Bristol Civil and Family Justice Centre
Before :
HIS HONOUR JUDGE HYDE KC
Between :
OO | Applicant |
- and - | |
Respondent |
Henry Pritchard (instructed by Payne Hicks Beach) for the applicant
The respondent was unrepresented and did not attend
Hearing dates: 19-21 May 2025
APPROVED JUDGMENT
His Honour Judge Hyde KC
Background
OO (to whom I shall refer as ‘the wife’) married QQ (‘the husband’) on 8 May 2011. They had met at university and began living together in 2008.
They have two children; the first, aged 11, and the second, aged eight.
In April 2020 the wife was diagnosed with stage II breast cancer. In November 2022 it was found that the cancer had spread to her lungs and the wife received a terminal stage IV diagnosis.
Sadly, an MRI scan, in December 2024, confirmed that what were considered to be benign lesions in the brain were in fact malignant. 6 metastases were treated by radiotherapy in January 2025 and, mercifully, responded to that treatment.
The prognosis for the wife is not good. The most recent evidence obtained from the consultant clinical oncologist concludes by stating
Prognosis is clearly, very difficult to predict but as might be expected once the disease has spread to the brain, the prognosis is invariably limited and on average might be 12 to 18 months.
In March 2024 the parties separated (16 years after they had started their cohabitation). He wife applied for divorce in July of that year. She served her notice of intention to proceed with a claim for financial remedy (by Form A) on 1 August 2024.
Criticisms are made about the husband’s lack of engagement with the exchange of Forms E but, that aside, the husband initially engaged with the process.
He was represented at the first appointment at which Her Honour Judge Cope made an order for maintenance pending suit, having heard competing arguments from Counsel instructed on both sides.
However, by 6 February 2025 the husband had dis- instructed his solicitors and become a litigant in person. Since that time, the husband has not engaged in the process. He wrote to the court, by email, on 20 March 2025 (copying the email to the wife’s solicitor) to say that he would not be attending the FDR hearing on 4 April 2025.
He did not attend the pre-trial review which took place before me on 1 May 2025 and he has not attended this the final hearing.
The wife’s solicitors, using the email address from which the husband had emailed the court on 20 March 2025, have sent the husband amongst other documents:-
the PTR bundle;
the PTR order;
the wife’s section 25 statement (which sets out in terms the orders that she is inviting the court to make); and
the wife’s N 260.
Moreover the wife’s solicitor sent the husband by email (the same address) a letter, dated 14 May 2025, drawing to his attention to a number of matters including:-
that the final hearing on 19 May 2025 had been listed at the first appointment on 22 January 2025, at which he had been present and represented;
that he had been emailed the order of 4 April 2025 which confirmed the final hearing remained as listed;
the terms of my order dated 1 May 2025 which provided that the hearing would proceed in his absence and that final orders would be made.
The letter confirms that the hearing is an attended hearing, provides the husband with the address of the court and states that the wife and her representatives will be at court from 09:30.
Predictably the husband did not attend.
Divorce is a stressful process for anyone to have to experience. However for the wife, the stress has been particularly pernicious as it runs alongside having to manage her health and her anxieties for the future well being of the children. She has tried to shield them from that anxiety.
The husband’s disengagement has only added to that stress. Moreover the disengagement has deprived the court of information that it would otherwise have received. In particular he has failed to provide:-
responses to the wife’s questionnaire
evidence on the CGT, if any, that would be payable on the family home or a flat, in his name, previously occupied by the parties as a family home;
updating disclosure;
mortgage capacity and housing needs/property particulars; and
a section 25 statement.
Crucially, his lack of engagement means that since February 2025, there has been no opportunity to compromise the proceedings.
The wife was represented with considerable skill by Mr Henry Pritchard. I heard evidence from the wife and read the bundle which runs to nearly 700 pages. I asked the wife questions on areas that I needed more clarification or which I considered the husband would have explored had he been present.
The wife was courteous, good humoured and measured in her responses. I considered her to be an honest witness who was genuinely trying to help me when answering my questions. If she did not know the answer to a question she openly said so. I found her extremely impressive not least because I was satisfied that her aspiration for financial relief are entirely driven by her concerns for the welfare of the children.
Current Circumstances
Following separation, and until fairly recently, the wife lived in the family home in Swindon (hereafter ‘the family home’). However following the discovery that cancer had spread to her brain, she lost her driving licence and moved to a village in Wiltshire, close to the children’s school.
