H v W

On 13^th October 2022 H applied for financial remedy arising from the parties’ divorce.

The parties married on 23^rd December 2008 and began cohabiting either then or shortly thereafter. The date of separation is a hotly disputed fact. H asserts it is late 2021 making the marriage of 13 years duration. W asserts it was in 2012, making the marriage of only 4 years duration.

H is aged 74 and has advanced Parkinson’s Disease. He receives 2.5 hours of daily support to meet his needs. He is currently living in a 1 bed flat owned by X Housing.

W is aged 66. This was her third marriage, and she has 2 adult sons from her previous marriages. She currently lives in property Y, a property owned in her sole name. She suffers with Chronic Fatigue Syndrome and Complex PTSD/Dissociative Disorder. The latter causes her to dissociate and “flee” by going on “walkabouts” of which she has no memory. Since 2022 she has also suffered from Persistent Postural Perceptual Dizziness, a functional neurological condition which causes her to fall over if she is too tired or distracted. As a result of these conditions, she wears trackers to enable supporters to track her at all times.

Both parties owned properties prior to their marriage. H had bought a hotel, property W with his former partner in 2002 for £224,500. Initially the parties lived at the hotel. In 2017 the hotel was converted into an HMO, with the licence in W’s sole name. When it became an HMO, the parties moved to property T, which was owned in the sole name of W. The hotel was put into joint names and then remortgaged.

W owned 2 properties prior to the marriage: property T, and property Z. Property T was purchased on 29 October 2004 and property Z two years later, on 29 September 2006. Initially property T was rented but the parties lived there between September 2017, when the hotel had been converted to the HMO, and January 2020 until they moved into the property currently occupied by W (property Y). Property Z has always been rented out and never occupied by the parties.

In January 2020 property Y was purchased in W’s sole name and the parties moved there together. H asserts that the property was adapted to meet his deteriorating health needs.

The parties ceased living in the same house, property Y, on 15 December 2021 when W applied for a non-molestation and occupation order.

The agreed ES2 sets out the following financial resources which are summarised here. W’s two rental properties (properties T and Z) are currently tenanted. If sold with tenants in situ it reduces their potential yield by £43,194 combined. Whilst not proposing sale, W adopts this lower value. Given the limited resources of the parties the Court has proceeded on the basis each party would wish to maximise the value of each asset and therefore if a sale were ordered it would be with vacant possession. Whilst that would require the tenancies to end, the Court reminds itself that sale of a property is a ground for possession in any event.

H has cash assets of £3,850 in his name and W £11,860. Each party has outstanding legal fees. The ES2 states that H owes £54,092 in legal fees and a further £7,130 on his credit card (total: £61,222). Off set against his cash reserves a total figure of £57,372. W has outstanding legal fees of £22,030 and a credit card of £936 (total: £22,966). Off set against her cash reserves a total net figure of £11,106. I note that there are different figures for outstanding costs within Counsels’ respective documents. The Court has relied upon the figures in the agreed ES2.

During the course of the proceedings property W was sold rendering £106,411 after fees. £31,931 remains. The balance has been used in legal fees. There is an unknown CGT liability, and the parties agree that the proceeds will be used to meet this. At worst the CGT is believed to be in the region of £27,000. Any residual balance from the proceeds is therefore likely to be minimal. To avoid unnecessary complication the proceeds of property W are therefore excluded from the table below.

For the purpose of recording the financial resources available to the parties irrespective of their nomination as to matrimonial or non-matrimonial, the assets are summarised in the table below:

Both parties are retired. H receives his forces pension and PIP giving a combined income of £2,272 per month. Within that he has to meet housing costs of £416 per month. His current annual income is £26,720.

W lives mortgage free and is retired. She has a pension upon which she does not draw. It would provide £4,435 per annum. Her primary income is from the rental properties (£12,600 for property T and £9,600 for property Z). Without drawing on her pension her current income is £35,393 per annum. Without her rental income and assuming she drew her pension, it would reduce to £17,628.

