Jolanta Cemke v Krzysztof Roland Cemke

This is a reserved judgment following a financial remedies final hearing on Monday 16 June 2025. It is not a precedent – I am a Deputy District Judge and am simply applying established law to the facts. This judgment is sent to the National Archive in accordance with the President’s Publication of Judgments Practice Guidance issued on 19 June 2024.

The case was heard in private. Both parties are adults and there are no minor children. There have been proceedings in open court in the past. I circulated a draft of this judgment on 18 June 2025, stating that my preliminary view, balancing the various competing interests, was that the judgment should not be anonymised. I asked the parties to indicate if they disagreed. Neither party seeks anonymity. The judgment is therefore not anonymised.

Both parties are litigants in person. Mrs Cemke represented herself at this hearing. A QLR, Ms McCauley-Slowe, was appointed by the court to cross-examine Mr Cemke on her behalf. Mr Cemke was represented by Mr Hayes of counsel on a direct access basis.

I will refer to the parties by the shorthand of “W” and “H”, notwithstanding that they have been divorced for 15 years. No disrespect is intended.

The background facts can be stated briefly. The applicant is W. She is 52 years old. She suffers from back problems, anxiety and depression. The respondent is H. He is 50 years old and is in good health. The parties cohabited and then married in 2000, separated in May 2010 and divorced later that year (the decree absolute is dated December 2010). The parties have one adult child, who is about to begin postgraduate study.

There is one relevant asset: the FMH in west London. It is held in the parties’ joint names. H severed the joint tenancy on 28 September 2010. It is therefore held as tenants in common in equal shares. It has an agreed value of £512,500. After deducting the mortgage (also in joint names) and costs of sale, the equity is £280,000. Otherwise, there are no assets of note and each party has approximately £10,000 of debt. Both work full-time. W earns c.£45,000 gross (£36,000 net) per year. H earns c.£72,000 gross per year (£52,000 net).

W’s open proposal is dated 26 September 2024 and is in the alternative: either

W’s claim is put on the basis that, between separation in 2010 and Form A in 2023, she paid c.£98,000 for rent and c.£19,000 for utilities and should be reimbursed for that expenditure. In addition, she claims £154,000, representing 50% of the equity in the FMH (based on an old valuation). At the outset of the hearing, W acknowledged that her proposal should reduce by £14,000 to reflect the current equity in the FMH. When cross-examined, she was unable to give a credible explanation about why she should receive more under option (b) than option (a). In closing submissions, W presented a third alternative: that each party receive half of the equity in the family home. I note in passing that options (a) and (b) could never result in a fair outcome. There is no justification for W receiving nearly or (or more than) the only asset in the case.

H’s open proposal is dated 26 January 2025 and was updated at the beginning of the hearing. He proposes that the FMH be transferred to his sole name and that he pay a concurrent lump sum of £100,000 to W. He would procure W’s release from the mortgage. This would provide W with 36% of the equity. H relies on two factors. The first is that he asserts that his need is greater than W’s, because he needs space to store tools and materials of his trade. The second is the delay between the decree absolute in 2010 and the Form A in 2023, which he says should reduce W’s entitlement.

Both parties propose a clean break in life and death.

The parties’ separation was acrimonious. W accused H of domestic abuse. She left the FMH with the parties’ child and had to find emergency accommodation. About 4 months later, she began to rent her current home. H was prosecuted and acquitted after a 6-day Crown Court trial. H accuses W of fabricating the allegations and of pursuing this claim as a form of abuse against him.

Since the parties separated, H has continued living at the former matrimonial home (“FMH”). He has paid the mortgage on an interest-only basis, which currently costs a little less than £1,000 per month. W and the parties’ child lived in rented accommodation. Her rent currently costs c.£1,500 per month. There were lengthy Children Act proceedings between 2010 and 2016. It is H’s case that W obstructed him from having a meaningful relationship with their child. I am not in a position to determine whether or not that is true, nor is it necessary or proportionate for me to do so in order to resolve this application.