The husband lives in the parties’ first family home a flat in Swindon (hereafter ‘the flat’).
The children attend an independent fee paying school. I am told the children are settled at their school and thriving. The fees are paid by the wife with monies from a trust, about which more later.
The children spend equal time with their parents.
Resources
Properties
There are the two properties, to which I have referred above. Each has recently been the subject of a market appraisal with guide prices of £900,000 to £950,000 and £180,000 to £190,000 respectively. The market appraisal is the only objective evidence that I have as to value. The husband has not engaged in this process.
There is a mortgage of £332,305 secured against the family and an early repayment charge. On the ES2 it is shown as £15,474. It is likely to have reduced but I have no updated figure. Taking costs of sale at 3% and using a mid range sale price of £925,000 this would produce equity of about £549,500. The flat has a mortgage of £63,263, secured against it. Taking a mid point sale figure and costs of sale at 3% would give equity of about £116,200.
The family home is in joint names. The flat is in the husband’s name, he having purchased it in 2008, shortly before the parties cohabited. They lived in it from the outset of their cohabitation and it became their marital home following their marriage in 2011. They remained there until moving to the family home, following its purchase in 2013. After the move, the flat was let out (which the wife managed) producing a rental income for the family.
I consider each of the properties to be matrimonial assets. Although the husband bought the flat, which represents an unmatched capital contribution from him this was offset when the family home was purchased. The parties, in part, used a deposit from their respective parents to enable the purchase, with the wife’s parents contributing £130,000 as compared with £50,000 from the husband’s parents. Further notwithstanding the flat was purchased by the husband it became the family home and once rented provided an income which went into the matrimonial pot.
Bank Accounts
There are some modest sums in bank accounts, although the husband’s figures are not up to date. The total according to the ES2 is about £11,000.
Investments
The husband has a modest ISA investment of c.£800.
The wife has investments of £264,361. These need some further explanation.
There is a Rathbones Investment Portfolio which was a gift to the wife at birth from her grandfather (then £5,000). The portfolio grew and was not touched by either of the parties during their relationship. At the time of the wife’s Form E it stood at over £90,500 but, inevitably, it has been decimated by legal fees and now stands at about 1/3 of that value (£33,147);
There are two Investments with Hargreaves Lansdown: a fund and share account (£156,955) and an active Savings account (£74,259) making a total of £231,214)
These derive from a Family Settlement (the Settlement) which was settled, initially in the sum of £10, on 10 December 2019. It is a discretionary settlement. The settlors and trustees are the wife’s parents. The discretionary beneficiaries are the settlors’ children and remoter issue; charities and any other person allowed to be added under the terms of the trust.
On 11 December 2019 a deed of assignment recorded that the wife’s parents were entitled to payment of £1,400,000 from the wife’s brother . On 11 December 2019, with the agreement of the wife’s brother, they assigned £650,000 of the sum owed to them personally to themselves as trustees of the Settlement.
On 4 January 2021, by a further deed of assignment, the wife’s brother gave £325,000 to the wife on the basis that she took on responsibility to repay the trust this amount. He was thereby released from his obligation to repay this sum to the trust.
It does not appear that there is any loan agreement between the trustees and the wife’s brother and neither, therefore, between the Trustees and the wife;
The wife says that the express purpose of the loan was to facilitate payment of school fees. She produces emails which show, as the school bills arrived, she would let her father know of her intention to make payment using that fund and checking that it was ok to do so. In accordance with that agreement she has solely used the funds for the payment of fees save for in extremis when she has been forced to dig into the funds to meet legal fees and rental payments. She has written to the Trustees explaining what she has had to do and explaining that she will replenish all the funds that she has paid other than on school fees to ensure the school fees fund is not reduced.
Although labelled a loan, the purported liability is not recorded at the full £325,000 on the ES2 but rather as a liability to the trust in exactly the same sum as the remaining funds – i.e. £231,214.
On further exploration in oral evidence it seems clear that so long as the monies are spent on school fees, which was the intended purpose, the trust would not enforce repayment. The facility was made available at a time that one of the parties’ children was particularly struggling at school and it was clear that private education would better meet the child’s needs. The wife’s brother’s children were also in private education and so the decision was made to facilitate the private education of the parties’ children.
