RM v WP

A collection of applications and court orders.

Material from the wife including her Form E dated 14^th August 2023, her answers to questionnaire dated 18^th December 2023 and her narrative statement dated 21^st June 2024.

Material from the husband including his Form E dated 10^th November 2023, his answers to questionnaire dated 18^th December 2023 and his narrative statement dated 21^st June 2024.

Material from various SJEs on valuation and tax issues.

Properly completed ES1 and ES2 documents.

Selected correspondence and disclosure material.

The wife is aged 52. Prior to the commencement of the relationship with the husband she resided in, and was a citizen of, a South American country. In 2023 she became a British citizen. Spanish is her first language, but she also speaks good English and language has not been an issue here. She currently (in the last few months) works in the civil service, based at a location in central London.

The husband is aged 75. He is, and always has been, a British citizen, but has enjoyed living in a European country at times and there is an international flavour to his life. In this context he has had a career in an energy market industry, but is now retired (I shall deal with this in more detail below).

They met online in 2004, first met in person in late 2004, started a relationship of cohabitation in May 2005 and married on 4^th May 2007.

The marriage produced two children (neither party has any other children, so there is a significant poignancy to what has happened here):-

Unfortunately, in July 2020, the marriage broke down and the parties separated. It has been a difficult and acrimonious separation ever since, with much unhappy and contentious litigation under Children Act 1989 (concerning child arrangements for A), Family Law Act 1996 (where each party has sought occupation and non-molestation orders) and this financial remedies litigation.

Divorce proceedings were commenced by the wife on 21^st July 2022. Decree Nisi (Conditional Order) was ordered on 19^th January 2023. Decree Absolute (Final Order) awaits the outcome of the financial remedies proceedings and is not, in itself, controversial and my order will include permission to apply for Decree Absolute straight away, notwithstanding the delay since Decree Nisi.

The wife issued Form A on 20^th June 2023.

At each stage in the proceedings the husband has sought adjournments. At the final hearing stage both parties sought an adjournment. Looking back on all these applications I observe that in my view the court was right to refuse an adjournment on each occasion it was requested. In the end the facts of the case have not proved to be very complicated and what was needed was a resolution of the parties’ differences. Adjournments often have the unhappy consequence of achieving nothing apart from delaying resolution and increasing costs and stress and I am sure that would have been the case here. As well as that, asking for an adjournment of a three-day hearing a week or so before, without compelling reasons (and there were none here), runs the risk of wasting precious court resources at a time when these resources are highly stretched. Parties and lawyers allocated a slot in the court diary really should concentrate on getting themselves ready for it rather than becoming distracted by making unmeritorious adjournment applications. For avoidance of doubt, I did not observe in the husband’s presentation in court and in his oral evidence anything to suggest that he was too stressed to attend court.

A First Appointment was heard by me on 18^th September 2023. Amongst normal timetabling directions, I made a costs order against the husband in the sum of £3,500 to reflect his failure to produce a Form E in time for this hearing. I suspended enforcement until the end of the proceedings. I do not intend to discharge this order and my order now will record that this costs order may now be enforced.

An FDR hearing took place on 8^th January 2024 before DJ Mulkis; but sadly no settlement was reached. He made timetabling directions to take the matter to final hearing.

The final hearing has taken place before me over three days on 26^th, 27^th and 28^th June 2024. I completed the evidence and submissions at the end of the second day and have taken the third day to write this judgment.

It shall be the duty of the court in deciding whether to exercise its powers under section 23, 24, 24A or 24B above and, if so, in what manner, to 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.

As regards the exercise of the powers of the court under section 23(1)(a), (b) or (c), 24, 24A or 24B above in relation to a party to the marriage, the court shall in particular have regard to the following matters:-

Where on or after the grant of a decree of divorce or nullity of marriage the court decides to exercise its powers under section 23(1)(a), (b) or (c), 24 or 24A or 24B above in favour of a party to the marriage, it shall be the duty of the court to consider whether it would be appropriate so to exercise those powers that the financial obligations of each party towards the other will be terminated as soon after the grant of the decree as the court considers just and reasonable.

Where the court decides in such a case to make a periodical payments or secured periodical payments order in favour of a party to the marriage, the court shall in particular consider whether it would be appropriate to require those payments to be made or secured only for such term as would in the opinion of the court be sufficient to enable the party in whose favour the order is made to adjust without undue hardship to the termination of his or her financial dependence on the other party.