W issued a Form A on 4 August 2023. The FDR was held on 4 October 2024. The parties were unable to settle and the first Final Hearing was listed on 30 January 2025, with a time estimate of 1 day. That hearing was ineffective because there was no adequate bundle and neither party’s QLR had attended. The court had directed QLRs for both parties. The court service had responded to state that only one could be appointed. That QLR appears to have been appointed for H. H had instructed direct access counsel, and the QLR had therefore been stood down.

On 30 January 2025, DDJ Shelton adjourned and re-listed the Final Hearing to today, and gave directions. Those included:

When I read into the case on the portal, there was no bundle. I received a position statement from Mr Hayes on the morning of the hearing. I was presented with a supplemental bundle prepared by the respondent that runs to 237 pages. Mr Hayes’ Note referred to the bundle prepared by the applicant for the 30 January 2025 hearing. The applicant confirmed to my usher that she had sent the bundle to Harlow (where litigants in person have to send documents for uploading to the portal) over a week before the hearing. A copy was emailed to the court on the morning of the hearing. It runs to 477 pages.

Two QLRs attended court, though H was again represented by direct access counsel. I discharged H’s QLR at 10am. W’s QLR had been provided with only 44 pages and needed time to read the necessary material.

I took the view that it was appropriate to grasp the nettle and deal with the Final Hearing today. It appeared that the issues were limited and capable of resolution. I found that adjourning the case again would be an inappropriate use of the court’s increasingly limited resources.

I called both parties into court at 10am. I explained that I could not possibly read over 700 pages in the limited time available to me. Both parties agreed to the hearing proceeding. Neither sought another adjournment. I also refused permission for the applicant to lodge a 59-page position statement, which had apparently been emailed to Harlow with the bundle, but which had not been sent to me. I already have the benefit of a Form E, s.25 statement and further statement from each party. A skeleton argument for a Final Hearing in the FRC below High Court level must be limited to 15 pages. Litigants in person are subject to the same rules as represented parties.

The parties agreed that the issues were limited to:

For the avoidance of doubt, neither party contended that the other’s conduct was relevant to the outcome of the case.

I adjourned the hearing to 11.30am to enable myself, counsel and the QLR to read the remainder of the relevant documents in the bundles. It transpired that the main bundle contained all of the necessary documents, and so it was unnecessary to refer to the supplemental bundle. Both parties gave evidence under oath. The hearing concluded at 4pm. I am satisfied that both parties were able to put forward the evidence and arguments that they needed to advance, and that both had a fair hearing. I was unable to give judgment during the court’s working day, and so reserved judgment.

I have made allowance for the fact that English is neither party’s first language.

I found that W was genuine when giving evidence about her housing need and mortgage capacity. However, I found much of the rest of W’s evidence to be tainted by the way in which she perceives H to have treated her. She told me that she had been left on the street when the parties separated, that she alone brought up their child, and that H had only paid child maintenance of £8 per week. I found some of her evidence unsatisfactory. She did not accept that H had provided evidence of his income, when it was demonstrated that he had done so. W is highly suspicious of H and, in her evidence, accused him of hiding money from the court and of renting rooms at the FMH and hiding that rental income (or the savings from that income) from the court. She had no evidence to substantiate either allegation, both of which were made for the first time at this hearing. When cross-examined, H denied both allegations. I therefore reject W’s allegations. I also find it unlikely that H would have been able to save significant funds whilst, at the same time, being in debt.

I found H’s evidence to be more straightforward. He had provided corroboratory documentary evidence to support most of his contentions, even when some evidence was nearly 20 years old. However, I found that aspects H’s evidence were tainted by his feelings about how he perceived W to have treated him. For example, when asked how he had expected W to afford her own home after they separated and also to continue to pay half of the mortgage, he dissembled.