Given the absence of any original loan document, terms of repayment and the way the case has now been pleaded, I am not satisfied that the trust would enforce repayment of the full £325,000 or indeed the sums that have not been spent on school fees. However I am satisfied that the intended purpose of the advance to the wife, in 2021, was for the payment of school fees. Moreover I am satisfied that the wife fully intends that it should be used for that purpose if possible. It is clearly in the children’s interest that their fees are funded. Thus I conclude that the remaining funds in Hargreaves Lansdown are not resources available to the wife and should be ignored. This has the same result as adopting the presentation advanced by Mr Pritchard on the form ES2.
The wife also seeks to augment this fund from the sale of the family home to replace the c.£50,000 that she has spent on her legal costs and living expenses. Although I understand the principle, I consider this will ultimately be a choice for the wife.
Before leaving this topic it is appropriate here to consider what may have been part of the husband’s case had he attended. It is implicit and sometime explicit from the letter he has written to the wife that he considers the wife’s family to be rich and that they will support her financially going forward.
I do not know the extent of their means. They contributed to the purchase of the family home and they have set up a trust for the children’s education. However there is no evidence that the wife has resources that emanate from them. The only asset which originates from a family gift is the £5,000 she was given at birth from her grandfather which she nursed until she was in a position where she could no longer protect. That arose as a result of her having to meet her fees – they were not met by her parents. The husband makes reference to an anticipated inheritance. This refers to the wife’s belief at one stage that she might receive an inheritance from her grandmother. This did not materialise.
There is nothing that I have read or heard that would enable me to conclude that the wife has additional resources available to her from her family other than in a time of crisis.
Chattels
The chattels are inconsequential and should be ignored.
Trusts
Each party is a beneficiary of trust/trusts.
I have dealt with the wife’s beneficial interest in the Settlement above. She has no other trust interests.
The husband is a beneficiary under 2 trusts of which his parents are settlors –“Settlement A” and “Settlement B” referred to collectively as the 2017 Discretionary Trusts.
The trustees are the husband’s parents and a professional trustee from Excello Law. At the date of the settlements (September 2017) the trusts’ funds comprised 3 properties in Swindon (in which each trust exclusively had, or shared with the other trust, an equitable interest).
The primary beneficiaries include the children and grandchildren of the settlors. Moreover, in the event that one of the settlors were to die, the surviving spouse is also within the class of beneficiaries.
The husband asserted in his Form E that he had not received any payments from the 2017 Discretionary Trusts. Excello Law, in a letter attached to husband’s Form E, stated that the husband had not directly benefitted from the trust but in recent years annual distributions had been made (out of income) for the grandchildren;
The wife doubts this assertion – she points to the husband’s bank statement which received monies from the trust fund in 2024 (£3,000 – allegedly £1,500 per child) and a letter from Excello Law to the husband in 2022 in which the husband was asked to provide bank details so a distribution of £5,000 could be made from the 2017 Discretionary Trusts to his family. The children have no separate bank accounts and there is no evidence of their having received the distributions, it appears they simply went into the family coffers via the husband.
Unsurprisingly the wife raised questions about the 2017 Discretionary Trusts seeking:-
A list of the beneficiaries;
Schedule of trust property;
Value of trust property and
Confirmation that the payments to which I have referred above were use for the family’s income needs.
None of those questions has been answered.
Whereas the wife does not seek to put a figure on it, she asserts this is most likely a resource available to the husband.
I have no reliable information about the trust. The wife can point to 2 distributions over the course of the last 3 years. Each of them was modest. If the schedules produced by the husband are to be accepted the distributions are from income, as opposed to capital and the trust income is not great.
I do not consider that I have sufficient evidence to find, or infer, that this is a capital resource that is immediately available to the husband. However it does seem likely that there will be further modest income distributions and I am not satisfied that these will be earmarked for the children. It may well be that it is a capital resource that materialises for him, and his siblings in time but it does not feature in my analysis of the assets available for distribution.
