C, Re

This is an appeal from District Judge Davies (now retired) sitting at the Chichester County Court, in relation to an order made on 2^nd November 2006. The hearing took place before him over some two and a half days in September 2006. The District Judge gave his reserved judgment in a written document on 4^th October.

The Factual Matrix

During the course of this marriage the parties lived, what Mr Cohen Q.C.(on behalf of the husband) has described as “a good middle class lifestyle.” For the bulk of the marriage they were entirely reliant upon the husband’s income from his dentistry practice. They lived in a nice house called “Mañana”, which had four bedrooms and a study. I have seen the photographs of the Estate Agents particulars when it was purchased in 1984 for about £95,000. It obviously was a very satisfactory family home.

The case would have been a simple if these facts had been the only relevant circumstances; however this family were particularly fortunate. I have already outlined that the children were beneficiaries of a grandchildren’s settlement set up by Mr F. In addition, the wife was the beneficiary under a number of family trusts, which gave her a substantial entitlement. For most of the marriage she was not in receipt of any great benefit because the trusts contained shares in the family, which ran a number of undertakers and owned crematoriums.

In 1995, that business was the subject of a hostile takeover, which resulted in a great deal of cash replacing what had otherwise been shares. The best estimate in relation to the settlements in which the wife has an entitlement is that capital contained therein totalled some £5.8m as at the date of trial. There was an overriding power of revocation in respect of some of the trusts but it was not expected that this would be exercised. That apart the wife was entitled to the trust income throughout her life. Indeed, Mr Howard Q.C. on her behalf, was realistic enough to accept, that she would be entitled to the substantial trust income. Currently it amounts to about £150,000 gross per annum, netting down to about £100,000 net. It is clear that these trusts are invested primarily for capital growth, for £100,000 when applied to the underlying capital base shows a return of a mere 2 per cent per annum. My understanding is that some £4.4m of the fund is invested in Blue Chip shares, whilst the remainder is in property situated in or about London.

The family’s lifestyle began to change once the trust monies were available to meet the family’s needs and outgoings. Thus, in 1998 the parties purchased Lower Farm, near Chichester. It cost about £650,000 (plus the usual costs of acquisition). It was funded by a mortgage (then in the region of £265,000) the net proceeds of Mañana (being some £218,000) and the balance of £190,000 from the wife’s accumulated income.

The wife has remained living in Lower Farm with the children when they are with her. She has undertaken work to that property over the years and has continued to do so since these parties separated in 2001. I was told that she had recently repaid about £22,000 worth of mortgage and had spent about £25,000 on upgrading the kitchen.

Since 1995 she has used all of her net income towards the family’s expenditure. Accordingly, she has not been able, or has chosen not, to save any of her income. She was generous to the husband in the sense that she contributed about £60,000 towards the purchase of an aeroplane on his behalf, he being an enthusiastic private pilot. He continues to fly and still wishes to maintain/own the plane.

The District Judge found that the contributions that these parties made to the marriage were equal, both as to “past and future expenditure.” Each of these individuals are excellent parents and I am told that, when these children are not at boarding school they divide their time equally between their parents. The parties are to be congratulated, behaving in an adult manner in relation to the children.

The result of the wife’s family wealth emanating from her family, is that a number of expenses which would normally have been borne from the husband’s income have been provided for, from an F family resource.

The District Judge had to determine the assets in the case and so far as I can ascertain, he adopted the entire presentation made on behalf of the wife. In fact, he had the wife’s asset schedule scanned and it appears (albeit in a disjunctive fashion) in the body of his judgment. That asset presentation shows overall family assets approaching £2.3m. There would have been an extra £40,000 included if the husband had been able to obtain an updated pensions valuation for his NHS pension as at September 2006. In round terms, the District Judge held that the parties assets were about £2.3m both through the husband’s industry and (from 1995 as a result of the wife’s income generated funds.