I will deal with the relevant evidence when setting out my findings below. I have made my factual findings on the balance of probabilities. In light of my assessment of both parties as witnesses, I have relied most heavily on contemporaneous documentary evidence where it is available, but have also taken the parties’ oral evidence into account.

In terms of the general approach to financial remedy applications, Mr Hayes quoted the following well-known passage from the judgment of Peel J in WC v HC [2022] EWFC 22, [2022] 4 WLR 65, [2022] 2 FLR 1110:

“21.

The general law which I apply is as follows:

(i)

As a matter of practice, the court will usually embark on a two-stage exercise, (i) computation and (ii) distribution; Charman v Charman [2007] EWCA Civ 503.

(ii)

The objective of the court is to achieve an outcome which ought to be “as fair as possible in all the circumstances”; per Lord Nicholls at 983H in White v White [2000] 2 FLR 981.

(iii)

There is no place for discrimination between husband and wife and their respective roles; White v White at 989C.

(iv)

In an evaluation of fairness, the court is required to have regard to the s25 criteria, first consideration being given to any child of the family.

(v)

S25A is a powerful encouragement towards a clean break, as explained by Baroness Hale at [133] of Miller v Miller; McFarlane v McFarlane [2006] 1 FLR 1186.

(vi)

The three essential principles at play are needs, compensation and sharing; Miller; McFarlane.

(vii)

In practice, compensation is a very rare creature indeed. Since Miller; McFarlane it has only been applied in one first instance reported case at a final hearing of financial remedies, a decision of Moor J in RC v JC (2020] EWHC 466 (although there are one or two examples of its use on variation applications).

(viii)

Where the result suggested by the needs principle is an award greater than the result suggested by the sharing principle, the former shall in principle prevail; Charman v Charman.

(ix)

In the vast majority of cases the enquiry will begin and end with the parties’ needs. It is only in those cases where there is a surplus of assets over needs that the sharing principle is engaged.

(x)

Pursuant to the sharing principle, (i) the parties ordinarily are entitled to an equal division of the marital assets and (ii) non-marital assets are ordinarily to be retained by the party to whom they belong absent good reason to the contrary; Scatliffe v Scatliffe [2017] 2 FLR 933 at [25]. In practice, needs will generally be the only justification for a spouse pursuing a claim against non-marital assets. As was famously pointed out by Wilson LJ in K v L 20111 2 FLR 980 at [22] there was at that time no reported case in which the applicant had secured an award against non-matrimonial assets in excess of her needs. As far as I am aware, that holds true to this day.

(xi)

The evaluation by the court of the demarcation between marital and non-martial assets is not always easy. It must be carried out with the degree of particularity or generality appropriate in each case; Hart v Hart [2018] 1 FLR 1283. Usually, non-marital wealth has one or more of 3 origins, namely (i) property brought into the marriage by one or other party, (ii) property generated by one or other party after separation (for example by significant earnings) and/or (iii) inheritances or gifts received by one or other party. Difficult questions can arise as to whether and to what extent property which starts out as non-marital acquires a marital character requiring it to be divided under the sharing principle. It will all depend on the circumstances, and the court will look at when the property was acquired, how it has been used, whether it has been mingled with the family finances and what the parties intended.

(xii)

Needs are an elastic concept. They cannot be looked at in isolation. In Charman (supra) at [70] the court said:

“The principle of need requires consideration of the financial needs, obligations and responsibilities of the parties (s.25(2)(b); of the standard of living enjoyed by the family before the breakdown of the marriage (s.25(2)(c); of the age of each party (half of s.25(2)(d); and of any physical or mental disability of either of them (s.25(2)(e)”.

(xiii)

The Family Justice Council in its Guidance on Financial Needs has stated that:

“In an appropriate case, typically a long marriage, and subject to sufficient financial resources being available, courts have taken the view that the lifestyle (i.e., “standard of living”) the couple had together should be reflected, as far as possible, in the sort of level of income and housing each should have as a single person afterwards. So too it is generally accepted that it is not appropriate for the divorce to entail a sudden and dramatic disparity in the parties’ lifestyle.”

