder as between the parties, with consequential provisions for a self-adjusting balancing lump sum.

When giving evidence about the SJE, the husband suggested for the first time, and without a flicker of any of this having been put to the wife by Mr Allen, that the wife had paid the SJE to “bump up the price”. He stated the SJE had been bribed. I have little doubt that if such an account had been given to Mr Allen, he would have put that allegation to the wife.

Whilst I accept that we were out of time for written questions, I was not told of any reason why the expert could not have been required to attend remotely. The court is well versed, willing and able to hear remote evidence where it is appropriate to do so. I do not consider that the obtaining of an Italian interpreter would have been an obstacle, even at short notice.

Had the bribery allegation been put to me as part of housekeeping in opening, I would have done everything within my power to allow that point to be properly tested, including by remote attendance and challenge of the SJE.

The fact that this issue simply arose in evidence suggests to me that the husband was willing to say just about anything to try to get his own way. Such a serious allegation would have been properly handled by Mr Allen, I have no doubt. The silence from Mr Allen speaks volumes about the husband’s evidence in this regard. I am afraid that I am driven to the conclusion that the husband was “making it up as he went along” in this regard.

Whilst the court is bound to be anxious about the inability to ask written questions having been timed out, we were not timed out for SJE remote attendance. This is especially so given the seriousness of the allegation the husband made in evidence and which the wife did not have an opportunity to reply to as she was not asked about it.

I am not attracted to testing the market. The English family home took years to sell and there were arguments about that (more on that in a moment). The husband has invited this court to accept a date of separation which I am not persuaded by. He commenced competing proceedings in Italy, causing delay and expense within these proceedings. He initially gave the appearance of having tied up a large part of the matrimonial assets in an Italian life policy, which took months to get to the bottom of. I have no confidence that testing the market will go well, given this unhappy background.

I also note that it is the wife’s case that she would like to keep the Italian family home and would pay the SJE price for it. As it happens, given that she appears to me less keen on it than the husband, I am content for the husband to retain it. However, I spy all kinds of opportunities for mischief with the husband in situ when a market price is being canvassed.

My approach therefore, without great enthusiasm, but on the basis that I have little other option and that “we are where we are”, is simply to adopt the unchallenged SJE figure of €203,000 which the husband shall have ascribed to his side of the schedule.

In summary, the husband says that there was an oral agreement in 2014.

Despite not having deposed to any detail at all in his statement, in reply to the court’s questions, the husband described that the parties had a conversation after work one day in the sitting room of the English family home. The parties had not been getting on well and so they agreed that they would separate. The husband then says that there was an agreement that nothing after 2014 would be shared between the parties.

I noted that this seemed a slightly tortuous way for the parties, then not attended upon by matrimonial lawyers steeped in the language of post-separation accrual. At the time of the alleged agreement, why would the parties be referencing assets which might have arisen post 2014? The husband then tacked in his evidence and said that the wife had said she would not claim for anything else in the future. I was left with the impression that the husband was unable to summon a clear recollection about this. However, he did not say this either. Without the benefit of anything being written down, it comes as little surprise to me that the details of a conversation in 2014 cannot be recalled. The attempt to provide conclusive detail, I am afraid, fell flat on its face.

I am also troubled by the husband’s suggestion that the parties were able to agree to separate and divide their finances in principle all in one conversation after work one day. As any matrimonial lawyer knows, conversations about separation can be painful and drawn-out affairs. The husband’s clinical wrap up in one session does not ring true to me.

In the husband’s favour, however, he cites the following facts:

The wife cites the following in support of the fact that the parties did not separate in 2014:

Each side has made points of substance which I have had to weigh carefully. Ultimately, I prefer the evidence of the wife, however.

The wife’s absence from the home from 2015 is explicable on the basis of the care which she was providing for her mother in Italy. I do not know why the husband obtained a single person’s Council Tax discount from June 2014. There may be some confusion about the exact date of the wife’s departure here. The wife had no part in the application for the discount. I am satisfied that the wife was not in the English family home between 2015 and late 2017 and the principal explanation was her mother’s illness, necessitating the wife’s attendance upon her mother in Italy. In those circumstances, the husband was entitled to claim a discount and it does not, in and of itself, point to a foundering marriage.