The wife’s asset Schedule was in dispute. Indeed, the husband made his own presentation, which contained a number of figures which he sought to persuade the District Judge were correct. For example, he did not accept that the costs of sale of the former matrimonial home should be deducted as it was the wife’s case that she wished to retain it. He sought to include a figure for contents based on an insurance value of about £100,000. He sought to include his client’s future needs as a “debt” in the asset schedule. The District Judge did not make any specific findings on those arguments, but his inclusion of the wife’s presentation makes it clear that he gave those arguments short shrift. I consider he was correct so to do.

However, the husband made a number of other points, from which I consider the District Judge should have made specific findings. The first is the value of the husband’s business premises. The valuation document presented to the Learned Judge showed three different bases upon which those premises could be valued, (i) the lowest value being some £205,000 on the basis that the property was marketed for some three months; (ii) the mid-valuation on the basis that it was marketed over an extended period was some six months, being some £230,000 and, (iii) the highest being £250,000 on the basis that the husband were able to sell it with tenants in situ. The differential of some £45,000 may not be seen as significant in many cases, but it was an important percentage of the valuation of those premises. Therefore, to my mind the District Judge should have made a specific finding. In fact, he simply adopted the wife’s presentation, which assumed the greatest value.

In relation to costs, I also consider that the District Judge failed to be fair to both of these parties. By the time of trial the wife had expended some £70,000 in respect of her costs and she had paid most of them. The husband had only paid £30,000. Therefore, there was a differential between the parties of some £40,000 in relation to expenditure incurred. This could have been catered for in a number of different ways. Perhaps the most usual, in what may now be described as old-fashioned cases, is to adopt the Leadbetter principle. I have not always been a fan of that particular case, but in the circumstances of this divorce, it was appropriate to apply it to achieve a balanced approach. The Learned District Judge failed so to do. In taking that position, of course, he mis-stated the overall assets by some £40,000.

Another issue which the Learned Judge should have dealt with in greater detail was the categorisation of the value of the business premises, the good will value of the dentist practice owned by the husband as liquid assets. The husband sought to put them into a different category, for he submitted they were not readily realisable whilst the husband sought to continue his occupation. The District Judge dealt with this in his judgment on the basis that “the submission flew in the face of reality.” I do not accept his assertion. It is clear that the premises, less the mortgage of £120,000 and the good will in the region of £190,000 were not readily realisable as they underpinned the Husband’s ability to continue earning. Therefore, whilst, of course, they could be sold, in reality they remained illiquid whilst he continued to earn an income.

The difference in the two presentations has been set out in a clear fashion by Mr Howard, on behalf of the wife, in what he has referred to as Appendix 2A. It shows clearly the issues that I have outlined and highlighted. I append it to this judgment as appendix 1. It shows the asset base set out by the District Judge as about £2.3m together with the husband’s assertions which reduced it to £2.094m. In round terms the differential being £195,000.

The case, would have been easy if it had just been about assets of £2.3m together with the husband’s net income of £87,000. I doubt that this court would have been troubled about a differential of £195,000, which Mr Howard Q.C. has referred to as “nit-picking points.” However, District Judges are now required to consider a division of the assets using the yardstick of equality as a check, are so they should make specific findings where there is a significant differential between the parties. However, the facts which made this complex was the wife’s entitlements under trusts. I am of the view that where such an unusual aspect is to be determined, the case should be transferred to the High Court at the earliest opportunity. If that had been I have little doubt that a great deal of time could have been saved and that there would have been no necessity for an appeal.

The husband sought an award on the basis that the pensions and the business assets were put in a separate category. He submitted there should be an equal division of what might be described as the liquid assets, but that he should retain more of the illiquid assets. He wanted a lump sum of £650,000. The Learned District Judge did not accept that argument. He considered that the husband’s needs could be met by an equal division of all of the matrimonial assets in the case. By so doing, he gave the wife a 50 per cent share in the husband’s business assets, which totalled some £700,000. The result was that the lump sum which the husband sought was reduced to £350,000. I have little doubt that the Learned District Judge’s mind was, to a degree, swayed by the fact that the wife had indicated that her total “mortgageability” was £411,000, and she wished to retain the former matrimonial home. Given that there was an outstanding mortgage, the Learned District Judge thought that if he awarded a lump sum of £350,000 to the husband then the wife would be enabled to retain that property.