The husband is aged 75 and has (I accept) not worked remuneratively for several years. Although it has been suggested that I should attribute to him an earning capacity, my view is that it would not be appropriate to do this in relation to a person aged 75. He is significantly past state pension age and he is entitled not to engage in remunerative work, although he could of course do so if he so wished. I shall proceed on the basis that it is likely that his years of earning an income are over.

The husband does, however, have various sources of unearned income. He receives or should receive:-

He may in addition receive some de minimis share dividend / bank interest income. Depending on what property he is left with after the implementation of my order he may also receive some rental income.

The wife is aged 52. Since commencing work in England she has worked in hotel hospitality and as a bus driver; but in the last few months has commenced work as an Associate Delivery Manager in the Civil Service in Central London. She earns £37,174 per annum gross or £2,441 pcm net. She has a two-year probation period in this employment so there is a slight question mark over the future, but she seems hard working and intelligent and it is reasonable to hope that she will do this or its equivalent for the foreseeable future, possibly for the years until she reaches State Pension Age.

She has received a CMS assessment requiring her to pay £81 per week or £351 pcm or £4,212 per annum to the husband. Her monthly disposable income will therefore be £2,090.

It is common ground that this is a clean break case and so the section 25A issues do not arise.

Both parties have the need for reasonable housing and this issue has been a key part of the case before me.

In the husband’s oral evidence he declined to engage with Counsel very much on the normal inspection of property particulars representing theoretical future homes for himself. Instead, he has articulated his need as being to continue to live with A at 2 London Apartment whilst A completes his secondary education and then to sell that property, buy A his own flat in Cambridge (assuming he gets into University there), and then he will himself spend his ‘twilight years’ at the country cottage (his ‘spiritual home’), utilising what is left of the sale proceeds of 2 London Apartment to subsidise his pension income. He has acknowledged that the wife has a housing need which should be met by him, and he was prepared to contemplate selling (or borrowing against) 1 London Apartment and the property in a European country to fund such a settlement for the wife in the sum of £365,300 (per his open offer dated 24^th June 2024); but otherwise he declined to contemplate any plan different from his own proposal.

Whether or not the husband’s plans are feasible really depend on the view I take of the wife’s case. If I adopted her view on her entitlements and outcome then his own housing plans do not work mathematically. If I prefer the husband’s view on the wife’s entitlements and outcome then it may be that his own housing plans are feasible. Overall, however, I accept Ms Staunton’s observation that the husband’s plans really fall into the category of ‘wants’ rather than ‘needs’. There is no ‘need’, for example, to think about buying a flat for A, however attractive a plan that may be. However much he regards the country cottage as his ‘spiritual home’, it cannot be regarded as a ‘need’ for him to keep this and 2 London Apartment.

I therefore turn to the key question of the wife’s reasonable housing needs. In assessing these needs I should have in my mind the standard of living that the parties jointly enjoyed during the marriage, the ages of the parties, the duration of the marriage, the respective contributions of the parties. In this context it is right to record that the parties resided in various properties during the marriage, latterly in a property worth £1,175,000 at 2 London Apartment, that this was a fairly long marriage of 15 years (from cohabitation in 2005 to separation in 2020), that the parties are aged 75 and 52 respectively and that all of the capital assets were owned by the husband before the marriage begun. I record also that the wife has made contributions to the marriage in the form of home-making and child-care over quite a number of years and the current difficult situation with A does not detract from that.

The husband’s case was that the wife could be suitably housed in a two-bedroom flat in East Dulwich or Forest Hill costing £450,000 to £500,000. The wife was unhappy about this geographical location and put forward a range of particulars of properties (also mostly two-bedroom flats) costing £800,000 to £850,000 in Notting Hill, Fulham, Maida Vale and Richmond. The difference between the two property selections mostly arises from their geographical area. As is often the case in these disputes, the property particulars produced to the court represent the poles of the argument, but it is possible to take judicial notice of the fact (manifest from a short period of Google searching) that there are a range of two-bedroom flats available in a range of places in London in the price space between the poles.

I have reached the conclusion, taking into account all the circumstances of the case, that a reasonable fund for a housing budget for the wife is £650,000 plus purchase, moving in and furnishing costs of £30,000, i.e. a total fund of £680,000. I do not propose to dictate to her where she should live, or in what sort of accommodation, but I am satisfied that a fund of this size would give a reasonable opportunity of buying a reasonably suitable property in a reasonably suitable area of London.

In assessing her needs it is reasonable (at age 52 and with an income of £37,174 pa) to expect the wife to fund some of this figure with mortgage finance. In assessing what would be reasonable here I must bear in mind that some of her income will be taken up with CMS payments for two years, that she has only recently started her present employment and mortgagees may be cautious about such a short track record and also, importantly, that she will need to make pension contributions to plan for her retirement, for which at the moment she has nothing but her state pension entitlement. In the circumstances I propose to assess her needs on the basis of a mortgage of £75,000.