In his most recent open offer dated 1 October 2024 H proposes:

In her most recent open offer dated 11 October 2024 proposes:

There are three factual issues:

In considering the appropriate division of the financial resources in accordance with s.25 Matrimonial Causes Act 1974, the following issues arise:

The final hearing of this application has been significantly delayed by the health issues which afflict each party. The original final hearing on 21/22 May was adjourned on medical grounds. Both parties find participation in the Court process, especially at attended hearings, difficult. To assist, the parties were directed to file their evidence in chief as written s.25 statements.

The parties were both subject to cross examination by pre-prepared video in which their respective solicitors put written cross examination questions that had been prepared by trial Counsel. Particular commendation is needed for both Solicitors, Ms Whelan and Ms Knowles-Wright, and Counsel, Ms Croly and Counsel, Ms Dudbridge, for their assistance in making that process work. It will inevitably have required significant additional work and preparation.

It has, however, resulted, in the Court’s Judgment, in a transparent process which has enabled each party to put the essence of their respective cases and test that in evidence. Both parties are vulnerable and have needed these additional measures to have been able to advance their own cases with dignity but also to be tested on that evidence without unduly compromising their own well-being. Neither party would have been able to withstand cross examination in a Courtroom and whilst the process is not as dynamic as interactive cross examination it is, in the Court’s Judgment, the best that could be achieved in a timely, proportionate and humane way.

The video evidence was followed by a day’s Court hearing on 15 October 2024. H was able to attend for a short time. W did not. Both Counsel have prepared skeleton arguments and spent the day presenting their client’s competing positions and commenting on the evidence in final submissions.

This Judgment has been handed down in writing to avoid the inevitable stress of a Court hearing to deliver the Judgment. That has inevitably led to a short delay in the Judgment being handed down, however with the video evidence available to be reviewed at leisure, this does not impact on the Court’s assessment of the evidence.

The first stage of determining the application is to determine any factual issues. The burden of proof rests on the proponent of a particular face. The standard of evidence required to establish it is a balance of probabilities. Once factual issues have been resolved the Court must establish the extent of the financial resources available to the parties and then determine how to divide them between them in accordance with the principles set out in s25 Matrimonial Causes Act 1974.

W assets that the marriage came to an end in late 2011/early 2012 when she discovered that H’s former partner remained on the legal title to property W. It is not disputed that W had invested sums of money (unspecified but in the region of £50,000) into the hotel when she had discovered that it was not as successful as she had thought. W is the financially dominant party to the marriage, and she set about putting the hotel’s (property W) finances in order and converting it to an HMO. W however considers that the discovery that H’s former partner remained on the deeds was “one lie too many” and she moved into a separate bedroom. The parties’ intimate relationship ended at this point. Her plan had been to move back to one of her own properties in the summer of 2012 when her children had finished important exams, and the tenants could be moved out. She did not do so because the following year H was diagnosed with Parkinson’s, and she didn’t consider that she could leave him. She remained on the strict understanding that she was his carer only and not his wife until their ultimate physical separation in 2021, 9 years later.

H asserts that whilst the quality of the marriage was poor he did not consider that W was only his carer. He pointed out that they still went on holidays together, attended functions where other people were led to believe they remained married, went away in the camper van together and operated as a couple despite not having a physically intimate relationship. W slept in a separate room due to the involuntary spasms he suffered as a result of his diagnosis. During the intervening years the parties moved 3 times and at no point did W execute her stated intention to physically separate and “end” the marriage despite having the obvious opportunity to do so. Whilst it was discussed that he may have to leave the family home when his care needs became overwhelming that was not in the context of the marriage having ended.