The husband’s case was that the wife would be able to retain the house even if a grater lump sum was ordered because the trustees (who had assets of some £5.8m) would assist. The District Judge did not agree with this formulation. He made a specific finding that on the balance of probabilities he could not be certain that the trustees would act in this way, for they had not made any capital distributions. He was referred to the case of Thomas v. Thomas, from which he quoted in short form.

The question therefore, that I have to consider, is whether the Learned District Judge was correct in principle when he came to that determination. The reality is that he took no proper account of the wife’s income of £100,000 net, which she will continue to receive until she dies. A figure was placed before him that, on an actuarial basis, this income stream had a capital value of some £2.7m. I suspect that this actuarial calculation is uncontroversial, albeit that it is theoretically, because the wife will never seek to sell her income stream for that amount of money. Nevertheless, I am clear that in making the order that he did, the District Judge omitted any proper consideration of the wife’s income stream.

The findings that the District Judge made that are relevant include the following: (1) that neither of these parties required to live in the former matrimonial home. So far as the husband was concerned, that he could re-house himself for £500,000. That was based, as I understand it, on the evidence that the property next door to the parties’ first matrimonial home, Mañana, was on the market for sale at about £500,000. It seems to me, having been referred to the transcript of the evidence, that this was a flimsy basis upon which the District Judge could make such a finding. That he indicated that he had ten years of experience of property prices in the area. The husband’s case, was that he wanted to buy a property costing £775,000 within the city walls of Chichester. The District Judge found this was too high, for properties could be bought outside that particular location for £500,000 odd. I do not think it is appropriate for me to go behind any of that part of his finding.

I note in passing that Lord Nicholls in Miller v. MacFarlane stated that the matrimonial home stands in a special category. In normal circumstances it is an asset which is to be jointly shared. The net value of this family’s home was, as at the date of trial, some £1.2m. This analysis would presume that the parties could be adequately re-housed for a sum in the region of £600,000 each.

The District Judge was also satisfied that the husband’s budget, was a “fantastic document” because the figures were so high. It seems that the husband had introduced it at a late stage in the litigation. Apparently it included expenditure such as £20,000 per annum on his plane and led to a great deal of cross-examination on the basis that, the husband had been extravagant in the period since the parties separated in 2001.

The District Judge made the following points in relation to the wife and her trust and I quote from paragraph 12 of his judgment:

“It may be asked how the wife can be expected to raise the sum for which the husband asks since she has no cash fund anywhere near this sum. She has asked her bank what it would be willing to lend her in excess of the existing mortgage and the answer was £411,000. The husband counters this by saying that the wife is a tenant for life and the settlements, which have a value of £5.8m and that the trustees have power in their absolute discretion to advance capital to any beneficiary and, that it is from this source that the necessary funds might come. In support of this my attention was drawn to the Court of Appeal decision in Thomas v Thomas, where it was suggested that in circumstances such as this the trustees would probably help, particularly if their was a little judicious encouragement from the court. This observation cannot, in my judgment, be considered a proposition of law so that a court trying a case such as this must, or should assume that the trustees will come to the rescue of a party who is in need of funds to satisfy an ancillary relief order. I question whether that is in fact a right interpretation of that decision.