Business Interests Business T
Neither party has any business interests. However, in the same vein as above, the wife seeks to suggest that the business for which the husband works, which is owned by his parents, is not only an income resource but also a likely inheritance. This requires a little further explanation:-
The business is “Business T”. The shares are owned by the husband’s parents. The business is clearly successful. In the most recent accounts obtained (September 2023) it had turnover in excess of £11million and cash in the bank of over £1.425m. It had fixed assets of nearly £3m, although it is not known on what basis they were valued. Its net asset position was stated to be over £5m;
The husband has worked in the business for the entirety of the parties’ relationship. He is the Associate Commercial Director. He has no contract of employment. The wife asserts that his role is far greater than that. She told me that he was responsible in large part for the development of the business and its success. She explained that the husband has fashioned the structure of the business so that there are two associate directors in post which enables him to step back and enjoy the revenue without being as hands on as he was when he was developing the business into the successful entity it now is;
Ultimately there may be a sale to these directors (something acknowledged by the husband) but there is no reliable evidence that a sale is imminent;
The wife told me that the husband remains a key decision maker in the business – he has been part of what she believes the business’ restructuring with the setting up of a holding company, although she does not know the detail. She tells me there was a recent valuation of the business which the husband organised but she (and the court) has no further detail about that;
Historically the husband has received a salary and what is labelled a discretionary bonus. The husband states that it is performance related (see #13 of his MPS statement) but appears to be ignorant of any performance related targets indeed he contends that there has never been any discussion about the bonuses he has received, he has just accepted what has been given to him.
The most recent information about the remuneration he has received, annually, from Business T comes in the form of P60s for the years 2021, 2023 and 2024. 2022 and 2025 are missing and those for 2021 and 2023 were produced by the wife (she, as the husband contends, managed the parties’ finances). The husband produces no tax returns to further illuminate his total income. The average total annual net income received from Business T equates to about £140,000.
In his MPS statement the husband asserted that he had been told, despite what he had received in the past, that he would no longer be receiving a bonus for tax year ending 2025. He produced letters in support (dated December 2014) from the Directors (his parents) which contend that nothing more than basic pay will be received by him.
His father’s letter states in terms that the husband’s assertion that the bonuses are performance related is inaccurate, it reads:-
In recent years I have afforded QQ some degree of assistance via Business T payroll but it should be firmly noted that it would be deluded to consider any of these perks strictly performance related.
The letters complain of the husband’s allegedly less than adequate performance over recent years - his father states:
He has loyally served the company throughout some favourable periods which warrants remembering and backing accordingly. Being my son, there is unavoidable nepotism which affords him even more patience and consideration which would rightly be given to any else in a similar situation. QQ is very aware and thankful for how he has been treated in recent years.
As I have stated earlier in the judgment the husband has provided no updated information about the business. He has failed to answer questions aimed at establishing his income from the business over the last 5 years and his intentions about the future. As part of her, unanswered, questionnaire the wife asked the husband to confirm that his parents would be willing to swear a statement and attend court to give oral evidence. They have done neither.
Both the husband and his parents allude to the possibility of the husband changing his role in the business to reduce stress or even his leaving the business altogether to become a teacher. The wife suggests his remuneration is, at least in part, a reflection of all his historic endeavour which grew the business such that it is now able to afford to pay the husband a considerable amount regardless of the time he commits to it.
She asserts that any suggestion that the husband’s remuneration will be reduced is not credible. The letters from the parents were deployed by the husband during the time the court was considering MPS. It is suggested on the wife’s behalf that they represent a clumsy attempt to minimise his liability for periodical payments.
The wife draws further support for her argument that, in truth, the husband will continue to benefit from the business at a similar level of remuneration to that which he has received historically, from another part of the husband’s case presentation -namely, his assertions that he is now indebted to Business T. The husband purports to have liability from loans from Business T on 25 July 24 (£5,000); 18 September 2024 (£10,000); 13 November 2024 (£10,000) and 1 December 2024 (£10,000). He produces loan agreements to support his assertion. There are a number of observations to be noted about the loan agreements:-
There is none for the 1 December 2024 agreement;
None has been signed by or on behalf of Business T;
Notwithstanding the agreements are purportedly signed as deeds between Business T and the husband, the husband’s signature is witnessed by his father (a director of Business T);
Notwithstanding one party is a corporate entity, the agreements refer to the liability continuing should either party die before the sum owing has been paid in full and, following from that;
If the husband dies her personal representatives should repay the sum owing to Business T and if Business T liquidates or becomes insolvent the money becomes owing and should be payable by QQ to the personal representatives of QQ’s estate. This makes no sense at all;
Each loan agreement contemplates that further loans may be advanced and, if so, will be recorded on a Memorandum of any further sums loaned, however this device was apparently never deployed, instead separate loan agreements were purportedly generated and signed on each occasion;
The husband contends that he was repaying the loans at the rate of £350 per month by deduction form his salary (reflected in the payslips from September to December 2024). This is inconsistent with the terms of loans which state that they fall for repayment only once he has received a payment from the financial remedy proceedings, with interest only beginning to run thereafter. It is curious that the repayments of £350 remain constant when, on his case, the husband’s liability to Business T has increased from £15,000 at the time of receipt of the September payslip to £35,000 by the time the December salary is received.
Therefore, the wife asserts, that the purported loans are a sham and a device deployed to present an artificially low figure for the husband’s income. Mr Pritchard described it as an obvious attempt to redesignate the husband’s income which, I am further reminded, started at the same time as this litigation. Mr Pritchard goes further and submits that, if his analysis is correct, the fact that the husband’s parents (as parents or Directors of Business T) have striven to misrepresent the true picture underscores the actual position, namely that the husband will continue to receive annual sums equivalent to those that are recorded in the P60s.
Doing the best I can without the attendance of the husband or his parents, having listened to the wife, considered the arguments, and scrutinised the documents I am satisfied that the sums set out in the available P60s are likely to continue for the husband:-
The husband’s parents acknowledge the very significant input that the husband had in the development of the business;
I accept the wife’s evidence that he still has a very significant role as decision maker even though his on the ground participation has fallen away (in part facilitated by the structure that he put in place);
There is not a shred of evidence to support the husband’s claim that his remuneration is in part performance linked – on the contrary the evidence appears to be that he received a constant and significant regardless of what was considered by his parents to be his input;
I consider the loans have been fabricated for the purpose that Mr Pritchard identifies. I do not find them to be authentic and consider they reflect an attempt to deflect the court from the reality – namely that the husband continues to receive the same or similar level of remuneration with bonus.
I have carefully considered the parents’ letters and in particular whether they have allowed the husband’s remuneration to be kept for the last few years by way of offering short term support to the family following the wife’s diagnosis of cancer and the impact that had upon the family and the husband’s ability to work but, I consider I cannot rely on the contents of the letters. Indeed I find it is more probable that they were written with the purpose of deflating the wife’s claim.
The P60s represent the only objective evidence I have in relation to the husband’s remuneration from Business T. It would have been open to the husband to produce a P60 for this year – he has not done so. A small run of payslips is of little value, given the bonus was usually received outside the window of the payslips provided. I have not been persuaded by the evidence of the husband or his parents that there will be a variation in the sums received. I therefore proceed on the basis that the husband has and will have an income available to him of not less than £140,000 net per annum.
Looking at it from the other end of the telescope I am not satisfied that I can realistically infer that the husband is likely to receive more from Business T and/or his parents at this time by way of addition income. The historical evidence of significant parental fiscal support, directly or indirectly, is limited to that which he has received from Business T. Having found that the “loans” are not authentic and having not been persuaded by the letters I am satisfied that the husband’s parents were working with him to try and reduce his liability to the wife. They are clearly close to him and I am satisfied that they have significant means and would come to his rescue in a time of crisis and to meet short term financial need (it may well be that Business T have paid the husband’s legal fees for example) but I do not extend that to a finding that year on year the husband will receive more than the average in the P60s.
I do not attribute any capital value to the husband from Business T at this time but from what I have read it is reasonable to infer that, were it to be sold, he is likely to receive some of the proceeds directly or indirectly. Although he has 2 siblings none has played any part in the development of the business.
The husband has a mortgage capacity which he accepts is £350,000. It is at least that and probably very much greater.
Taking into account the husband’s interest in the 2017 Trusts, his earning capacity from Business T and my finding that is likely to benefit at some stage from the sale or restructure of Business T, I consider that he is in much stronger financial position than the wife. Any short term hardship that he faces from meeting the terms of my order is very likely to evaporate over time.
Pension
Each of the parties has very modest pension provision to a similar level.
Liabilities
Turning to liabilities - the wife has presented the trust money as a liability (which I have dealt with above) and she has outstanding legal fees of £86,210. In addition she has £5,172 by way of a student loan meaning a total liability of £91,382.