H gave evidence carefully. It was clearly a struggle for him to focus on and formulate answers to the written questions. This was particularly so when the questions had multiple parts or related to recalling precise dates. Ms Whelan did an admirable job of putting the questions in a more simplified form to enable him to answer. Much of his evidence was that he could not recall, especially around dates and times. When permitted, he could provide a free narrative of his own recollection but was not equipped to respond to the rigours of even gentle and sympathetic questioning. As he said on several occasions “I know what I want to say but my mouth just won’t let me say it”. His evidence needs to be seen through the lens of his difficulties.

In comparison W was confident and assertive in her evidence. She provided a strong, repetitive self-affirming narrative. Whenever she spoke of H it was in a derogatory way or with a negative tone. She pushed aside any suggestion that the marriage subsisted notwithstanding the absence of an intimate relationship as unfounded. It was clear between them as a couple that she was his carer and nothing more. The fact that she became the joint owner of property W was due to her financial investment. Despite being financially astute those figures have never been provided by her. It is unclear to the Court whether the acquisition of half the equity and income of the business did in fact reflect the financial investment she made. She became the licensee of the HMO and recipient of the income into their joint account because she was more the financially able party. She appeared not to notice the obvious conflict of interest in her management of H’s affairs to her own advantage despite only being his carer and holding a Power of Attorney for him. At times her evidence was inconsistent stating either that H was unable to manage his affairs and she had to manage them on his behalf as his carer, whilst also asserting he knew exactly what was going on and had capacity to remortgage the hotel (property W) and place it in their joint names which showed he agreed with her decisions. In contrast to the remainder of her evidence she was extremely vague about the receipt of £66,000 into her sole name from a remortgage. She states it was to repay her investment in property W which was also placed into joint names at that time.

W was particularly critical of H for not caring for her as her dissociative episodes increased. She believes, having been told by someone else, that he did not promptly call the police during one of her dissociative episodes. She is also critical of him checking on her in the home to see if she was alright. Despite maintaining to the world at large (mortgage companies, benefits agencies, friends at social occasions) that they remain married for 9 years W was insistent that the marriage had ended in 2011. She accepted that their “relationship” continued but maintained that it did not have the essential quality of a “marriage”.

Marriage is a social contract of mutual care, support and financial obligation until it is ended either by death or divorce. The quality of a marriage or relationship is as varied as the human condition itself. The presence or absence of an intimate relationship is but one of the factors which may indicate that a marriage exists or not. Whilst their personal relationship may have been strained, they lived in the same house, pursued the same leisure opportunities at the same time and looked out for one another. They operated a joint business and placed assets into their joint names (to W’s obvious advantage) after she maintains that their “marriage” had ended. W’s indignation at H’s alleged failure to report her missing evidences that she considered that he had an obligation to do so. She expected him to care for her. If the parties were connected only by her being his carer, as W maintains, he would have had no obligation to do that. Neither of the parties pursued romantic or intimate relationships with anyone else.

Further there were multiple opportunities for W to have formally left the marriage as she repeatedly stated she wanted to. The parties moved 3 times and at each opportunity W could have introduced their separation but she did not. It appears that it was only when she was told by others of a potential link between her dissociative episodes and the strain of the relationship that she sought his summary eviction by Family Law Act orders.

Further, even after 2012 when W asserts that the marriage had formally ended, she continued to treat H’s assets as joint. She secured the transfer of his only asset into their joint names and directed its income into their joint account in 2017. As his carer she did not distance herself from “his money” or “her money” but appears to have assumed control of his only assets as repayment for her investment. To this end £66,000 was transferred into her sole name in recognition of the sums that she had invested as well as half of the equity in the property and its income stream. More of this follows below, however there is a clear understanding on her part that this was an asset that she could utilise as it was “theirs”. She also utilised £24,000 from the joint account to purchase a motorhome for them to enjoy holidays together. H of course being unable to drive due to his diagnosis. The flavour of W’s financial transactions is that half of H’s assets were hers and all her assets were her own. She treated them as if she were entitled to them as a wife.

Further W asserts that in 2021 when discussions about separation became more pressing, she drew up a separation agreement (allegedly at H’s insistence) which provided that she would retain all her properties and he would retain his. At that point property W was still being sold. In addition, he would leave his share of property W to W in his will. The parties signed this using their neighbours as witnesses. A local firm of solicitors advised that the Court would not approve such an agreement as it was unfair. Irrespective of the terms of the agreement the timing of it coincides with W ceasing to be H’s carer and their relationship as she termed it coming to an end. This would indicate that prior to that time a relationship of mutual and financial cooperation continued. Had it not done so, there would have been no need for a written separation agreement. That is not a feature of a carer relationship but more descriptive of the legal dependence of a marriage.

In conclusion, I am not satisfied that this was a marriage of only 4 years duration. The absence of an intimate relationship does not persuade the Court that the marriage had come to an end. The parties continued to physically care for one another (whether welcome or not), lived in the same house and purported to any external world that their marriage existed until at least 2021 when W resigned as his carer. On a balance of probabilities therefore I am satisfied that their relationship had the essential features of a marriage, and that the marriage continued for 13 years until 2021.

During the marriage the parties lived in all of the properties irrespective of their legal ownership save for property Z. The parties lived in property T between 2017 and February 2020 and property Y from 2020 until their separation in late 2021.

It is argued that W did not feel able to require H to move out of any of the properties until property W was sold which did not occur until after the parties had separated. Her kindness should not therefore be “used against her” by categorising the properties as matrimonial. I do not accept that argument as I am not satisfied that the marriage had ended as W has asserted. On the contrary I consider that the marriage subsisted and therefore they were living there as husband and wife. This therefore makes both property T and property Y matrimonial in nature.

The premium bonds that W accrued from the joint account were used towards the purchase of property Y and also to pay for an extension and other works to that property. The joint account received the profits from property W. W had her own sources of income from the rental payments from her tenanted properties. The acquisition and renovation costs for property Y were therefore from joint assets. The assertion that W therefore paid for property Y from her own assets as a home for herself is misleading. Whilst she did use funds in her sole name, those funds were transfers from the joint account and therefore matrimonial. Thus, matrimonial funds were used in the acquisition of property Y which together with the parties’ occupation enhances the matrimonial nature of property Y.

Property Z is an asset that W brought to the marriage and in which neither party has ever lived. The rental income was paid to W and not paid into the joint account. It does not appear to have been “mingled” with joint assets during the marriage. Whilst H may have undertaken some minor remedial work this is not sufficient to have established a matrimonial claim to this property. To the extent that the categorisation is relevant property Z is a non-matrimonial property.

It is argued on behalf of H that W has withdrawn assets from the joint account totalling £239,091. £116,350 was paid into premium bonds in her name and the balance of £75,628.04 into her sole account. W has failed to provide any adequate answers to why she transferred these funds to herself.

Some £66,000 is said to have been a repayment for the sums that she invested in property W. No evidence of the funds invested (although the principle is accepted) has ever been provided. W’s evidence about this is the only part which is vague and uncertain in comparison to the remainder of her very robust evidence. She “believes” this was the repayment of her investment in property W. In addition to this actual repayment, property W was transferred into joint names thereby providing W with half of the equity and the associated income stream. It is unclear to the Court why W should in effect be compensated for her investments twice.

W argues that she was required to secure cash investments because either H overspent, gave money to his daughter and/or she invested equally in premium bonds for them bond and H spent his allocation. Ms Croly carefully sets out in her skeleton argument that this is factually incorrect. There are no records of significant sums (save for £1,100) being given to H’s daughter and therefore this cannot have been a reason to secure the cash reserves. Likewise, whilst initially both parties accrued premium bonds eventually this stopped with W simply purchasing more and more in her sole name. Given that she was his carer and had power of attorney for his affairs this is particularly concerning.

W is financially astute and clearly the financially dominant party in this marriage. She has secured half of H’s assets and income stream and the refund of her initial investment. This appears to the Court to be financial transactions to her own advantage to the detriment of H. Simultaneously she has retained and “ring-fenced” her own assets and increased their value by withdrawing funds from the joint account without there being reciprocal payments to H. W clearly believes that if assets are in her sole name following a “short” marriage then they will be retained by her. However, one has to consider the proper source of those assets, particularly where there has been a redistribution of joint assets into the sole name of a financially dominant party without any reciprocal distribution to the financially vulnerable party. The conclusion that the Court reaches is that W is very much of the view that “what is his, is hers, and what is hers is also hers”.

H argues, and I accept, that W’s current cash assets should be characterised as matrimonial because they originate from the parties’ joint account. It is stated in the skeleton argument that there has been “misappropriation” of these assets and therefore there should be an add back. In this case there are insufficient assets to add back, notionally or otherwise, alleged misappropriation. In the circumstances the proper analysis is to characterise W’s cash assets as matrimonial as this is what they are – they derive from joint assets.

The Court concludes that property T, property Y and W’s cash assets are matrimonial assets and property Z is non-matrimonial.

Whilst the parties may have purported to conclude a separation agreement in 2021 it has never been produced. Under the agreement H would only retain his half of property W and W everything else. Quite properly solicitors advised that it would not be enforceable, and it is not actively argued in these proceedings that the existence of the agreement is determinative of the outcome.

The most relevant factor is need, both for housing and/or income.

W argues that H’s housing needs are met in his current housing association property and that due to the degenerative nature of his condition it is likely any capital given to him will be used to meet his care needs and/or he would require institutionalised care. He is therefore appropriately housed and there is no pressing need to sell any property to meet his housing need.

H argues that in time his care needs will increase and therefore he needs to have provision for a live-in carer which will not be possible in his 1 bedroomed housing association property. He also argues that there is a disparity between their resultant standard of living as W lives in a spacious 2 bedroomed property with garden and additional rooms, paid for in part with joint funds. His flat does not have a garden and is only 3 rooms in total.

W has a particular need for a quiet property as the noise associated with a young family next door previously led to an increase in her dissociative states. It will be difficult for her to leave her current home if it has to be sold and she will find a move against her will very trying. Additionally, any sale of the rental properties would significantly diminish her income, but H’s income would be unaffected.

The Court strives to achieve a “fair” outcome in its application of the Section 25 criteria, whilst acknowledging that this may also not result in a party getting what they “want” in any resolution. Rhetorically, is it fair for one party to be housed in a property that may not meet their physical needs in the future and the other to live in a more than adequate property paid for in part from joint funds? On the one hand it may be that H will not require live in residential care at home. His condition may progress so that only a care home could meet his medical needs or it may be unaffordable in the longer term. That trajectory is uncertain and unknowable. The current medical evidence supports increasing care at home for patients with long term chronic conditions rather than in any alternative facility. It is also correct that any lump sum H may receive (whether used for housing or not) may be utilised to repay his social care costs in due course. That is an unavoidable consequence of the current funding arrangement for adult social care but should not deprive a party from receiving a fair share of the assets following a lengthy marriage to meet their housing and/or care costs.

W argues that property Y meets her current housing needs, in particular due to its tranquil location. W’s dissociative episodes increased whilst she was living at property T due to the noise from the neighbouring young family. In terms of housing need however she does not require a live in carer and has no particular need for a property of that size other than the natural desire for friends and family to be able to stay. Her current condition is monitored through a tracking device. In comparison H has a medical need for additional living space which is supported by the current medical evidence.

In the circumstances therefore the Court concludes that H’s need is for a 2-bedroomed property to enable him to meet the needs of his medical condition. W’s need is for a tranquil home of 1 to 2 bedrooms. Both parties aspire to a standard of living that may be unaffordable, but which would enhance their quality of life, namely a property with a garden. There is evidence within the bundle that such a home can be purchased in the region of £150-£175,000. There are obviously properties in excess of that bracket, but these are beyond the parties’ means.

W argues that she may also be required to purchase appropriate support now that the responsibility for locating her passes to the Ambulance service rather than the Police. Whilst care co-ordinators are disapproving of this national change there is no evidence that it will necessitate the provision of private care costs for W. The Ambulance service respond within their resources as would the Police. The current proceedings are contributing to her poor health, and the resolution of these proceedings is anticipated to improve her condition, whilst acknowledging that an outcome she does not prefer may lengthen the time that this may take. In acknowledging that this may be a concern, it may therefore be important for W to retain some cash reserves to meet this cost in the event that it arises or to be able to meet it from her income. The latter would mitigate against the sale of the rental properties. The extent of such a fund is difficult to identify as there is no evidence of the cost of such care nor hypothetical calculation based on probability of occurrence.

Both parties have outstanding legal fees. W has had a significant proportion of her legal fees met from joint funds on a like for like basis. She would only agree to utilise joint funds if she received the equivalent amount despite having the means to meet her own legal fees, in comparison to H who was not able to do so at all. In each of their respective proposals the parties argue that their respective outstanding legal fees should be met on a basis of need whilst ignoring the liability of the other to still meet their fees as well. Net the assets are £389,350. The grim reality is that unless the Court takes account of how these costs are going to be met, each party will be presented with an unrealistic and therefore unaffordable housing fund which would defeat the primary purpose of meeting their respective housing needs and/or justify the inevitable disruption sales of the properties would cause. To this purpose the Court has treated the outstanding costs are per the ES2 to be a statement of needs. In the Courts view this is a fair outcome because W has in effect had her fees met from joint funds despite being able to meet this cost herself. The only joint asset has therefore been diminished as a result. Given that her case was for H to only have half of the joint assets this has resulted in him being offered the most miserly lump sum of £10,138 whereas she has derived a £26,000 benefit in payment of her legal fees.

Further the reality is that the legal fees are going to have to paid from the capital assets as neither party has the level of income to make any significant payments towards those costs. All of the assets are matrimonial save for property Z and thus the fees are going to be met from the joint funds one way or another.

Ordinarily the costs of the proceedings would fall to be determined at the conclusion of the case on the basis of no order unless pursuant to FPR 28(6) the Court considers it appropriate to order otherwise taking into account those matters set out in FPR 28(7). Costs not included in the ES2 would fall into this category.

How can the parties’ respective housing needs therefore be met? The Court’s finding on housing needs necessitates at least two of the properties being sold. One option would be, as argued for by H, to sell all the properties and distribute the proceeds (with or without funding costs provisions) to meet the parties’ housing needs. An alternative would be to consider selling only the rented properties and/or redistributing W’s cash assets to meet the parties’ housing needs with her remaining in property Y. In the latter scenario that would generate a gross housing fund for H of £194,100. After he had paid his outstanding costs, he would be left with £136,728. W would remain housed but with a reduced income out of which to meet her outstanding costs of £11,160. Such an outcome would not be sufficient to meet H’s housing costs, either party’s liability to meet their own costs and further would leave W without any cash reserves to meet her potential private care needs (if required). Save for the advantage to W of retaining her current property this does not appear to the Court to be a realistic resolution as it does not substantially meet the needs of both parties, only one.

It appears inevitable that property Y will have to be sold in order to generate a fund of money sufficient to meet the needs of both parties. It is also likely that one or both of the rental properties would also have to be sold for the same reason. There is no conceivable reason why the parties would not seek to maximise the sale of these properties by selling them without tenants in situ where relevant.

W is likely to find the sale of any or all of the properties very difficult to accept. There is a risk that this may for a period increase her vulnerability to dissociative episodes. Further the sale of the rented properties will halve her income to £17,628 (£1,469). Currently W has a stated an income need of £1,203 per month. This would appear to be an under estimation as her figure for food is only £70 per month whereas that would appear to be a weekly figure. I have therefore increased her stated budget needs by £231 to represent a monthly cost i.e.: £1,434. She could therefore meet her current needs even on a reduced income in the event of a sale of the rental properties. She has claimed a future income need of £2,558 per month which would be unaffordable without her rental income. The increase is to factor in the cost of an enabler and additional luxury items such as holidays. Even if one or both of the rental properties were sold, she can still meet her basic income needs.

This is a lengthy marriage of 13 years. The parties are in advancing age, each with significant health conditions. H needs a 2 bedroomed property to support his deteriorating condition. He currently only lives in a 1 bedroomed flat which was provided as emergency accommodation whilst W retains all of the matrimonial assets in her sole name and to her sole benefit. That is not fair and there needs to be a redistribution of the assets to more equally divide them between the parties. The starting point is an equal division.

The argument that there should be a division of the assets in accordance with their current ownership is fundamentally flawed; i.e.: W retain all of her assets and provide only a nominal payment to H. It does not recognise nor meet the needs of H for housing, care and payment of his legal fees nor recognise his entitlement to an equal share of the matrimonial assets. Considering all of the s.25 criteria there is no particular factor which justifies a departure from equality of the matrimonial assets in this way. W may argue that property T was brought by her to the marriage, as explained above, it is a matrimonial asset.

If the matrimonial assets were to be divided equally the effect of distribution would be as follows:

In the Court’s view this is not a fair distribution of the financial resources for 2 reasons. Firstly, and obviously, the net result does not meet H’s housing need. Secondly by leaving each party to be responsible for their own legal fees it unfairly rewards W for her dominant financial position. She was able to meet a significant proportion of her own costs from her cash assets. Those assets being derived in large part from her stockpiling joint income in her sole name. By placing the burden of the outstanding legal fees on each party individually, W receives an unmatched benefit and H is unduly penalised. In the court’s view, the outstanding fees of both parties should therefore be deducted from the matrimonial assets prior to their distribution, and this establishes parity between them. The figures for costs below include the assumption that the parties would use their existing cash funds to meet some of the liability. Such a distribution is as follows:

Such a distribution would meet the parties’ housing needs, albeit at the lower end of the available bracket. If property Z were retained this would provide a further income for W and thereby bring her annual income, including pension to £27,228 which is comparable to H’s. Such a distribution would meet the parties’ basic needs. It divides their mutual assets equally. It also reflects the non-matrimonial nature of property Z and meets the delicate balancing required to apply the s.25 Criteria to a case where the assets are so limited.

The Court therefore orders:

The usual rule in financial remedy proceedings pursuant to FPR28.3(5) is that there is no order as to costs subject to FPR28.3(6) which provides that the Court may make a costs order requiring one party to pay the costs of the other party where it considers it appropriate because of the conduct of one party in relation to the proceedings. In so deciding, the Court must consider the factors in FPR 28.3(7) which includes:

“(b)

any open offer to settle”

(c)

whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue

(f)

the financial effect on the parties of any costs order”.

H claims his costs from the date of the expiry of his open offer being 27 November 2023 in the sum of £77,404. The costs in this case have been for both parties disproportionately high. Ms Croly’s skeleton argument records that H has incurred £156,485 in total and W £61,513. That is more than each party will now have to rehouse. In part the costs are high because of the additional health needs of the parties. H struggles to concentrate and focus and thus giving and understanding legal advice takes longer and is more reliant on written documents. The costs of the legal services order were reserved to the final hearing.

However, there is one stand out feature in this case that has prevented any form of sensible discussion on settlement and that has been W’s contention that this is a short marriage. This has influenced all of her attempts at settlement – the only open offer until the dawn of the final hearing was for her to purchase a property in her name with the right of H to live there. She has made no or no serious attempt to consider any resolution of this case which did not involve her retaining exclusive control of the financial assets, as she did during the marriage. The open offer of less than 3% at the final hearing was derisory.