It was also pointed out by the wife’s counsel that from a document with the papers they have a stated policy of not making capital advances and more importantly, in the eleven years since the settlements became cash rich there is no instance of their having done so. At best it can be said that on one occasion they bought a house for the mother-in-law of one of the wife’s brothers to live in, but it was all in their own names. On the face of it this would appear to be an unauthorised investment and in any event they have apparently now required the lady to leave and sold the house. On another occasion they apparently lent to one or other of the grandchildren some money to buy a car. Neither of these instances is an example of making it an advanced capital. Although not mentioned at the hearing, it occurs to me that if this argument was to be used, an application could have been made for a direction that the wife enquires of the trustees whether they would, if asked, assist the wife.”

Where a husband can only raise further capital, or additional income, as the result of a decision made at the discretion of trustees, the court should not put improper pressure on the trustees to exercise that discretion for the benefit of the wife.

The court should not, however, be 'misled by appearances'; it should 'look at the reality of the situation'.

If on the balance of probability the evidence shows that, if trustees exercised their discretion to release more capital or income to a husband, the interests of the trust or of other beneficiaries would not be appreciably damaged, the court can assume that a genuine request for the exercise of such discretion would probably be met by a favourable response. In that situation if the court decides that it would be reasonable for a husband to seek to persuade trustees to release more capital or income to him to enable him to make proper financial provision for his children and his former wife, the court would not in so deciding be putting improper pressure on the trustees.’”

I note in this particular case, the trustees would not be asked to make funds available for this husband. They would only be asked to make funds available to enable the wife to remain in a home that she loves, but which the District Judge stated was not essential. That is a relevant factor for the court would not be asking the trustees or be putting improper pressure upon them, it would simply be giving the trustees an opportunity to react to a proper request to assist their beneficiary. Of course, this is an appeal and so this court does not have a free rein to exercise its own discretion. It is bound by the case of Cordle v. Cordle [2002] 1 FLR 207, where, it was held that it was necessary to reform the previous practice that had been established whereby an appeal from a District Judge was dealt with by the Judge exercising his own discretion admitting further evidence and considering the case de novo. That practice did not fit with the provisions of Section 55, Access to Justice Act 1999, which provides that permission to appeal should only be given for a specific reason. Accordingly, any decision from a District Judge in ancillary relief proceedings should only be allowed by the judge if it can be demonstrated that there had been some procedural irregularity in conducting the necessary balancing exercise, so that the District Judge has taken into account matters which were irrelevant or has ignored matters which were relevant or has otherwise arrived at a conclusion which was plainly wrong. Equally, a judge hearing such an appeal should not admit fresh evidence unless there was a need so to do on the application of the more liberal rules for the admission of fresh evidence, which was recognised as necessary in family proceedings.

Accordingly, the husband has to achieve a high threshold in the sense that, I have to be convinced that this District Judge took into account or failed to take into account matters which he should have done or that he failed to deal with a matter of principle in the proper manner and therefore was, plainly wrong. Moreover, the House of Lords have indicated in the case of Piglowska that it is not for a court such as this simply to tinker with decisions because they consider that they might have awarded a bit extra here or there. A court can only deal with an appeal on the basis of principle. That is why as I have already outlined that the small points which Mr Howard Q.C. described as “nit-picking,” would not, have caused me to alter the decision of the District Judge in the exercise of his discretion. However, I consider that this District Judge was plainly wrong on a matter of principle relating to the wife’s trust assets affected his division of the illiquid assets that had been built up by the parties during the course of the marriage, particularly the husband’s pensions, the good will relating to his practice and the business premises from which he ran it. The District Judge was wrong to divide those assets on a 50/50 basis when the wife had the income stream from trust assets worth £5.8m.