(xiv)

In Miller/McFarlane Baroness Hale referred to setting needs “at a level as close as possible to the standard of living which they enjoyed during the marriage”. A number of other cases have endorsed the utility of setting the standard of living as a benchmark which is relevant to the assessment of needs: for example, G v G [2012] 2 FLR 48 and BD v FD [2017] 1 FLR 1420.

(xv)

That said, standard of living is not an immutable guide. Each case is fact specific. As Mostyn J said in FF v KF [2017] EWHC 1093 at [18];

“The main drivers in the discretionary exercise are the scale of the payer’s wealth, the length of the marriage, the applicant’s age and health, and the standard of living, although the latter factor cannot be allowed to dominate the exercise”.

(xvi)

I would add that the source of the wealth is also relevant to needs. If it is substantially non-marital, then in my judgment it would be unfair not to weigh that factor in the balance. Mostyn J made a similar observation in N v F [2011] 2 FLR 533 at [17-19].”

On the topic of delay, Mr Hayes referred to D v W (Application for Financial Provision Effect of Delay) [1983] Lexis Citation 1357, [1984] Fam Law 152. In that case, the wife had left the family home and moved to live with her mother, who was a secure tenant in local authority accommodation. The parties’ two children had initially lived with the husband but later moved to live with the wife. 6 years after the divorce, the wife applied for a property adjustment order. The wife had another child from a new relationship. The husband was living in the former matrimonial home with his new wife and their baby, who had suffered from a brain injury. The relevant passage from Booth J’s judgment is below:

“There are certain detrimental consequences of delay. The first is that delay engenders bitterness and hostility between the parties which is detrimental to the whole family and in particular to any children of the family. The husband in this case is aggrieved at the attack that is now made upon the home in which he has been living for the past ten years. The wife on the other hand feels deprived of her money and of her right to live there. Secondly, the delay inevitably increases costs. It leads to a multiplicity of affidavits which are filed in order to deal with the ever-changing position of each of the parties. Inevitably it leads to the exchange of correspondence over a protracted period between solicitors, and no doubt also leads to the attendance of the parties upon their solicitors. All those matters add up in costs.

Further, with the change in property valuation, and with inflation as it is in our present economic situation, as well as the changes in the parties' own situations and the commitments that they take upon themselves, the whole case can be materially altered; and the ability of the parties to cope with any orders that the Court might otherwise properly have made upon the merits of the case may be put in jeopardy. Indeed, delay can put the Court in the simple position of not being able to do justice between the parties according to the merits of the case. Unless it can be clearly shown that one party bears the greater responsibility for the length of delay than does the other, the Court may be left with no alternative but to make an order which does not reflect the merits.

The responsibility for the delay in this case rests to a certain extent with both parties. The husband, after the custody order of November 1977, paid scant regard to orders of the Court. He adopted a recalcitrant attitude towards his wife, bitterly resenting the fact that she had obtained the custody of the children. He had then no incentive whatever to proceed with due diligence towards a final hearing of the property and financial applications. It was in the wife's interests to proceed with diligence, and she simply did not do so. Despite the valiant efforts of Mr Pointer to the contrary, I am bound to find that on her part -- and whether it be upon her part or whether it be upon her legal advisers from time to time, I know not and cannot judge -- there was delay in prosecuting this application. It was, as I have said, a straightforward, simple case. The Court required a minimum of documents. The essential thing was to bring it before the Court for hearing. The Court assisted on no less than three occasions with clear directions to achieve just that simple end, and those directions were ignored.

The result is that the Court cannot now make an order which reflects the merits of the case…

I have come to the conclusion that the husband in the circumstances must find one way or another -- and it will be difficult for him to do so -- the sum of £2,500, but that over and above that, he should not be required to pay any capital at all, either in respect of a lump sum or in respect of the arrears of maintenance. I will discuss with Counsel in Chambers how best that payment for £2,500 may be expressed and implemented.