The argument that this was a short marriage was manifestly not supported by the external evidence and W’s insistence to proceed with it has put H to unnecessary expense and stifled any prospect of a commercial settlement. In the Court’s view it was not reasonable to pursue this argument and in any event W has not been successful in it.

Whilst H has not been successful in respect of his open position, he has been considerably more realistic in his approach than W. Both parties have health conditions which have made the management and execution of this case difficult.

There are few assets in this case to make ends meet and any costs order will have an adverse impact on the distribution of the assets that the Court has ordered. W remains the financially dominant party with resources to spare in addition to her housing needs. A costs order will not therefore impact on her housing needs as the Court has assessed them to be. It may result in the sale of property Z which would reduce her income but still leave her with cash reserves to supplement it, if required.

In the circumstances the court considers that W’s pursuit of the issue of the duration of the marriage was unreasonable as it lacked any realistic prospect of succeeding. It has marred her entire approach to this case. A costs order is therefore appropriate. The Court summarily assesses the contribution that W must pay towards H’s costs in the sum of £25,000 inclusive of VAT. This is in respect of the costs which have already been incurred and paid and not in respect of outstanding costs which are accounted for above. By its nature this is a broad brush assessment of a proportion of the costs incurred.

The Court issued a written Judgment in draft on 9^th December 2024 following a contested final hearing on 15^th October 2024. Ms Dudbridge (Counsel for W) requested that the handing down of the Judgment be delayed until 10^th January 2025 by her email at 17.13 on 23^rd December 2024. She indicated a request for clarification would be forthcoming but was having difficulty taking instructions due to her client’s poor health. On my return from annual leave on 7^th January I listed the handing down of the Judgment on 10^th January 2025 as requested and released the attendance of Counsel and the parties at their request. I informed the parties that I was on other Judicial Business from 13-24 January and would be unable to deal with any handing down/clarification within that time. On 21^st January 2025 at 15.59 I received a request for clarification of the Judgment.

On 7^th February I put Counsel on notice that I would consider the request for clarification and the resolution of the drafting of the order on 26^th February and that a draft order, ideally agreed, but with points of dispute if not, needed to be submitted. I have received the following emails in that regard:

Has the court considered the role of conduct within these proceedings, particularly concerning the how this may have affected W’s ability to physically leave H? The court was going to look at the Non-Molestation Order (December 2021) but no mention has been made of this.

Paragraph 37 refers to an amalgamation of the names of Property T and Property Y rather than just Property Y.

If the court has decided to look at 50/50 matrimonial capital, why has the same not been applied to pensions? The court has the benefit of a pension sharing report to aide these calculations.

Does the costs order factor in the £20,000 already paid under the Legal Services Payment Order?

The judgment provides for a total capital pot of £224,699 on the court’s figures to meet W’s housing need, potentially reducing to £199,699 once the cost order has been met (if that is to be how it is construed). However, the court accepts at paragraph 49 that W has ‘a particular need for a quiet property’ but this is not aligned with the comment at paragraph 53 that ‘there is evidence in the bundle that such a home can be purchased in the region of £150,000-£175,000’. All properties provided by H exceed this figure. It may be that the court is referring to the properties provided by W as part her narrative statement: Two properties in Village A - these were stated unsuitable for W as the first did not have a garden and the other was a two-storey semi-detached property. The other properties put forward as suitable for H are all apartments within complexes, so it is unclear how these qualify as a ‘quiet property’.

The court is asked to consider a sequence of the sale properties so as not to leave W homeless in the interim. It appears that the rental properties will need to be sold first, and sale completed before Property Y can be marketed and sold. To do otherwise would leave W renting and further reducing her limited housing pot, whilst H is able to remain in his current property and preserve his capital fund.

W is concerned that the court considers her to have an income of £12,600 from Property T and £9,600 from Property Z. This is the total rental income but does not take into account the mortgage, maintenance and insurance etc. The overall profit for both houses was £6000 in the last tax year, of which W owed £800 in tax.

Additionally, W requests that this judgment be published with names and property names appropriately redacted