The House of Lords in the recent case of Miller v. McFarlane made it clear that in applying s.25 of the Matrimonial Causes Act the court must strive to achieve a fair outcome between the parties in the particular circumstances of their marriage. The facts of Miller v. McFarlane are very different from this case and there has been some difficulty in reconciling the separate decisions of their Lordships, particularly the decision of Lord Nicholls and Baroness Hale. However, I note that Lord Nicholls stated that when exercising his discretion a judge must treat all property in the same way. Statute requires the court to have regard to all of the circumstances of the case. One of the circumstances is that there is a real difference between the source of those funds, between property acquired during the marriage otherwise than by inheritance or gift, sometimes called the “marital acquest” and other property. The former is the financial produce of the parties common endeavour, the latter is not. He said:

“The parties matrimonial home, even if it was brought into the marriage at the outset by one of the parties usually has a central place in the marriage so it should normally be treated as matrimonial property for this purpose. As already noted, in principle the entitlement of each party to a share in the matrimonial property is the same, however long or short the marriage may have been.”

The Learned Law Lord therefore makes it clear that the position in relation to matrimonial and non-matrimonial property needs to be considered in any given case. He continues at paragraph 25 of his judgment:

“With longer marriages the position is not so straightforward. Non-matrimonial property represents a contribution made to the marriage by one of the parties. Sometimes, as the years pass, the weight fairly to be attributed to this contribution will diminish, sometimes it will not. After many years of marriage the continuing weight to be attributed to modest savings introduced by one party at the outset of the marriage may well be different from the weight attributable to a valuable heirloom intended to be retained in specie. Some of the matters to be taken into account in this regard were mentioned in the above citation from the White  case. To this non-exhaustive list should be added, as a relevant matter, the way the parties organised their financial affairs.”

Baroness Hale dealt with the matter somewhat differently at paragraph 144 of her judgment where she says:

“Thus far, in common with my noble and learned friend, Lord Nicholls of Birkenhead, I have identified three principles which might guide the court in making an award: need (generously interpreted), compensation, and sharing. I agree that there cannot be a hard and fast rule about whether one starts with equal sharing and departs if need or compensation supply a reason to do so or whether one starts with need and compensation and shares the balance. Much will depend upon how far future income is to be shared as well as current assets. In general, it can be assumed that the marital partnership does not stay alive for the purpose of sharing future resources unless this is justified by need or compensation. The ultimate objective is to give each party an equal start on the road to independent living.”

So whilst these two passages are not entirely the same, they give a clear indication of the manner in which the courts should approach this type of case, subject to all of the specific factors under s.25 of the Matrimonial Causes Act.

In this case the ages of the parties are about the same. The marriage lasted a long time. The asset base is sufficient to cater for the parties’ needs if one is considering the matrimonial property. The contributions that the parties made were found to be equal. The health of the parties is not such that I would take it into account, although I note that this husband has suffered from depression in the past. The medical evidence was to the effect that there was a 50 per cent chance that he might suffer from a further relapse. But the Learned District Judge did not find on the balance of probabilities that it was likely that he would have to retire early, and I could not begin to derogate from that finding.

In essence there is little to choose between these parties in terms of their need to a matrimonial home as they each have the children with them for equal periods of time. The real factor which makes it unfair to divide the illiquid assets on a 50/50, basis is the fact that the wife has got this long-term income stream arising from the F family trusts. I accept that these monies inter vivos gifts. I accept that they have a dynastic quality. However, the husband is not seeking any share in them. He is simply hoping that this court will enable him to retain his £750,000 illiquid asset being as business and pension assets without them being invaded.

It has been accepted by Mr Howard Q.C. on behalf of the wife that, if I am satisfied that the Learned District Judge was plainly wrong and therefore, the Cordle hurdle has been crossed, that I am entitled to look at matters on an up-to-date basis in order to try and achieve a fair outcome for these parties. With the possibility in mind Coleridge J gave permission earlier this year for the former matrimonial home to be revalued, the previous valuation now being some 14 months old. The revaluation shows that the property has increased by about ten per cent and is worth now £1.65m. The percentage increase is also to be applied to the husband’s business premises.

At the date of the hearing the husband had failed to produce up-to-date documentation in relation to his pension. That information has now been made available. I also have updated figures so far as joint policies, bank accounts and the like are concerned.

I have prepared a new asset schedule on the basis of this updated information. It is appended to this judgment marked “2”. For the avoidance of doubt I make the following points. I have included the notional costs of sale of Lower Farm, as it seems to me that that is appropriate. I have included the value of the aeroplane, a Piper Saratoga, at £120,000, because it seems to me that that was the figure that was given at the date of the trial and although there has been subsequent updated valuation which indicates that it is worth somewhat less, no permission was sought to adduce that evidence. I have not included any costs of sale in relation to that plane, for it seems to me that the evidence before the District Judge was to the effect that the husband would try and achieve a private sale so as to avoid the costs of sale.

So far as other items in dispute are concerned, I have added the figure of £6,300 in relation to a car which the husband purchased for his current partner. I have not included a figure for the wife’s car, although I accept it could have been included on a like-for-like basis, but it does not seem to me that the value of her old vehicle makes any difference to the outcome of this case. I have taken a broader view because (inaudible) is de minimis view in relation to assets such as this. Indeed, my own view is that contents and cars should normally be omitted from asset schedules and should be dealt with in specie. I have included the amount for the husband’s tax for £2,067 and the prospective current payment that he will have to make in relation to his tax bill in 2008. The latter, is likely to be covered by some monies that he has put into a tax reserve account. I have equally included a figure of £20,000, which the wife said in evidence was the amount that she expected in relation to her tax. I have dealt with the legal costs (not by a Leadbetter add back) but simply by deducting the amount of the husband’s excessive outstanding costs over those of the wife. Therefore, dealing with those on a fair basis - like for like.

The asset Schedule speaks for itself and incorporates the new figures.

The submission was made by Mr Cohen Q.C. on behalf of the husband, that I should take account of the undoubted uplift in the value of the wife’s trusts since the hearing before the District Judge. He gave a number of calculations using the FTSE and (inaudible) index. He told me that would take the value of her trusts to far in excess of £6m. I do not think it is proper in the context of this case that I try to estimate an updated figure in relation to her trusts. It is clear that they are so much greater than the husband’s long-term illiquid assets and so the precise value makes little difference to the outcome of this case. The current total of the husband’s illiquid assets (being his pension and business assets) is now £770,000 odd. When that is compared to the wife’s trust of course it is not a significant amount.

The husband’s award on the basis that there was a division of the liquid assets on a 50/50 basis would mean that he would be entitled to a 50 per cent share of total assets worth £1,617,115. Given that the wife retains the former matrimonial home that would mean he would be entitled to a lump sum (given that he was to retain a joint policy and the plane) of some £625,930 (of which £350,000 has already been paid on account). This would mean an additional lump sum payable to him in the round of £276,000. An award at this level would represent an overall percentage of the parties’ matrimonial assets of 65 per cent, leaving the wife with 35 per cent, plus her trust assets.

I have to consider whether that in itself is a fair determination of this case overall. Many arguments have been advanced about the expenditure which the wife has made on behalf of the family from 1995 onwards and since the separation of these parties. Many arguments have been advanced in relation to the husband’s alleged extravagance from 2001 to 2006. Those have been countered on the basis that he has had to live in rented accommodation and the like. I have little doubt that to some extent the husband has found it difficult to adjust from the lifestyle to which he became accustomed in the latter part of the marriage. He, apparently, has expended some £69,000 of capital as to which £14,000 odd is reflected in policies and £30,000 is reflected in legal costs that were paid by him. That means that some £25,000 odd may have been spent on matters that were not strictly required. It may be it was spent on flying. Clearly he enjoys his plane and that is an expensive hobby. (inaudible) he (inaudible) wished to sell the plane at one point and was dissuaded from so doing because the wife wished the proceeds of sale to be retained pending the determination of this case.

Looking at the matter in the round and having a full consideration to those issues, I have come to the conclusion that the lump sum of £276,000 requires an adjustment to take into account of positive extravagance. Accordingly, I consider the further lump sum should be £250,000.