The marketing of the English family home was, in my judgment, pursuant to the parties’ planning for their next stage of life. Given the husband’s health, it was plain that he would not be able go on as a builder forever. Whilst the English family home had only been purchased in 2010, the parties had reached a stage in life when illness and parental care had caused them to reflect upon future options.

The bedsit-style accommodation does not assist the husband as much as he would wish in circumstances where the parties already have another family home in Italy.

The wife’s Santander account in her maiden name might, at first blush, appear a strong piece of evidence in the husband’s favour. Upon closer inspection it is not. The husband accepted that in Italy it is commonplace for women to use their maiden names on bank accounts and the like. The wife stated that her mother had previously lived in England and had come “unstuck” at one point by not having an English bank account in her sole name. The wife was making arrangements pursuant to a change in her life, namely an unspecified time relocating to Italy, and she wanted an English account. I accept that she was just “being Italian” in putting it in her maiden name and that this is not an indicator of a foundering marriage.

The appearance of another lady in 2018/2019 does not assist the husband. The wife wanted to know about the woman’s voice on the fishing trip to St Petersburg and this appears to have precipitated a falling out with his daughter.

The unequal division of the proceeds of sale of the English property is explained by the wife on the basis that they were each going to hold money so that they each benefitted from the bank account guarantee scheme (currently at £85,000). The wife is unable to explain the fact that the husband got £50,000 more than her. She denies it was due to her wanting a “quick sale”. The wife says she just signed the papers. This is a ragged edge to the case to which I cannot smooth over. All I can say is that the preponderance of the husband’s assertions do not persuade me. When balanced against the forceful points which the wife makes, or has in her favour (e.g. holiday photo date, Jaguar photo, husband “making it up as he goes along” with the SJE evidence), I am left, on the balance of probabilities, unpersuaded that the separation occurred in 2014.

Finally, the wife spoke of being comforted by the husband at her mother’s home from time to time when she was caring for her. This did not denote sexual intimacy but “being held” and cuddled when she was upset at the state of her mother’s health. This had a ring of truth to it. I believe the wife that this happened. The fact that the husband did not stay over at the mother’s home does not detract from this. The wife and her mother were sleeping downstairs in what sounds like makeshift beds to accommodate the mother’s frailty. The parties had a family home in Italy at their disposal.

Having been unpersuaded that there was a 2014 separation, I am equally unpersuaded that there was an agreement in respect of finances, or for the wife to take £50,000 at that time. As I have already observed, one articulation of the husband’s alleged oral agreement sounded rather odd and formal for a couple who have just agreed to end their marriage of some thirty years.

If the wife did take money with her to Italy, this was not part of any separation and merely making provision for whilst she was away. The husband has provided no evidence that £50,000 was ever paid to the wife. His case is that this would have been paid from the daughter’s account as she was holding £100,000 on their behalf. There is no documentary evidence to support this.

Even if I am wrong about the date of separation, and I do not consider that I am, the husband also fails on the issue of actually proving a post-separation accrual.

Mr Allen set out an extremely helpful table at paragraph [46] of his note. It encapsulates the husband’s case as to post-separation accrual at a glance. Mr Allen has drawn a number of figures from the husband’s bank account. One can see a balance in the account in 2014 at £51,126, rising each year to show a figure of £277,454 which the husband says are the fruits of his post-separation endeavours. The yearly savings (excluding the receipt of the husband’s share of the net proceeds of sale of the English family home) range between £17,000 and about £50,000.

This table is best read alongside Mr Wooldridge’s equally helpful summary of net taxable profit derived from the husband’s earnings as a builder. The net taxable profit amount ranges from about £25,000 to just over £33,000 between 2019 and 2022. I assume we do not have accounts that go back further. It was not suggested by the husband that these are outlier figures and that he used to earn money on an altogether different scale. I would be surprised if he had, being a self-employed builder.

The husband told me that he never worked for cash in hand. Even after moving into bedsit-style accommodation, the husband would have had rent to pay. He claimed that much of his work as a builder was with restaurants and so he was able to have free food whilst on the job.

It will be immediately apparent that it is hard to square how savings of, say, £50,000 can be made in a year when average gross earnings are £30,000.

I was treated to an in-depth cross-examination on the husband’s savings account. He was unable to assist in many material respects.

There was a deposit of £25,000 on 11 July 2016 with the entry [redacted]”. I was surprised that the husband was unable to tell me what this sum related to. It amounted, in one deposit in 2016, to nearly a year’s worth of earnings. I pressed him and suggested that in the scale of his personal economy he should be able to recall what such a figure related to. Eventually, the husband suggested that the figure may relate to the sale of the wife’s BMW motor vehicle.

If it was the sale of a motor vehicle, it poses further questions which the husband could not really answer. Why was the money not paid to the wife? I have already noted above that the reply to this relates to a complex description of accounting as between husband and wife, whereby the husband was permitted to keep the money on account of the wife having accessed some funds in Italy held on his account, albeit in his sister’s name. The character of the Italian funds were not explored. I am left slightly baffled about all of this, but doubting, if indeed the £25,000 on 11 July 2016 does relate to a car sale belonging to the wife, that this is the husband’s post-separation endeavour which he is entitled to keep.

There are a series of monthly payments made in the sum of £666, referenced “AA”. This was said to be a monthly repayment to the husband for works which he did for a garage-owning friend in 2015. Rather than pay the £40,000 up front, there appears to have been some kind of agreement, based upon the husband’s good friendship with the owner of AA, that he would receive monthly repayments and a small commission on each MOT which was undertaken until the £40,000 was repaid. All of the works having been undertaken in 2015, the later receipts were not “endeavour” but simply receipts for work done at an earlier date, much more proximate, even on the husband’s case, to a time when the marriage was subsisting.

I was further taken to a series of payments of £20,000, £20,000, £15,000, £20,000 and £15,000 (total £90,000). The husband was unable to tell me what these relate to, despite their scale when set against the size of his economy. I think there may have been a suggestion that one was a cash payment from a premium bond, but the husband did not give me chapter and verse as to the character of the premium bond so that I could understand whether it was non-matrimonial in character. Given the size of the husband’s earnings, I doubt it.

So, in three significant domains I am left with more questions than answers, the £25,000, the AA payments and the £90,000.

If the husband wishes to advance a post-separation accrual argument, the burden is upon him to demonstrate, on the balance of probabilities, that he has made this out by fresh endeavour, post-separation. Mr Allen can only make bricks from evidential straw. The husband has not made out his case.

Further, during this period the parties have remained, until 2018, joint owners of an English property and, to date, joint owners of an Italian property. The husband accepted that each has made contributions to the upkeep and maintenance of the properties, even if that amounts to the wife cleaning the properties when she is resident in them.

The combination of English proceeds and the further monies in the husband’s Saver account went to purchase the Italian Life insurance policy. Whilst this cost €950,000, the sum has now been reduced to €801,194 with the husband making withdrawals in part to pay his legal costs of all of these proceedings.

Having made the foregoing findings, the assets available for sharing equally amounts to about £1.5M. The wife retains her share of an Italian property she owns with her siblings, as does the husband with his.

I am invited to simply remove the chattels from the asset schedule. There is, however, quite a disparity between the cars which they each own. The husband’s car is asserted by the wife to be worth £33,000, albeit if included the husband will say it has depreciated from that figure. He also owns a Fiat van with a nominal value. In total his vehicles come to £35,500 (subject to possible deprecation) plays the wife’s Astra at £3,000.

The wife also has two pensions with gross values of about £27,039, albeit after receipt of the tax-free lump sum there will be tax to pay, making the net value of the pensions less.

Standing back and wielding the broad brush, I am simply going to exclude all cars and pensions. It may be slightly rough justice, but the figures will be broadly similar and fairer than simply removing the cars on their own.

The computational table below converts all figures into GBP:

Having determined that this is a “full fat” sharing claim, my task is simple.

I agree that housing needs should be measured at the value of the Italian family home and, upon that basis, the parties will each have a comfortable amount of free capital with which to live off for the rest of their lives, supplemented by state pensions.

Neither has significant outgoings, in part a measure of their personal economy and in part due to the cost of living in Italy.

I agree with Mr Wooldridge that the daughter’s loan and Italian premium bonds should be dealt with in specie.