I am well aware that to any onlooker, this must seem an extraordinary situation. The wife who has been a hardworking wife and a good mother to the two children, is faced with the loss of her half share of a property which on any view must be worth £10,000 to her and £14,000 if I ignore the question of costs, for a mere sum of £2,500 when she is already owed by the husband the sum of £2,000. But that gives point to what I said earlier in my judgment, that I find that I am in an impossible situation when it comes to dealing with the merits of this case. Events have overtaken the merits, and the Court now cannot do proper justice to this wife. It is a matter in which I have the utmost sympathy for her, and which I much regret, but it does point to the absolute necessity to proceed with all due expedition in financial applications.”

I have also considered other authorities on this point:

Briers v Briers [2017] EWCA Civ 15. In that case, the parties had separated in 2002 and decree absolute was pronounced in 2005. Between 2006 and 2008, the husband paid £150,000 to the wife, the wife became the sole owner of the matrimonial home and the wife transferred her shares in the business to the husband. In 2013, the wife later applied for financial remedies. The judge at first instance held that there had not been a full and final settlement and directed the husband to pay a further £1,600,000 to the wife and to transfer 25% of his pension to her. The Court of Appeal dismissed the appeal, primarily because it had been open to the judge to make the findings and decision that he did (§8). Sir Ernest Ryder, Senior President, dealt with delay at §22:

“The judge's subsequent treatment of the impact of delay was a textbook exercise. He did not accept that a delayed application requires an applicant to begin from a position where the burden of justifying any distributive remedy is on the applicant so that s/he receives nothing unless it can be justified. That hypothesis carries with it an elision of the concepts of entitlement sharing and needs provision which would be contrary to authority. In any event, that is not what was anticipated in Wyatt v Vince. The exercise to be conducted by the court is an inquisitorial exercise using judgment. Just because an application is delayed, even severely delayed, does not have the consequence that the court's function on an application for financial remedy is abrogated or curtailed. Delay, its explanation and effect, is an additional factor.”

A v B (Financial Remedies) (No 2) [2019] 1 FLR 17 is an example of a claim failing because of delay. Baker J (as he then was) found that the reason for the delay was that the parties had reached an informal agreement, which was fair, and that each was satisfied with that agreement. That agreement was a significant factor to consider in any subsequent claim. The husband had fallen into difficulties but the wife had voluntarily supported him. Baker J held that it would not be reasonable to expect the wife to meet the husband’s needs – he had remarried and his new wife had a property in which they could reasonably live. The wife had arranged her finances on the assumption that the husband would not and could not make any claim against her. The husband’s claim was dismissed.

HAT v LAT [2024] 1 FLR 755 is a case about interim orders. Having reviewed the case law, Peel J helpfully summarised the position:

I will deal with the disputed issues in turn:

I will not adopt W’s proposed approach, namely to compensate her for the rent that she has paid. It would be disproportionate to conduct an audit of both parties’ expenditure between 2010 and 2025. More importantly, that is not the way that courts deal with applications like this. The rent and mortgage interest payments have been spent and cannot be unspent. I need to reach a fair outcome and take all of the s.25 factors into account. That includes both parties’ needs. As I observed earlier, the consequence of W’s open proposals would be to leave her with nearly all of the assets and H with nothing (or potentially less than nothing). That would not be fair.

I see no logical reason to reduce what W receives because of the delay between 2010 and 2023. Both parties delayed, and H was not led to believe that W had abandoned any claims. The FMH remained in joint names. H has had the benefit of living in a far better property than W, but at a lower cost. That is because he had the benefit of the joint mortgage. W has been unable to buy a property of her own. It is fair to reflect the fact that, since the date of separation, H has used his post-separation income to repay £36,600 of family debt. I will round this to £40,000, to include replacing the windows at the property. The equity in the FMH is £280,000. H should have credit for £40,000. The remaining £240,000 should be divided equally.

In terms of housing need: