Hussein v Ahmad & Ors

I have been hearing a claim for financial relief under Part III of the Matrimonial and Family Proceedings Act (“MFPA”) 1984 brought by Intilaq Ali Abdul Hussein (“the Wife”) against her ex-husband, Fouid Hamadameen Ahmad (“the Husband”). The Wife has been represented by Mr Howard Shaw QC and the Husband by Miss Sarah Dines. They are not the only parties to the litigation. The Second and Third Respondents are companies by the name of Kubik Investments Limited and Kubik Developments Limited. They have not been represented, nor has any such representation been necessary. The Fourth and Fifth Respondents are two of the Husband’s brothers, Mawlan Hamadameen Hamad (“Mawlan”) and Rokan Hamadameen Hamad (“Rokan”), who, formally, were joined as parties to the proceedings by Order of District Judge Berry dated 1^st August 2013, with consequential directions as to service and the filing by them of pleadings and witness statements. I say “formally” because the decision to direct joinder had in fact been made by District Judge Hess on 26 June 2013; but there was a procedural muddle and the drawing up of that order was delayed. Neither Mawlan nor Rokan has filed any pleading or evidence; nor have they been represented or given oral evidence. Both have produced very short statements which are exhibited to a principal Statement filed by the Husband one week before trial. Later in this judgment I shall put the slender participation of Mawlan and Rokan in the proceedings in its appropriate context and also refer to applications (which I rejected) by the Husband for an adjournment on miscellaneous grounds, one of which was Mawlan’s and Rokan’s absence.

The above notwithstanding, it should be noted that when, for abbreviation, I use the term “the parties” in this judgment, I mean (only) the Wife and the Husband. There are four further preliminary points. First, for the most part and for ease of reference I shall place direct quotations (placed within inverted commas) in italic type. Secondly, it is of the nature of translation into English of either Kurdish or Arabic text that proper names become differently spelt by different persons in different contexts. Thus, for example, the name Sairawa (which relates to some relevant agricultural land) is also spelt Sayrawa and in other ways in the documentation. I have adopted “Sairawa”. There are countless other such instances (such as “Fouid” and “Fouad”; and “Mawlan” and “Molan”). Thirdly, the “$” sign (or the word “dollars”) refers in all instances to United States dollars. Finally, anyone coming to the facts of this case for the first time is invited to cast an eye at paragraph 232 below before continuing with the reading of this judgment.

The parties are of Iraqi origin, the Wife coming from Baghdad and the Husband from Kurdistan. They were born in Iraq on, respectively, 13^th March 1960 and 5^th September 1960: accordingly, they are both aged 53. They were married in Baghdad on 2^nd August 1982.

There are three children of the marriage:-

Both Mazin and Lara have given written and, before me, oral evidence in support of their mother and in contradiction of key aspects of the evidential presentation made by their father. My assessment of their evidence will be of high significance, because, if fundamentally it is true, it directly impugns the essence of the Husband’s case. They insist that they are telling the truth, and that their only motivation in testifying is their determination to ensure that the Court is not misled into accepting the Husband’s version of certain events and forming conclusions which would lead to a financial relief order unfair to their mother. The Husband, in stark contrast, does not stop short of accusing Mazin in particular, but also Lara, of gross deception and of conspiring with the Wife to deceive the Court.

The Wife is resident in England, where she has lived since 1996, when the entire family started to live here. She may or may not be domiciled here: I make no finding in that respect. What is certain is that she has no current intention of returning to Iraq. The Husband, in contrast, has returned to Iraq in circumstances which I shall describe. His location in the long-term future is not certain. He flirted evidentially with the prospect of moving at some stage to India, or returning to Sweden (see paragraph 8 below); but the notion was advanced with hesitation. I am sure that for the foreseeable future, and probably indefinitely, he will continue to live in Iraq. He did say to me, and I accept, that he will never come back to live in England. It is noteworthy that in a Statement dated 12^th December 2012 the Husband stated in terms that he was habitually resident and domiciled in Iraq.

The Husband hails from a very large family, the vast majority of whom live in Iraq. At the apex are his parents, both alive, aged 79 and living in Erbil, which is the Husband’s family’s home location and the fourth largest city in Iraq. He has ten siblings (he is the eldest of the eleven in all), and mentioned to me that Mazin, Alan and Lara have a total (all or almost of them presumably in Iraq) of 82 cousins. The siblings, five brothers and five sisters, are as follows:-

The Husband and the Wife met in Romania at the age of 20, when both were under-graduate students at a university in Bucharest, he studying architecture and she medicine. They graduated several years later and would probably have returned to Iraq but for the fact of the chemical weapon attack at Halabja, which prompted them successfully to apply to Sweden for political asylum. Together with Mazin, who had been born in Romania, they moved to Gothenburg, and lived there until 1996. The Husband explains that business eventually deteriorated, and in that year the family, which had been completed with the birth in Sweden of Alan and Lara, moved to England.

For more than a decade thereafter all was well. The Husband eventually moved into the field of property development, for which his degree in architecture was good grounding, and he thrived professionally both before and after, in about 2004, he entered into an informal business partnership with a friend and colleague named Jalal Al Jawer (“Jalal”).

Now, however, 17 years after the family arrived in England it is torn asunder to an extent which far exceeds normal perameters, and it falls to the Court to decide the ultimate financial consequences of the breakdown of the marriage. To that end I shall have to determine a myriad of factual issues, of which the principal is without question the nature, extent and location of the financial resources, in circumstances where the Wife alleges grave non-disclosure by the Husband. The single most prominent question for my decision is whether the Husband has any (and, to the extent possible, what) reckonable capital assets and income in Iraq. Reduced to a few words the issue is almost as stark as could be imagined: the Wife alleges capital assets in Iraq worth several million dollars and income which annualised is at a level of several hundred thousand dollars per annum, whereas the Husband says that, to all intents and purposes, there are no Iraqi financial resources, whether by way of capital or income. His attention is thus trained upon the UK assets, which according to him should be shared equally between the parties because, he says, there is nothing else to be apportioned between them. As to capital assets, the Husband concedes equality of apportionment in principle.

When the family came to England they lived initially in rented property in Finchley; but the parties soon purchased their own home and thereafter apparently lived in a succession of different properties until moving to their final matrimonial home, Coombe End Cottage, Warren Road, Kingston upon Thames, in 2006. The Husband, with his degree in architecture and an evolving superficial knowledge of some aspects of constructional engineering, moved into the area of property development and must have completed at least several successful projects to enable him to provide the high standard of living which the family enjoyed. Some of those projects in and after 2004 were undertaken with Jalal, in conjunction with whom he set up a number of inter-related companies all with the primary name Kubik, the essential business of which was the holding and development of real property.

The end product of the Husband’s property-related activities in England consists of six properties (all of them except the matrimonial home investment properties) which, in the chronological sequence of their acquisition, are as follows:-

As one would expect, the acquisition of such a portfolio of (largely investment) properties required finance. The Husband entered into several re-mortgages over the years with the necessary co-operation, to the extent that Coombe End Cottage was in the sole name of the Wife. That said, I accept the evidence of the Wife that as a general proposition she harkened to the bidding of the Husband where financial matters were concerned and was accustomed to signing documents at the Husband’s behest without reading them in detail or probably sometimes at all. That is not a criticism of the Husband: it was a natural regime in the happier days of the marriage, when there was mutual trust.

I know of only two specific mortgages, to the EFG Bank in 2010 and to the Standard Chartered Bank (“SCB”) in 2012. The re-mortgage to SCB might be described as a story all of its own. It is the subject of stark evidential conflict between the parties and is of significance in the history of the marriage breakdown, in the context of the parties’ credibility and therefore in the decision-making exercise. My analysis of the history in respect of the SCB re-mortgage is set out in paragraphs 23ff. below.

The timing, substance and (which he denies) success rate of the Husband’s commitment to business in Iraq are all in issue. As to timing, the broad position, at any rate, is reasonably clear. Saddam Hussein having fallen from power in 2003, the Husband himself describes how he perceived the future prospect of commercial profit in Iraq, given, amongst many other things, the massive rebuilding programme which resulted from the devastation of war. The time came when property prices and business generally in Iraq, including Kurdistan, were booming. The evidence suggests that that is still so. According to the Wife, the Husband (quite apart from visits simply to see his family) started travelling to and from Iraq in a year variously stated but not later than 2006 and, as per her petition for divorce, from 2008/9 was only returning to England once every 2 - 3 months for short periods of time. In her narrative Statement she says that he was spending virtually all his time in Iraq for 4½ years before their separation. Certainly, as the decade progressed the time spent by the Husband in Iraq greatly increased. He himself has conceded that in terms of business Iraq has indeed been booming in the latter part of, and from the turn of the 2001-2010 decade, not least because of the discovery of a bountiful supply of oil; and that is what he told the various members of the family. Great opportunity has presented: the core dispute is the extent to which the Husband has succeeded (or, as he maintains, failed) in exploiting it.

The Wife says that it was intended that the Husband would develop business ventures in Iraq which hopefully would make a lot of money to be enjoyed by the family in the UK. It is on the matter of long-term future location that the parties fundamentally differed. The likelihood is that the Husband had in contrast with the Wife formed a strong aspiration to the return of the family, or at least of himself and the Wife, to Iraq permanently. Equally, although contrary to her contention I believe that the Wife did on occasion wilt and give the Husband some hope that she at least might be willing to return to Iraq, I am confident that at no stage was her heart in the prospect of abandoning England: on the contrary, she always wanted to remain in this country.

On 16^th November 2009, in Iraq, the Husband instigated the incorporation of Pristine Consultancy Company Limited as a vehicle for his future business ventures (as to the shareholding in Pristine, see paragraph 189 below). Previously, Mazin said but the Husband denies, he had been acting as a sole trader, often as a middle-man, sometimes having a share in given ventures, sometimes not. By now he was casting not only his eye but an ever-increasing proportion of his professional attention and effort in the direction of business prospects in Iraq rather than in England. That much is not in issue: what are strongly in dispute are (i) as already indicated, the extent to which such prospects became crystallised into actual business transacted with a real clientele and (ii) the real property interests which the Husband holds in Iraq and/or has held during, approximately, the last ten years. One is talking of numerous properties in Iraq which in the proceedings have come under detailed, or in some cases lesser, scrutiny, but in none of which, with negligible exception, does the Husband admit to holding, now or ever, any beneficial interest. He has had eventually to admit that some properties were held in his name, but says that they have now been transferred into the name of Mawlan, such transfers merely reflecting what has always been their true beneficial ownership. As to current tenure and/or ownership, he denies any whatsoever.

In the round the history as to the Iraqi properties is complex and diffuse, but it has to be addressed by me in considerable detail. I believe that the optimum method of recounting it will be:

By the Autumn of 2011 cracks in the edifice of what was then a marriage of 29 years’ duration were beginning to appear. I have limited understanding of the dynamics of the parties’ relationship at that time, but I perceive that the reasons included:-

A source of marital strain was the Husband’s intimation, and then insistence, that a re-mortgage of Coombe End, Knightsbridge Court and St Mary’s was required. The Wife, putting her case at its highest, would have it that money was never an issue in the course of the marriage. However. I think that that is an over-simplification, certainly when one comes to examine the events of 2011, as the Wife knows very well. It is incontrovertible that there was a shortfall of several thousand pounds per month as between the EFG mortgage repayments and the rental income available from Knightsbridge Court and St Mary’s. I accept from the Husband the broad picture that he was worried about the financial situation in England and about the fact that the terms of the EFG mortgage were distinctly unfavourable. Lara and Mazin gave evidence conceding, willingly, the Husband’s concern and, in the case of Mazin, acknowledging that business in England was slow. He referred to a conversation which the Husband apparently had with Alan in c. August 2011 when the Husband had expressed concern and announced that vacation of Coombe End was required, so as to enable its letting and thus produce surplus income with which to finance borrowing. It is clear that in the Autumn of 2011 the Husband did place the house for sale; but to what extent that was simply to test the market (I am sure that it would have been against the Wife’s wishes) is unclear.

The Wife meanwhile recounts an increasing distance between herself and the Husband starting in 2011, with arguments and threats by him that he would reject her financially. When the Husband initiated the hotel project in Iraq referred to later in this judgment, she realised, she says, that he did not want to return to England. She worried about the potential destination of any free cash balance from the funds generated by re-mortgage and specifically foresaw danger that those monies, or part of them, might be exported by the Husband to Iraq.

The Wife’s insistence that money was never an object resulted in lengthy cross-examination of her designed to prove the contrary. Not only was it pointed out, correctly, that the family operated within a regime of consistently high credit card indebtedness, but there was detailed questioning about the existence or otherwise of small inter-family loans, whether such loans are normal in the parties’ ethnic culture, what exactly the financial arrangements have been since the breakdown of the marriage between the Wife and Mazin and so on. Looking at the bigger picture and in the context of the central issue in the case, I regarded much of this evidence as peripheral, particularly given the relative insignificance of the figures under scrutiny.

It was the Husband’s insistence upon the re-mortgage of Coombe End, Knightsbridge Court and St. Mary’s that was the catalyst for the Wife’s commencement of divorce proceedings on 10^th November 2011 (paragraph 26 below). This is the optimum stage at which to tell the story of that re-mortgage, one of several areas of the case where there is no escaping the detail:-

01.2011 Mazin’s email read: “.... I have spoken to my father who me[e]t your contact Mr Luay along with the accountants. I believe he was satisfied and said he would send you a letter”. The natural conclusion is that Mazin would never have written in those terms unless he had been so informed by the Husband, for there was nothing to be gained by misrepresenting the position and the fact of any misrepresentation would surely have become apparent to SCB upon receipt of the inevitable report from Luay.

The picture which the Husband tried to portray in the proceedings is at fundamental odds with the documentary evidence to which I have referred.

The remaining, and crucial, question is whether the Husband is telling the truth when he says that his statement of Iraqi financial resources was “inflated” and indeed a total mirage. I address that issue later in this judgment.

By November 2011 the Wife had taken legal advice. She felt the need to protect her financial position. On 10^th November she filed a Petition for divorce, asserting irretrievable breakdown of the marriage and pleading as one example of the Husband’s allegedly unreasonable behaviour that he no longer wished to fund outgoings for the matrimonial home and had proposed that she and the children should leave the property and could move into rented accommodation. She further alleged that he had threatened that she would be left with nothing. Simultaneously, she produced a Statement in support of a without notice application for a freezing injunction, which was granted by District Judge Hess. In that Statement she set out the family’s UK properties as described above. She stated that the Husband had come to spend the substantial majority of his time in Iraq, was wanting to arrange the re-mortgage and had issued threats as above. She also stated that she knew that he had exported money to Iraq. She complained that he had ceased paying her any allowance in August 2011. Later, in oral evidence, she explained that she had never been paid a fixed and constant sum at precise intervals; but she received regular ad hoc subsidies of as she put it £5,000 here and £7,000 there. Such payments had now been stopped.

As to the Husband’s assets in Iraq, she stated that:

Within 3 weeks the parties had agreed upon what would prove an uneasy reconciliation. The Husband was indignant at what I am sure he viewed as the temerity of the Wife in petitioning for divorce at all, let alone obtaining what he always sought to insist was an unnecessary freezing injunction. Much later, in June 2012, in some key conversations with the Wife on SKYPE, he mentioned with obvious feeling that her action in commencing proceedings had “woken him up” (as to which, more at paragraph 57 below).

Be that as it may, it is not in dispute that at about the end of November 2011 there was a family meeting attended by the parties and all their children, which did not produce finalised consensus and must have been followed by further and probably tortuous discussions as time passed. That said, constructive discussion as to the way forward consonant with the Wife’s point of view happened in the course of the meeting, because she at that stage stepped back from further litigation and expressed willingness to attempt reconciliation.

She, Mazin and Lara all gave evidence, which I found convincing, to the effect that a deal was in due course struck between the parties which underpinned the reconciliation and had as its fundamental terms:-

The re-mortgage having been agreed on 4^th January 2012, the consequent release of monies did not happen until a completion day on 30^th March. The new umbrella mortgage covering the three properties already identified was in the sum of £6,700,000. The solicitors dealing with the distribution of funds were Portners Jask. They produced what was termed a Completion Statement, which demonstrates that after the payment by them of various actual and possibly purported liabilities, and after the retention by SCB of a collateral fund of c.£340,000 by way of quasi-security for payment of mortgage interest, the residual balance for distribution to the parties was c.£370,390. (The Wife says that she had understood that the figure would be c. £680.000.) Of this sum £91,000 was distributed to the Wife partly as a fund for living expenses over an extended future period. There was attempted criticism by the Husband, reflected in lengthy cross-examination of the Wife, about its actual deployment, and alleged dissipation, which in terms of establishing a Norris add-back situation did not get off the ground.

As to the liabilities discharged, there is keenly contested dispute as to some of them, and a related issue whether the Wife was and remains fully aware of their existence and validity. The Completion Statement had her signature appended as well as that of the Husband; but she suggests that her signature was proffered in ignorance of the detail and against a history of customary willingness on her part blindly to sign documentation at the behest of the Husband, whom she trusted.

In April 2012 the parties went to the United States of America on holiday. It was not a success. I heard a vivid description of how Lara telephoned her mother in America to enquire about marital progress, only to be told that things were not proceeding at all as she, Lara, would very much have wanted. On returning to England the Husband retreated immediately to Iraq. He and the Wife saw little of each other thereafter in England. They clashed in Iraq later in the summer of 2012, as I shall relate. They also encountered one another in Syria in June 2012. The Wife went to Damascus via Lebanon with Mazin and Lara, where they visited the home of Sarah, to whom Mazin was betrothed, specifically to discuss and negotiate the matter of dowry. The Husband paid a shorter visit to Syria a few days after they had arrived for the same specific purpose: I refer to it further at paragraph 179(ii) below.

Whatever uneasiness was felt by the Wife as to the future prospects for the marriage, it was vastly increased when on 26th June 2012, she received a telephone call from Iraq made by the wife of the Husband’s brother Gaylan, who told her that the Husband was imminently to remarry. What she did not say, and the Wife remained ignorant of the fact until July 2012, was that in addition the Husband had pronounced a Talaq divorce on 18th June 2012.

Soon afterwards there was a series of conversations between the Wife and the Husband, she in England he in Iraq, which were conducted on SKYPE and which the Wife recorded. She told me that she informed the Husband of the fact of recording, but I very much doubt that she did, having regard to certain admissions made by the Husband. I refer to this SKYPE material elsewhere in this judgment from time to time.

The Wife’s reaction to news of the Husband’s remarriage was one not simply of shock but of fury. Her apprehension as to her financial future was also, no doubt, rekindled in circumstances where the information she had received was consistent only with the Husband’s intention to devote himself unreservedly to residence in Iraq rather than honour his promise to commit to the marriage and return to settled family life in England. She applied for a further freezing injunction (her petition for divorce had not been dismissed and lay stagnant on the court file). The application, in much the same terms as previously, was dated 2^nd July 2012 and supported by a Statement. As, specifically, to Iraqi resources, whilst saying in terms that she did not know in detail what assets there were in Iraq, the Wife asserted the ownership by the Husband of:

“The hotel: to be worth $6m on completion, but currently $1-2,000,000.

First property (the Italian Village) $400,000- $500,000.

Second property $ 400,000 - $500,000.

Third property $ 200,000.

Land $1,000,000.

Cash/other investments Quantity unknown.”

She also stated that the Husband had at this time been issuing various threats to the effect e.g. that she would be left with nothing and all resources would go on legal fees. A freezing injunction was granted by District Judge Bowman on 2^nd July, with a return date of 27^th July 2012.

The Husband produced his first Statement in the proceedings on 23^rd July, two days before the return date. It was (but only in one sense) a significantly revealing document. As to financial resources in Iraq, the nub of his presentation was to this effect:

On 25^th July 2012 District Judge Reid made a holding order: a further return date was directed after 30^th July with a time estimate of 1 day. Provision was also made for the withdrawal of certain sums by the Husband, inter alia towards legal costs.

The Wife came back with a Statement in Reply dated 8^th August. She had up to that point concealed some of the cards in her hand; but she now played them. As to Iraqi assets, she stated that she was aware that the Husband had purchased the land for the hotel and had in fact begun building it through Pristine. The Husband had himself given her this information; and she had seen the land. She referred for the first time to the SKYPE material, then still to be actually transcribed, and recorded that the Husband had admitted in conversation that he had already started building the hotel. She said that she was unsure of his other business ventures in Iraq, but believed that he had substantial monies there. As to the Italian Village property, she exhibited a copy of a receipt for the purchase of the property, which Mazin had given to her. She said that she had seen various properties which the Husband had shown her in Iraq and knew what he had himself told her. She said too that the Husband had told her (this was on SKYPE) that he had transferred all properties out of his name in Iraq, but could recover them. She said that he had to her knowledge a large number of development projects in Iraq on the go, in connection with which she had been to his offices, where he had several staff working for him. She gave further evidence of threats made by the Husband including his assurance that she would get nothing out of Iraq. As to remarriage, she said that the Husband had recently told her that he had taken a second wife, and also that he wanted her to be his “main” wife.

Mazin too entered the evidential arena on 8^th August 2012. He averred that he was aware from what the Husband had told him that he had purchased land in Iraq with a view to construction of a hotel, that the Husband had substantial assets in Iraq and that he earned substantial money there. He produced inter alia, having retrieved the documents from records in his possession:-

As to remarriage, Mazin recounted that his father had told him that he had remarried and that this was his Islamic right.

The ultimate return date re the second freezing injunction was on 10^th August 2012. Deputy District Judge Willbourne accepted suitable undertakings from the Husband on the strength of which the interim freezing injunction was discharged. She directed filing of the Forms E, with costs reserved.

It needs to be understood that battle was now joined on two fronts. The Wife was utterly incensed both by what she had learnt of the Husband’s remarriage (whether actual or intended) and by the Husband’s pronouncement of Talaq divorce, of neither of which she had been forewarned. She not only felt scorned but was adamant that, without her express consent (which it is not suggested had been forthcoming) the taking of a second wife by the Husband was contrary to Iraqi law. She had made no bones about telling the Husband in the conversations recorded on SKYPE that she would have him put in prison for his transgression. She was true to her word. Between July and October various police procedures and court proceedings happened in Iraq. The Husband started them, and there was also joint process issued by the Husband and by his brother, Gaylan. But the principal proceedings were initiated by the Wife. It is a complicated story. I return to it in a separate compartment of this judgment at paragraph 70.

The legal proceedings in Iraq were not the only event there of significance. Between July and September, as narrated elsewhere in this judgment, there were, one now knows, at least four property transfers executed by the Husband of properties thitherto held in his name into the tenure of his brother, Mawlan.

Back in England, and after the making of a further Order backed by a penal notice on 8^th October, the Husband produced his Form E late, on 11^th October 2012. By this stage he can have been under no illusion but that, whether or not the Wife had in some respects got it wrong out of vagueness or lack of sufficient knowledge, she was advancing a core case to the effect that he was enjoying commercial success in Iraq, may well have exported a proportion of capital to that country, held various capital assets there and was in receipt of a very substantial income.

What the Husband said about the English assets in his Form E is covered below under the heading Financial Resources. As to Iraqi resources, he said little, thus implying that there was little to say. It is, of course, trite to observe that, if at this or any other stage it were to became apparent that any evidence previously given by him (at this stage that would have meant his July 2012 Statement) was less than full and accurate, it would be incumbent upon him as a matter of fundamental duty to remedy the defect(s). The Husband in the Form E simply said that he resided at 211, Gulan Street, of which he was the tenant. He made a bald statement that he no longer held the land referred to in his Statement dated 23^rd July. As to the Italian Village property and the hotel, he was silent.

He did not hold back, in reaction to the Wife’s August evidence, from alleging that the Assets and Liabilities Schedule exhibited to Mazin’s Statement was created not by him, but by Mazin. He said that he had included assets on the Schedule sent to SCB that he had not owned and did not own because he hoped that in doing so the Bank would look more favourably upon him.

As to Pristine, he portrayed a very negative picture, confirming without explanation that he owned only 25% of the shares and Rokan 75% and repeating his remuneration to be $3,000 per month, in which connection he exhibited a document dated 16^th September 2012 purporting to be an “Administrative Order” signed by Rokan in his capacity as Director of Pristine and stating “… we have decided to appoint Mr Fouad Hamad Amin Ahmed in our company as an engineer with a monthly salary of USD 3,000 as of 01/10/2010”. This document clearly implies that the salary was in ongoing payment; but see paragraph 194 below. As to the company, the Husband maintained that there was no requirement in Iraq that accounts for the company be prepared (and no accounts, or similar, were produced).

Various directional orders followed. On 7^th November 2012 District Judge Aitken made provision for evaluation of the English properties and calculation of any capital gains tax (“CGT”) liabilities. The FDR was prescribed to take place on 27^th February 2013. A compromise was reached which became reflected by Orders made by District Judge Hess on 12^th and 17^th December 2012 and by Coleridge J. on 6^th January 2013 the burden of which was that the Talaq divorce should be recognised as having validly dissolved the marriage and the Wife’s application for financial relief should proceed by consent under Part III of the MFPA 1984. It was permission to this effect that was given by Coleridge J., together with a direction that the documentation and evidence already proffered in the financial remedy proceedings under the Matrimonial Causes Act 1973 should stand for the purposes of the Part III application.

Both parties in conventional manner served questionnaires based upon the other’s Form E; and thereafter schedules of deficiencies, in each case supplemented by some supplemental questions. The Answers to first Questionnaires were dated in the second week of January 2013 and the Answers to second Questionnaires in the second week of February. The foremost feature of the Wife’s material was the production in February of, per the requisition which had been put to her by the Husband, “all such evidence [as] she wishes to rely on in support of her allegation that the Respondent has assets in Iraq”. Attached were a collection of documents some of which had not previously been presented in evidence. Some had, with the assistance of Mazin, been collated through painstaking investigation in Iraq. They included:

As to the Husband’s Answers to the Wife’s Questionnaires (the first of which questionnaires was based solely on what little he had said in his Form E), the information as to Iraqi resources was again limited. He said that, apart from the property at 211 Gulan Street, he had not stayed on a regular basis at any other property in Iraq. He had been asked very relevantly about the “land” which in his Form E was said to be previously held in his name on behalf of his brothers and sisters but now no longer held by him. That land, he said, was the property at Gulan Street.

As to remarriage, he stated baldly that he had not been living with a woman in Iraq during any part of 2012; that he knew Shahlia (the lady in question), who was, he said, a relative of his; that he had no relationship with any other woman; that he did not intend to become engaged and/or married in the near future; and that he had not been through a ceremony of marriage in 2012. There are of other relevant answers in the Questionnaire material, to which I shall make ad hoc reference at the relevant stage.

The Financial Dispute Resolution hearing happened before District Judge Aitken on 27^th February 2013. It failed to result in settlement, and the District Judge made directions as to the filing of narrative (and any supporting) statements. As to the impact of CGT upon realisation of the land and properties in the case, he provided for evidence from a forensic accountant (Mr Dodge of Walton Dodge). The District Judge also, importantly, directed the evaluation on joint instructions of “the land and properties in Iraq alleged by the [Wife] to be in the ownership of [the Husband], or, if disposed of by [him]since 1^st January 2010, … of the alleged interests that he had.” The Husband was, of course, present at Court for the FDR. He was what may now be described as deafeningly silent as to the previous tenure, transfers and alleged ownership of various Iraqi properties. He said nothing then, although subsequently bitterly complaining that his family, and inferentially he, were much disenchanted that the Court had ordered evaluation of their property. When challenged about his silence, the Husband gave make-weight explanations, including what he termed bad communication between himself and his lawyers, who he said were fighting the case in their way, and the costs consequences of such communication.

The next step in the litigation was an application by the Wife for maintenance pending suit. She sought an order of £15,000 per month. It was due to be heard on 26^th June 2013. As the application approached, the position adopted by the Husband can be briefly encapsulated. As to Iraqi assets, he had no assets in Iraq at all. Some property (but, subject to Gulan Street, it was, apparently, only land) had once been in his name, but reverted to family ownership. Any suggestion made by him to a third party that he had substantial assets in Iraq was merely an exaggeration. His income was very limited, confined to $3,000 per month (but ongoing).

This presentation was subject to upheaval by virtue of a letter sent by his then solicitors, Burgess Mee, to the Wife’s solicitors dated 21^st June 2013, three days before the maintenance pending suit hearing. It came as if a bolt from the blue. In the letter Burgess Mee stated, in the context of the issue as to Iraqi resources, that in respect of each document and allegation levelled at the Husband he either did not accept the validity of the documents in question or proffered an alternative explanation. It was said that it had taken the Husband a period of months to collate documents in rebuttal of the Wife’s material, which documents were under review, but that broadly his evidence would present one of two positions.

The second of these was that

“the documents produced by [the Wife] are not genuine or do not reflect the actual position on the ground”.

The first was as follows:-

“His brother Mawlan in Iraq had two powers of attorney that enabled him to buy, sell and transfer property in and out of [the Husband’s] name, and that the properties which have been transferred back into the names of [the Husband’s] family in late 2012 belonged to other family members from the outset. These properties have never belonged beneficially to [the Husband] and following recent transfers the current legal ownership now correctly reflects the true beneficial ownership. The powers of attorney [copies enclosed] pre-date the parties’ marital difficulties by several years. [The Husband] also has a copy of the minutes of a family meeting that took place in June 2012 which sheds light on the transfers back into Mawlan’s name. Copy of these Minutes is also enclosed.”.

The documents thus produced by Burgess Mee can briefly be described thus. There are two Powers of Attorney, dated respectively 11^th January 2005 and 13^th April 2006. They are in virtually identical terms. The Husband gives power of attorney to Mawlan to conduct a wide range of transactions on his behalf including the purchase and sale of property and the signature of all kind of contracts and agreements. The Family Meeting Minutes purport to record the substance of a meeting on 20^th June 2012. To put this date in its chronological context, it coincides with the breakdown of the marriage; it is 2 days after the pronouncement of Talaq divorce by the Husband; it is 6 days before the Wife was informed by Gaylan’s wife of the Husband’s prospective remarriage; and it post-dates the construction licence and planning permission documents in relation to the hotel by around 4 to 6 weeks;. It also came at a time when the Husband, I find, felt a strong sense of anger and indignation that the Wife, as he saw it, was failing in her duty to uproot herself from England to Iraq. He was of the opinion that she had no right to share in any commercial success of his in Iraq. This conclusion is supported, but by no means dependent upon, extracts from the SKYPE dialogue. In its course the Husband variously complains that the Wife has not helped him at all; that it was she who left him by not coming to Iraq; that he warned her to return, but she had not returned; that, when she herself went to Court, she had woken him up; that Iraqi resources (he was dealing with the Italian Village at the relevant juncture) were none of her business; and that, if she did not come to Iraq, there was nothing for her at all.

I am satisfied that, whatever meeting took place between whatever members of the Husband’s family, it was at a time when the Husband probably had no substantial intention of perpetuating his marriage to the Wife. The agreement refers to clarification of the fate of the family money of which the eldest son takes care; and to the Husband’s personal problems and the fact that the family is not responsible for them, in consequence of which the decision was made to return family money to “the younger brother”, which apparently meant Mawlan. The document needs to be referred to in detail for its full terms; but the quotation of its paragraphs 3 and 4 will sufficiently convey its flavour:-

“3.

The register of some real estate and lands in the name of Mr Fouad [the Husband] and he is still abroad was necessary by [Mawlan] because he has a general power of attorney and authorised by Mr Fouad and in order to protect the interest and money of the family to the fact that Mr Fouad has a foreign nationality, this facilitates the routine actions in Iraq receiving many facilities by the public sector, and all the paid money was exclusive of the family’s money and he does not have any right to it but he makes the administrative issues easy for us and protect the family interests. These actions were carried out without the aware and knowledge of Mr Fouad and as determined by the interests of the family and by agreement.”

4.

After notification of the family by Mr Fouad with his intention to return to Iraq and stay there and his intention in managing and taking care of the family money and according to the traditions and customs followed, [Rokan] returned family money in the name of Mr Fouad, not as an owner but as the oldest brother responsible for managing and protecting the interests of the family, the other advantage of him is that he also has Swedish citizenship and this will facilitate a lot of things for the family”.]

I return to the Powers of Attorney and Family Minutes shortly.

Burgess Mee went on to suggest, which became accepted on behalf of the Wife, that as to Iraqi resources there should be formal pleadings, as prescribed e.g. by Mostyn J. (as he now is) in TL v ML and Others [2006] 1 FLR 1264. Attention was also drawn to the dictum of Mostyn J. in Fisher Meredith v JH and PH [2012] EWHC 408:

“42.

In my judgment there is a clear distinction to be drawn between the state of affairs where a claimant is saying that a property held in the name of a third party is the property of the respondent; and the situation (as here) where the respondent says that property to which he has legal title is beneficially owned by a third party.

43.

In the former case I strongly endorse my discipline. In such a case there is a clear obligation on the claimant to apply to join the third party at an early stage and to seek to invoke the discipline in TL v ML. Only in this way can the pool of assets over which the dispositive powers of the court ranges be established and an effective FDR take place.

44.

In the latter situation, which is the case here, the duties are by no means so clear cut. If an asset is (say) in the name of the respondent husband, then in my judgment the starting point, or prima facie position, is that it belongs to him both legally and beneficially.”

Nothing at all had been said by or on behalf of the Husband about the above-mentioned documents prior to Burgess Mee’s letter. It is, moreover, inconceivable that he had passed them to his solicitors previously, for example at the times when he produced his Form E and two Answers to Questionnaire. Plainly, the documents would have had to be disclosed at either of those stages of the litigation, had his solicitors known about them (or, failing disclosure, they would have had to withdraw from the case).

Burgess Mee also suggested that joinder of the 4^th and 5^th Respondents was imperative and they issued an application to that effect. It was not opposed.

The Husband produced a statement the day before the hearing, which exhibited various documents including copies of the Powers of Attorney and Family Minutes. On 26^th June 2013 District Judge Hess addressed the maintenance pending suit issue, as to which he made a holding order to cover the 3 month period until trial which was premised upon his predictable sense that he was unable to make any order which expressly or impliedly involved pre-judgment of the Iraqi resources issue. £94,000 was distributed to each party and the UK assets thus became further eroded. The Husband gave an undertaking, which he breached, to pay the Knightsbridge Court, 23, St Mary's Road and Berkhamsted Avenue rents into a specified SCB account and to pay certain specified outgoings. The District Judge also considered the matter of directions and made several decisions which in the event were incorporated of the Order dated 1^st August 2013 made by District Judge Berry (the reason for the deferment was, to confirm, some procedural muddle the detail of which is immaterial).

There was a further directions hearing on 1^st August 2013 before District Judge Berry. The directions included joinder of Mawlan and Rokan as parties, with permission to them to file both a pleading and a witness statement and an invitation to attend the trial. As to valuation of Iraqi property, the exercise envisaged by District Judge Aitken had not been implemented: there was no single joint expert. The Wife was given permission to rely on her existing valuations, with a time limit imposed as to further valuations. The Husband was given permission to adduce his own expert evidence of the valuation of real property in Iraq in response to that relied upon by the Wife. In both instances the valuers were enjoined to use their best endeavours to comply with the requirements of Part 25. I record for completeness that another direction given by District Judge Berry ordained a split trial, with the first 5 days allocated to the determination of the preliminary issue of the extent of the parties’ respective interests in land, property, business interests and income in Iraq. It is a mode of trial which I unhesitatingly overruled, without any opposition from Counsel. The other directions need not be recited.

The pleadings, being the Wife’s Particulars of Claim and the Husband’s Defence and Counterclaim, are in their amended form dated 8^th and 14^th August 2013 respectively. To revert specifically to the Iraqi assets issue, the Wife’s pleading had attached to it documents the great majority of which had already passed between her and the Husband in the forensic process over the previous 14 months, but some of which had not previously been forthcoming, for the most part on account of the fact that she had only with Mazin’s assistance obtained them during 2013. These last-mentioned documents included a number of certified Iraqi Land Registry documents and also other documentation which either throws further light on the Husband’s tenure of properties already known or prima facie suggests that he had, or may have had, involvement with other real property thus far unknown. Properties in the former category were those at Hasarok and Sairawa. The, so to speak, new properties are at Ashti, Pank, Hiran City, Kavar City and Brach. As to all of them, see paragraphs 175-8 below.

Also attached to the Particulars of Claim was a substantial body of documentation and promotional material relating to potential projects for Pristine and in some instances tenders by the company in its quest for business.

The number and substance of the documents appended to the Husband’s Defence and Counterclaim was limited. Included were various documents which (as in the case of the Wife’s presentation) had originally been produced much earlier, for example as exhibits to the Husband’s Form E or to Burgess Mee’s correspondence; and a series of some 14 Iraqi Land Registry documents all dated 2004 which he says suggested that plots of Hasarok land were or had been held in the name of Rokan. With the possible exception of the last-mentioned, this documentation would have taken not months, as stated by Burgess Mee in their letter of 21/6/2013, but only days to collate.

Yet more documents not previously served were attached to the Statements which the parties exchanged in September 2013, most particularly to those emanating from Mazin and the Husband personally. Amongst those attached to Mazin’s Statement were documents throwing light upon an alleged liability of the parties to the Husband’s brother, Gaylan (paragraphs 104 ff. below); email correspondence re the property at Munster Road (paragraph 95); further documents to do with the SCB re-mortgage; a document re property at Kavar City; more documentation re Erbil’s expansion etc; and certain emotive email correspondence between Mazin and his father in 2012-3, by which time their relationship was fragmented. Few, if any, of them will have taken the Husband by surprise. The Husband meanwhile produced a Statement which, in terms of the subject-matter which one would have expected to be covered, omitted more than it included. It did, however, attach one-page statements of Mawlan and Rokan. The Husband also raised, to an extent exceeding anything said previously, allegations of fraud and bribery against the Wife and Mazin, and put in material casting aspersion upon the Wife’s Iraqi valuations, to which I refer again in paragraph 184.

The final interlocutory order was that made by Deputy District Judge Elliot on 12^th September 2013 which provided that, unless certain specified documentation was provided by 16^th September (the day falling exactly one week prior to commencement of trial), the Husband, Mawlan and Rokan be prevented from filing any further evidence before the hearing without leave of the court.

Before moving to the statutory factors and overall merits, I shall give further consideration to the Iraqi proceedings; to the Husband’s allegations of bribery and corruption against the Wife and Mazin; and the above-mentioned documents disclosed by the Husband’s solicitors on 21^st June 2013.

The Husband was the first to initiate Iraqi process when, on 2^nd July 2012, he issued what have been translated as “Countenance Proceedings”. I digress to mention that the general quality of translation of the documentation which relates to the Iraqi legal actions is poor. However, it seems clear that the application which the Husband was making was for registration of the Talaq divorce. Much later, the divorce must presumably have been duly registered, thus paving the way to the conversion of the Wife’s financial remedy application to an application under Part III.

The Wife, already outraged by information that the Husband was taking or had taken a second wife without her knowledge or consent had come to learn of the Talaq pronouncement in July 2012. The, once again, unilateral character of the Husband’s actions struck home to aggravate her sense of indignation, which would have done nothing but strengthen her avowed intention to have the Husband punished for the stated remarriage, even to the extent of imprisonment.

The Wife travelled to Iraq in July 2012. No doubt she would have seen her own family there; but otherwise her objectives were, first, to seek documentary evidence in support of her case for financial remedy and, secondly, to institute proceedings in Erbil, which she did on 28^th August 2012. In summary, the documents produced suggest that on that day she proffered a complaint communicated to the Erbil police with three limbs. The first was an allegation of financial misfeasance; the second an allegation that the Husband had threatened that, if she went back to a particular area of Erbil, he would order his family to kill her and “chop [her] in parts”; and the third that the Husband had married another woman without informing her and asking for her consent and had divorced her in absentia again without informing her. The essence of the financial complaint, as recorded, was that the Husband had deceived her, in that he had received from her $5,000,000 deriving from her professional work as a “doctor” in the United Kingdom for the purpose of acquiring property in her name in Iraq, which he had not done. This, if said, was blatantly untrue.

On the following day, 29^th August, the Husband made and signed an application. He said that for a long time he and the Wife had become unemployed in England and he had asked her to go back to Kurdistan, but she would not in any way agree to return. He said that she had come back to the Kurdistan region for two weeks but had then said that she could not live there. So, he said, he himself raised a law-suit complaint and informed the Wife that he had divorced her outside the court. He mentioned informing her of developments by telephone directly, through her lawyer and through the Department of Foreign Relations. He said that he had not got married, but only engaged. At that time the Husband was released on bail.

The next development was an intervention by way of separate action brought by the Husband’s brother Gaylan, also commenced on 30^th August. It sought relief to the effect that the Wife be banned from exiting Iraq, because she owed him money. In another contemporaneous document an action was also apparently started by Gaylan against both Wife and Husband asserting that on 25^th November 2010 they had borrowed 122,750,000 Dinar from him, but were denying the borrowing. That is broadly the equivalent of $90,000. This figure has a significance explained in paragraph 108(a) below.

On 2^nd September Mazin signed a witness statement. The nub of his assertion was that the father had re-mortgaged the home in the United Kingdom for $5,000,000, had removed the money to Kurdistan for investment and was now saying that none was left, for it had been transferred to other people. On 13^th September there was an interview of the Husband conducted by the Chief of Police, Abdul K. Othman (“Othman”). The interview was videoed, although the Husband alleges that this was done without his permission and also that the transcript provided is both inaccurate and fails to cover the entire interview, because there were words between him and Othman prior to the beginning of the dialogue transcribed. The key points emerging from the transcript, if it be authentic, are as follows. First, the Husband was clearly admitting that he had become remarried to a woman named Shahlia under the auspices of a Mullah and that he would come to court on 27^th September, with Shahlia, to establish that fact. This was, he said to Othman, a religious marriage (although he seemed to say otherwise in oral evidence). Secondly, as to the Wife, he said that he did not mind if she came back and that he would give her everything she needed, and would buy her a house, a car and a surgery. He continued to the effect that he would buy the children 5 houses and her 2 houses, and would write that down in front of the judge.

On 30^th September 2012 the Husband gave a Statement in the Court in Erbil. He referred to a claim that he had made against his Wife in the Court in Erbil on 13^th October 2011 (about which there has been no mention or evidence before me), saying that thereafter the Wife agreed that she would return to Iraq, but did not do so. He confirmed that on 18^th June he had divorced the Wife “outside the court” in the presence of Mawlan and Rokan, and that he had been married to his second wife by the Mullah, but that they had not done a wedding ceremony. The Wife, he said, had no justification not to come back to Kurdistan.

On 22^nd November 2012 a communication was sent by what appears to be a junior “first” Judge to a Higher Court in Erbil. It referred to the complaint of remarriage made by the Wife on 28^th August, to the fact that there had been an investigation and to the decision made on 30^th September to arrest the Husband, following which he was released on 2^nd October because he had submitted a demand for approval of his divorce in Erbil and that decision was pending.

Further information derives from two documents the authenticity of which is under (late) challenge by the Husband. On 20^th November 2012 Othman sent what appears on its face to be an officially authenticated memorandum to the English solicitor, Mr Miller, who has acted for the Wife in England throughout these proceedings. It referred to the 13^th September interview, in which the Husband had confessed to having married a second wife, Shahlia. The interview was, Othman said, video-recorded and permission was granted for it to be used as evidence in the Court of Erbil and in the UK. The next several lines of the memorandum confirm the substance of the interview as already described. Othman then referred to the Husband’s constant lies and deceit to the police and the fact that he kept denying his marriage to a second wife after self-confessing to having married her. (This scenario is not otherwise evidenced). For this reason, it was said, he was arrested and placed in prison for 2 nights before being released on bail. In the final paragraph it was recorded that the Husband had told Othman that he has several properties and land in Erbil and that he is a wealthy man there. Whether that was an extended interpretation of what the Husband had said about giving the Wife and the children houses, or alternatively there had been some conversation between the Husband and Othman which was unrecorded in writing or by video, is unclear.

Finally, on 5^th February 2013 the Wife’s lawyer in Iraq, Azad Choumani, wrote a document addressed “To whom it may concern”. He gave a historical narrative of his filing on behalf of the Wife three claims against the Husband founded upon (i) his second marriage, (ii) his threat to kill her, and (iii) what is translated as his betrayal of honesty of assets. The then state of those proceedings was described and, finally, Choumani mentioned finding that the Husband had sold and changed numerous lands and properties that were registered in his name, he further mentioning registration into the name of Mawlan and the production of probative Land Registry documents.