I have set out in a table below how I consider the Italian premium bonds will fall out, on the figures as we understand them now. The total Italian premium bonds are £121,927. Half of that figure is £60,963. The wife already holds £37,840 and so if the in specie division was conducted today, that would result in a further sum of £23,124 being paid to the wife. I shall leave to counsel whether there is a division of the bonds now, or whether some deferred provision is provided for. The principle of equal division is clear.

As I have already indicated, whilst the wife’s primary case was for the Italian family home, the parties’ evidence left me with the clear impression that the husband was more anxious to retain that asset. It has been his home for some time now in any event. On that basis I am going to allow the husband to retain the Italian property.

Drawing the threads together, this means that the husband is going to need to pay a lump sum of £264,666 in order to effect equality. My calculations are set out in the table below:

So far as the contents of the Italian family home are concerned, the parties will, I hope, be able to resolve outstanding issues without reference back to me. Items of personal significance should be returned or retained by the person to whom they are personally special. There may have to be a pragmatic divvy up of anything else. The costs of coming back to court are likely to be disproportionate.

The wife’s English solicitor’s costs of dealing with the Italian proceedings are set out in an N260 and they amount to £9,055.45. Save to increase costs, stress and delay, the husband’s manoeuvring on this front has achieved nothing. On an equal sharing basis, why should the wife have to pay for this?

I am not actually dealing with a formal costs’ application here. Rather I am being invited to make a modest adjustment to the equal division to reflect this issue. It is rare that an N260 survives completely unscathed. Once again, wielding the family law broad brush, I am going to take 70% of those costs which is £6,338.81 and the husband should make a payment of £3,000 to the wife. This will be in addition to the provision I have made above. This will spare her the burden of financing what turned out to be a wholly unnecessary step in the life of this separation.

I would ask that counsel provide me with a draft order.

This is my judgment.

Mr Wooldridge invites me to make an order as to costs.

The wife’s first open offer was made on the 28 February 2024. I am asked to award costs from this date, which amount in an N260 to £39,541.49. VAT is not payable on these fees as the wife now resides out of the jurisdiction.

Mr Wooldridge submits that the 28 February 2024 offer was on the basis that this case involved a long marriage and there should be equal sharing of the assets, albeit the wife also contended for the parties’ Italian home as part of her settlement sum. Mr Wooldridge submits that this offer amounted, in effect, to £246,245 which was a lump sum of £200,000 plus £46,245 being 50% of the value of the Italian property as it was then understood by the wife to be.

The 20 May 2024 offer included her modestly valued non-matrimonial assets. In closing Mr Wooldridge submitted that the wife was entitled to £267,208 if the wife’s approach was endorsed, save that the husband retained the parties’ Italian home.

With the inclusion of 50% of the Italian divorce costs (which I made plain was not a costs order but part of the court’s substantive award) the final lump sum figure ordered was £267,555.

Mr Wooldridge submits that the wife’s open position since February has largely been vindicated save that she did not retain the parties’ Italian home as part of her settlement. Further, he submits that the wife’s position was on the money as the wife’s closing offer was £347 less than the final sum awarded, or £21,310 more than what the wife would have settled for in February.

Mr Wooldridge says that open offers should have consequences. I am taken to FPR r 28.3(1) and (5) which enunciates the starting point of no order as to costs in financial remedy proceedings. However, the court may depart from this by reference to r 28.3(6) and the factors listed in 28.3(7) which the court “must have regard to.” I have all the factors in mind.

My particular attention is drawn to r 28.3(7)(b) which makes open offers a relevant factor to take into account. This is supplemented by PD28A paragraph 4.4 which provides that “…The court will take a broad view of conduct for the purposes of this rule and will generally conclude that to refuse to openly negotiate reasonably and responsibly will amount to conduct in respect of which the court will consider making an order for costs. This includes a ‘needs’ case where the applicant litigates unreasonably resulting in the costs incurred by each party becoming disproportionate to the award made by the court.”

In OG v AG [2020] EWFC 52 Mostyn J stated, “[31] It is important that I enunciate this principle loud and clear: if, once the financial landscape is clear, you do not openly negotiate reasonably, then you will likely suffer a penalty in costs. This applies whether the case is big or small, or whether it is being decided by reference to needs or sharing.” In VV v VV [2022] EWFC 46 Peel J stated, “Sensible attempts to settle the case, or unreasonable failure to make such attempts, will ordinarily be a powerful factor one way or the other when considering costs….” Mr Wooldridge submits that by my findings at paragraphs [36] and [38] above I have categorised the husband’s open proposals as being unreasonable. I accept that submission.

Mr Wooldridge also invites me to consider r 28(7)(c) and whether it was reasonable to contest a particular issue. He submits the husband has comprehensively lost, having failed to establish his contended date of separation and having failed to evidence his post separation accrual.

Mr Wooldridge also references r 28(7)(e) and “other aspects of the husband’s conduct” including his unheralded bribery allegation and the court’s findings at paragraphs [32] and [87] concerning the complications created by the purchase of the Italian life policy.

Mr Allen says I should not make a costs order. He says that although the husband has lost in the final analysis, he was not frivolous in pursuing these points. He submits that there where there is a legitimate dispute over material facts that should not necessarily result in a costs’ penalty for the losing party.

Mr Allen also analyses the wife’s offer dated 28 February 2024 and points out that she was not quite asserting a 50/50 split and that the precise terms of the offer resulted in a capital offset in her favour, as the assets were understood at that point, as to her 54.7%. He says that 20 May 2024 offer is too late to have any costs’ potency. Further, the wife did not win on her getting the Italian family home in settlement. Mr Allen says that the wife is not the clear winner in that respect.

Mr Allen also says that the Italian life policy issue and the bribery issue should not sound in costs. He says the husband’s conduct did not cause disproportionate costs to be incurred by the wife and that I should be slow to penalise the husband in the overall context of this case.

The wife’s open offer was much closer to the outcome than the husband’s. It was a reasonable attempt at settlement. Although I do bear in mind that the wife did not get it all her own way in the final analysis, as the husband kept the Italian family home. I am afraid to say that the husband’s open offer was unreasonable.

At paragraph [96] the court found that each party had points of substance to make. Ultimately the wife’s case prevailed. I do not consider that this was an unreasonable case to contest by the husband. Whilst the Italian life policy was a hinderance, this taken alone would not persuade me to make a substantive costs’ order. The bribery allegation did not add to costs.

Reasonable and/or unreasonable open offers may well have costs consequences. There is little point in having rules, practice directions and stern proclamations from the higher courts if they are not followed through with. Whilst the husband was free to contest the issues which he did, the law is plain that if his open offer was unreasonable, he faced a costs’ peril. It would have been open to him, for example, to contest these issues but make some kind of open compromise offer which hedged his position, factoring in some litigation risk he may lose.

Accordingly, I am persuaded that by reason of the interplay of the parties’ respective open offers, the court’s findings about them and the ultimate order which I have made, which is much closer to the wife’s position, I should make an order for costs.

As to quantum I am going to say £20,000 should be paid. The reduction from the amount requested takes into account a broad assessment of the reasonableness and proportionality of costs and also factors into account that on one issue, the wife’s offer was not adopted. I am satisfied that such an order will not have undue financial implications on the husband.

I am invited by the wife to publish this decision on The National Archives’ website on an anonymous basis. Mr Wooldridge reminds me that the judiciary at all levels are encouraged to publish decisions to help foster an understanding as to what goes on in the Family Court. He says that the Re S balancing exercise would favour publication, albeit in an anonymised form.

The husband says that this is an invasion of his Article 8 rights, as those close to the parties may be able to recognise this judgment, even in an anonymised form. He says that there is little of interest in this judgment which would warrant publication.

I agree that with the particular configuration of facts, this case may be identifiable by a very small cohort of individuals known to the parties. Whilst I bear this in mind, I think that this is likely to have only a slight impact on private and family life and such impact must be weighed against countervailing factors in favour of publication. No particular harm has been asserted to flow from any identification, although I accept there may be some embarrassment. I bear in mind that it is the usual practice of many other courts to publish their decisions without anonymisation in any event.

The husband’s Article 8 rights are not absolute and may be interfered with where it is necessary and proportionate to do so. Anonymisation in itself is an Article 10 interference, although I accept here, a proportionate one.

There is a public interest in the public being able to see how decisions are made in the Family Court. I have to balance the competing factors. The public interest in better understanding the work of the Family Court carries the day in this instance and I will provide for an anonymised version of this decision to be published on the National Archives’ website.