In addition the wife has significant debts (£17 + £3,524 + £3,134 + £47,096 = £53,771), at least the majority of which will need to be paid before any mortgage is taken out.

In all the circumstances I assess the wife as having established a needs case for a lump sum from the husband of £680,000 less £75,000 plus £52,000 = £657,000.

If I were to order the husband to pay a lump sum of £657,000, I would be leaving him (using my asset schedule above) with assets worth £1,889,704 less £657,000 = £1,232,704. I am satisfied that he could meet his needs for accommodation and living costs from this sum.

“…a judge would always be well advised to check his tentative views against the yardstick of equality of division. As a general guide, equality should be departed from only if, and to the extent that, there is good reason for doing so. The need to consider and articulate reasons for departing from equality would help the parties and the court to focus on the need to ensure the absence of discrimination”.

and in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24:-

"This 'equal sharing' principle derives from the basic concept of equality permeating a marriage as understood today. Marriage, it is often said, is a partnership of equals…The parties commit themselves to sharing their lives. They live and work together. When their partnership ends each is entitled to an equal share of the assets of the partnership, unless there is a good reason to the contrary. Fairness requires no less. But I emphasise the qualifying phrase: 'unless there is good reason to the contrary'. The yardstick of equality is to be applied as an aid, not a rule." 

“Matrimonial property is the property which the parties have built up by their joint (but inevitably different) efforts during the span of their partnership. It should be divided equally. This principle is reflected in statutory systems in other jurisdictions. It resonates with moral and philosophical values. It promotes equality and banishes discrimination.”

A 50% share of all these properties would produce a lump sum of £979,636. This

represented her open position at the final hearing. A lump sum of this size would give

her more than £300,000 above what I have assessed as her needs.

for the first 6 years of the marriage the family home was the Property in a European Country;

for the next 8 years of the marriage the family home was the country cottage;

for the final 1 year of the marriage the family home was 2 London Apartment; and

I agree with the view of DJ Jenkins that 1 London Apartment was not at any time the family home, though it became the wife’s on and off home after the separation in 2020.

A 50% share of all these properties would produce a lump sum of £730,844. A lump

sum of this size would still give the wife a little more than what I have assessed as her

needs.

The court should steer away from developing a new concept of ‘un-matrimonialisation’.

Instead, the court, in its search for fairness, should reflect on all the section 25 factors, and in circumstances such as this, should not disregard the unmatched contributions of one party and also the length of the occupation of a particular property as a family home. If the mathematical consequences of treating the sequential occupations of different properties as family homes, where they have all been contributed by one party, produces an unfair result then the court should steer away from it and not feel bound by the application of an unbending formulaic approach.

It is well established that, in the right circumstances, a court can depart from an equal division of matrimonial property, of even a family home, where fairness requires it. As Moylan LJ said in Standish v Standish [2024] EWCA Civ 567: “…the court will typically conclude that the former matrimonial home should be shared equally although this is not inevitable as shown by cases such as FB v PS [2015] EWHC 297...In its evaluation of all the relevant factors… it would be perverse if the court could not decide that the non-matrimonial source, in whole or in part, of an asset treated as matrimonial property could not justify an other than equal division”. In S v AG (Financial Remedy: Lottery Prize) [2011] EWHC 2637 Mostyn J said: “…even the matrimonial home is not necessarily divided equally under the sharing principle; an unequal division may be justified if unequal contributions to its acquisition can be demonstrated”.

The husband will pay to the wife a lump sum of £17,500 (designed to fund rental accommodation at £2,500 for six months plus a deposit) on a date exactly 42 days after my order is approved on the basis that on payment of that sum the wife will simultaneously vacate 1 London Apartment (presumably to rental accommodation identified within that 42 days). If the husband does not pay this sum then the wife will not be obliged to vacate 1 London Apartment. There will be interest in default of payment at the Court Judgment rate of 8%.

The husband will, in addition, on a date no later than 4 months after the wife has vacated 1 London Apartment (or 4 months after the 42 days, whichever is later) pay to the wife a lump sum of £657,000. There will be interest in default of payment at the Court Judgment rate of 8%.

There will otherwise be a clean break in both directions, which will take effect when the lump sum is paid in full.

Subject to any further submissions, I want to give this provisional but strong steer on costs. Given that I have taken into account the wife’s outstanding costs bill in calculating the lump sum, there should be no order for costs, save that the existing First Appointment costs order should now be enforceable.