Further the husband purports to have a liability under a personal loan dated 27 June 2024 from his parents in the sum of £1,591.20. The written agreement, produced by the husband, is no less troubling than the purported loans from Business T which I have rejected as being genuine:
The husband’s mother witnessed his signature notwithstanding she is a party to the agreement;
The agreement defines the sum owing as monies that Business T Surfacing Ltd has purportedly lent, notwithstanding Business T Surfacing Ltd is not a party to the agreement. The Deed also records The purpose of the this Deed is to formally record the Principal Sum that Business T has made [to the husband].
The wife asserts this loan should be ignored. I agree. I do not consider I can place any evidential weight on it given its idiosyncrasies and the absence of explanation by the husband or his parents.
There are three other debts recorded in the husband’s column of the Form E: - The first is a debt to Currys’ Finance for a computer which is accepted as existing by the wife (although the balance will have dwindled since the sum provided by the husband). However the wife asserts that the husband did not need to purchase a computer (one is likely to have been provided by Business T), or use finance, even if he did. It is suggested this was yet another device to deflate his income.
There was a liability in the sum of £9,003, being unpaid service charge instalments on the flat from 1 April 2022 to 1 October 2022. On the husband’s own evidence this should now have been discharged.
Finally, there are outstanding legal fees taken from a document produced in January 2025, £13,860, which is now out of date.
Summary of capital for distribution ignoring pensions
Taking into account my findings above the sum available for distribution can be summarised as follows.
Income
I have considered the husband’s income above.
The wife works on a flexible contract having previously worked for Business T. Her net income is £1,673 per month. She is paid £25 per hour and this sum is calculated on the basis of working 20 hours per week.
It is clear from the evidence that this is the maximum that she can earn in her present condition. I am quite satisfied that she would like to work for greater hours or for higher remuneration but accept that her current health condition prevents her from doing so. Sadly, the wife faces the prospect that she will not be able to sustain this level of work.
In addition to her earned income, the wife receives PIP and Child Benefit, bringing her total monthly income to £2,654.
She also receives a contribution of £500 per month from her father which is solely to fund her alternative cancer protocol – Jane McLelland’s How to Starve Cancer. This is not income that is available to her.
Although not an income, the wife receives, along with the children and the husband, the benefit of medical insurance through Aviva paid for by Business T. This is clearly of critical importance to her. She has established that the insurance can continue regardless of whether she remains married to the husband and notwithstanding that she is no longer an employee of Business T. The husband has been unwilling to confirm that it will continue. He asserts that it is not within his gift to ensure that it does. I find his stance to be disingenuous. I have no doubt that if he wished it to continue he would be able to ensure that it did. I consider he has caused unnecessary stress to the wife by not being accommodating on this issue. Were the wife to have to seek cover elsewhere, at best it is likely that her the costs would be greater, at worst her known condition would be excluded meaning that she would have to either go without private treatment/monitoring, or pay for it herself.
Needs
Housing need
The wife is committed to rental property until April 2027 under the terms of her rental agreement. I find it was an appropriate move for her to make in the circumstances given the sudden loss of her licence, the need to be near the school and the impact upon the children of the move (amidst their parents’ divorce and the deterioration in the health of the mother).
At the end of that term she aspires to purchase a home. I consider that to be a sensible aspiration.
The husband also needs a home.
It seems to be common ground that a suitable home could be found (with some inevitable comprises) for between £400,000 to £500,000 to house each of the parties. There is no reason why there should not be parity of accommodation given the children spend equal time with each parent.
Income need
The wife asserts her global needs to be in the region of £6,105 per month excluding the cost of rent or a mortgage. She has significant medical costs and costs associated with her illness (for example that she cannot drive). It is she who has been responsible for the majority of the children’s expenditure including, for example, the costs of their school uniform.
Having regard to the standard of living, and the available resources I find this a reasonable representation of her needs, albeit as I explain below I consider the wife will have to wait until sale of the family home before reaching this figure.
The wife suggests that this figure will increase once she manages to purchase a property. She suggests there will be additional costs associated with home ownership. Her current budget does not include costs associated with driving and the upkeep of a vehicle, which would be triggered if, as she hopes, she will is able to drive again. To deal with this, the wife has suggested that, on purchase of a property, there will be additional costs amounting to £1,540 per month which is 40% of the rental figure she currently pays, there is not a great deal of science behind the figure. I consider this to be on the high side and would reduce it to £1,000 per month.
The husband has not provided any updated evidence of his needs. The schedule attached to his Form E asserts total expenditure of £11,656 per month and the schedule of interim needs £9,766. Focusing on the main schedule there are 3 significant figures that can be easily extracted - the sums paid in respect of the accrued service charge debt on the flat (which should now have been discharged), the allowance for periodical payments of £1,500 which will be superseded by any order I make and £1,574 being the mortgage on the family home which will no longer be payable once the home is sold.
Further, in my judgment there are a significant number of other claimed expenses which can be significantly pared - for example £400 per month on clothes (work and casual); £250 per month on hair/grooming; £230 per month on the children’s clothes (which I accept are primarily bought by the wife).
I assess that the parties should be able to enjoy a broadly similar lifestyle. However in my judgment it is plain that the wife’s expenditure is going to be significantly greater than the husband’s for the following reasons:-
The husband has access to a number of perks from the business (including the provision of a Porsche and its maintenance) to which the wife does not have access;
The wife has and will continue to have significant expenditure associated with her illness in the form of prescriptions, travel to and from appointments, counselling/therapy and diet/supplements, all of which are vital to her, and the children’s welfare;
The wife’s health means there are bound to be times of fragile health during which she will need to be able to access domestic help;
The wife is responsible for most of the day to day expenses of the children including their clothes/shoes etc.
The wife has a critical need for the continuation of medical insurance to cover the procedures to which she is regularly subjected. It is plain this is necessary for her and, indirectly, for the children – it is important for them that their mother has immediate access to treatment and monitoring whenever she requires it. I have set out my observations about the husband’s attitude to this above.
Law
In reaching my decision I have had regard to all the factors in s.25(2) of the Matrimonial Causes Act 1973. Even if I have not addressed them specifically, I have considered each before reaching my conclusions.
The first consideration is, of course, to the welfare of the children.
My task has not been made easy by the absolute disengagement by the husband. This, notwithstanding that he has regular contact with the wife as a result of the arrangements for the children which mean they pass between their parents regularly during the course of each week.
Mr Pritchard has reminded me of the law relating to non-disclosure and adverse inferences, in particular relying on the well known passages of Moher v Moher [2019] EWCA Civ 812 (#86 to 91) and Crowther v Crowther [2021] EWFC 88 (#58).
He also took me to M v M [2020] EWFC 41 (#65-68) in which Peel J considers the factors that might enable a court to conclude that the wider family may assist one or other spouse.
I have considered those and the careful oral submissions that Mr Pritchard made by way of expansion. Above all I have tried to reach a decision which is fair to the parties and meets the needs of the parties and the children.
Distribution
If the sharing principle were my predominant consideration, I would divide the assets equally. I see no basis for an unequal division apart from need. However need is at the heart of this sad and unusual case.
The children need to be shielded as much as possible from the inevitable decline in their mother’s health.
Although the wife’s prognosis is poor she is determined to lead life as normally as possible and to make decisions as if she had a long life expectancy. This positivity is in my judgment not only legitimate but also important for her own wellbeing and for that of the children.
I consider that she should have the opportunity to purchase a property and that she should have a fund of £450,000 to do so. Equally I consider this sum should be available to the husband from the distribution I propose to make and from his capacity to raise a mortgage.
The husband appears to have accepted that the wife should keep the equity in the family home. In my judgment she should do so. The parties cannot afford to keep it, therefore it must be sold immediately.
The wife will receive the equity in the family home and the husband will keep the flat. The husband has been given the opportunity to provide figures for any CGT that might be payable by him. He has not done so. I shall assume there is none but if I wrong, any liability that arises is to be met out of his own resources not from the proceeds of sale.
Assuming the parties otherwise keep their own assets and liabilities and that the joint accounts are closed and divided equally the net effect will be as follows:-
This will notionally give the husband just over £100,000 to put towards housing. To that can be added his mortgage capacity of £350,000 providing the housing fund of £450,000.
The wife receives just over £500,000 but she would like to augment the school fees fund by the £50,000 that has been spent elsewhere. As I have discussed above that is ultimately a choice for her, however given the modest assets available and my acceptance that £231,214 should be ignored as being earmarked for school fees, I do consider that this is a resource upon which the wife can call to a small extent, albeit I consider that the she is right to endeavour to augment the school fees fund so as to secure private education for the children for so long as possible. I consider this below. Whether she uses it in the manner I have suggested or places it all back in the school fees fund I am satisfied that her housing fund will be in the region of £450,000.
I consider there is no liability left to satisfy in respect of the service charge on the flat. If that is wrong, the husband should discharge it.
Turning to periodical payments. The wife clearly needs periodical payments, she cannot meet her needs without them. Moreover this is not a case where I can state with any confidence that there will come a time when she can adjust without undue hardship. On the converse, periodical payments are likely to form a substantial chunk of her income for the remainder of her life.
I have concluded the wife’s long term needs are £6,105 rising to £7,105 when she is in a home which she owns. Whilst the wife is in rented accommodation and the family home has not sold there are very significant expenses because, in effect, the parties have the cost of 3 homes. I consider that during that time the wife’s budget should remain at the level assessed by HHJ Cope at £5,550 and the wife should continue to meet the expenses associated with the family home, as is the current arrangement, save that the husband should continue to discharge the mortgage until sale. I do not consider the husband can afford to make significant further contributions at this time and, it seems to me, almost inevitable that he will have to remain in the flat until sale of the family home. As the figures below demonstrate until the family home is sold the husband is left with limited income. Over this short period I consider I can safely assume that if he experiences real difficulty his parents/Business T will come to his aid.
Once the family home is sold, each of the parties will have the opportunity to purchase. The wife is subject to the term of the rental agreement from which I cannot presume she can escape. During that time, I do not consider that the husband will be able afford to pay all of the rent and contribute to the wife’s needs to enable her the budget of £6,105 (excluding rent) which I have found reasonable, whilst at the same time having sufficient to fund a mortgage. I consider it in the interests of the children that the husband is able to find better accommodation than the flat as soon as possible.
It is therefore during the period following sale of the family home and prior to the wife purchasing a replacement property that the wife could utilise some of the £50,000 which is surplus to her housing needs and which she would like to use to augment the school fees fund. I do not consider this unreasonable. In the table below I have considered the position if she were to contribute £1,000 per month from capital following the sale of the former matrimonial home to her needs/rent until the end of the rental period.
Once the wife purchases a home I have allowed her an uplift of £1,000 (which should be index linked) to cover additional costs. The cost of rental falls away
and the husband can then afford to meet the shortfall without the wife having to make further contribution.
With some rounding, I have calculated that the husband would need to pay periodical payments during the joint lives of the parties, between now and sale of the family home at the rate of £6,750 per month, following sale they should drop to £6,300 per month and following the end of the rental term/purchase of an alternative property (whichever the earlier) drop again to £4,450 per month.
This would result in the following:-
The disparity in these figures demonstrates:-
Why I do not consider it appropriate to increase W’s budget until after the sale of the family home;
That the husband will have a particular lean period prior to the sale of the properties but I am satisfied that if there were a short term crisis his parents/Business T would support him;
The wife should be expected to make some, albeit limited contribution from capital whilst she remains in rental accommodation.
The Husband will further have to meet his accommodation costs out of his budget.
I consider the disparity is justified by reason of the additional expenses and vulnerabilities of the wife. The figures are predicated on the wife continuing to earn £2,654. Sadly, I am satisfied that she will not earn more. There is a real possibility she will earn less.
Equally sadly, although I consider this must be a joint lives order, the evidence demonstrates that it is probably not going to last for very many years.
The wife offers a charge to the husband of 25% of the sale proceeds of the family home, to be secured on any new property she provides. I consider this to be fair. Taking into account pension provision it produces a small departure from equality (about 44/56 in favour of the wife), this is justified on the basis of needs. The charge will be triggered on the wife’s death.
Net effect taking into account pension and charge
There are two further orders I propose to make in further of the charge:-
Given the husband’s attitude to this litigation, the fact that he has (on 2 occasions) been late with maintenance payments and the wife’s vulnerability, the charge should form security for the periodical payments that I have made;
I have already explained that I consider the husband can control whether the wife continues to receive the benefit of the family’s health insurance policy. I cannot make an order against Business T that it should do so. However if it does not continue, the husband’s 25% charge should be reduced by £1 for every £1 that the wife has to pay in securing a replacement insurance and/or for the payment of any medical expenses that would otherwise have been covered by the existing policy.
Finally I consider the husband’s disengagement means that the wife should have conduct of the sale of the family home. She should be entitled to chose the agents and the property should be sold at a price considered to be reasonable by the agents. If the husband contends that the wife is delaying the sale he will be at liberty to make an application.
That is my judgment.