A number of issues arise in connection with the Iraqi proceedings, even if, as in the case of the issue as to the Husband’s remarriage, the proceedings (in the absence of a finding by me of reckonable conduct) do not impact directly upon the assessment of financial resources in Iraq and therefore the quantification of any financial relief award. The principal issue from the Husband’s viewpoint arises from the obvious untruth of any assertion by the Wife that he had misappropriated $5m of funds which she had supplied from her own earnings whether as a doctor or otherwise. The Husband says that this complaint is what landed him in jail, but the documents make clear that the catalyst for his imprisonment was in fact the charge, and admission, of remarriage. It is very understandable that the Husband should have latched very firmly onto this extract from the record of the Iraqi proceedings. He first raised the point in his Form E and thus exposed what is a mystifying conundrum. On the one hand, it seems incredible that the Wife would make an allegation which is so far from the truth, so easily disprovable and so likely to be exposed in the English proceedings. She insists that the inaccuracy arose only from misunderstanding arising from linguistic difficulties (she not speaking Kurdish) and that, as soon as she realised that what she had told the police in Erbil had been so badly misinterpreted, she took steps through her Iraqi lawyer to return to the court and set the record straight. There is also the point that her Statement varies considerably from what Mazin told the Erbil police, whereas, if she was intent upon portraying a radically false picture, one suspects that they would tell a harmonised story. Mazin too told me that his allegations against his father had been misunderstood: specifically, the officer to whom he spoke found it impossible to understand the concept of a re-mortgage as he had sought to explain it. That said, the Wife’s narrative to Othman was a great deal wider of the mark than Mazin’s.

On the other hand, it is disquieting to observe the inescapably wide margin between what the Wife is recorded to have said and the actual truth of the matter. Given the Wife’s furious reaction against the Husband arising from her genuine conviction that the Husband had both remarried without her knowledge and consent and had surreptitiously removed family assets to Iraq, I think it probable that, in describing the history to the police in Erbil, she became carried away and resorted to a degree of exaggeration, but to a precise extent which I am unable to specify. In assessing her overall credibility, I shall bear this factor fully in mind.

The other issue under this heading is covered immediately below: it is in the area of the Husband’s escalating, for the most part late and ill-supported allegations against the Wife and Mazin of bribery and possible forgery of documents. Such allegations are now evidenced by two complaints against officials in Iraq, one of them against Othman.

In the course of the litigation the Husband has made various such allegations. I now address them, observing by way of preface that in her closing submissions Miss Dines was eminently realistic and I did not perceive her to pursue the allegations with much vigour. In summary:

I turn back to the documents produced by Burgess Mee in June. As to Mawlan and Rokan, I find myself unable to give any significant weight to their limited written contributions attached to the Husband’s September 2013 Statement, a fortiori in the absence of oral evidence in the course of which they would have been cross-examined. I do not doubt that, if the Wife had not been able to expand the substance and quality of her supporting evidence as to Iraqi assets by laying her hands on material much of which was discoverable and should have been produced by the Husband himself, the narrative initiated by Burgess Mee’s letter of 21^st June 2013, including his purported explanation for tenure e.g. of the hotel / land, and the Italian Village and other properties, would never at the Husband’s behest have seen the light of day. As it is, that letter had to be written, because the Husband was now cornered and had no alternative but to try to explain himself. The picture it portrayed is in my judgment unconvincing. It may well be, and I will proceed upon the basis, that the Powers of Attorney are genuine rather than forged; but in my view they prove nothing at all conclusive in the Husband’s favour, because I find the reasons for their execution given by the Husband to be unconvincing.

Those reasons were variously stated by him, but the principal explanation went along the lines that in practical terms life was made easier for other members of the family, Mawlan most particularly it seems, if their / his property transactions in which he, the Husband, had according to him no interest whatsoever were nevertheless conducted in his name, because he was a person of foreign (Swedish) as well as Iraqi nationality, and had to his name a qualification, being a degree in architecture. Just why this was to the advantage of Mawlan or any of the siblings was never satisfactorily explained. The same applies to another reason advanced, namely that the Husband had property in England. It is to be noted, incidentally, that as a general proposition the Iraqi Registry documents cite the Husband as being an Iraqi national.

A stage was reached when Mr Shaw was in my view justified in putting to the Husband that the stance he had taken on this point seemed ridiculous. The Husband was not robust in his response and conceded that it may be difficult for others – he meant, I think, especially other people from a different culture – to understand.

The Husband described what I found to be an unlikely scenario, namely a period of several years over which other members of the family, Mawlan most particularly, conducted various property transactions in his name without his knowledge or prior consultation and even after each event the Husband learned little or nothing of the detail because he was not interested.

Another question in this area of the case pertains to Mawlan’s and Rokan’s financial status. The Wife, Lara and Mazin are adamant that the Husband’s family is of a financially poor background, such that as recently as the 1990’s the majority of its members lived in one, albeit substantial in size, house. The Husband bridles at this suggestion: for example, he says, which seems to me improbable, that when all those years ago he was at university in Romania his father provided him with an annual stipend of $70,000 by way of support. The Wife says that Mawlan and Rokan have relatively modest occupations: Mawlan is principally a teacher and Rokan sell fireplaces and bricks imported from China. The Husband says that Mawlan has a business importing cigarettes and also imports air conditioning machinery from Iran. He says that Mawlan is a man of substantial wealth and has raised in the period of the last three years something like $1,000,000 from the bank (paid over, he says, by the bank in cash) so as to finance projects (including the hotel). In their statements Mawlan and Rokan say nothing about their income, occupations and general financial status. Mawlan does mention in his Statement a large loan, but puts no flesh on that bone. Nor are the property transactions under scrutiny in this case meaningfully addressed.

It is also very much to be borne in mind that, if Mawlan’s and Rokan’s engagement in the proceedings had been more substantial and on its face more impressive, their presentation would have been tested not merely by cross-examination but, they being parties, by the process of questionnaire and discovery. None of that has happened. No documents are produced. No pleadings have been filed by them. As matters stand, their participation, and their evidence, are flimsy and of little consequence.

As to the Family Minutes, they do nothing to deter me from these conclusions. The juxtaposition of the date of the alleged meeting to the breakdown of the marriage is striking, and the document was clearly brought into being directly in consequence of these proceedings.

The position as to capital assets in the UK is as set out in the Schedule attached to this judgment and marked Appendix A. Some figures require explanation.

In 2004 it became apparent that the conversion by the previous owners of the property into two flats had been effected without planning permission, and Notice was served upon the Husband, who, however, did not harken to the requirement of reinstatement which was imposed upon him. In summary, the upshot was that in 2012 after initiation of criminal proceedings by the local authority a Confiscation Order was made by the Harrow Crown Court in the sum of £103,173, together with an Order for costs in the sum of £10,837. The Wife, who seeks to come out of the case with (at least) all the UK assets, says that the equity in Berkhamsted Avenue should not be depleted by the payment of the sum owing to the local authority, a liability which she asserts is the Husband’s fault and should be his sole responsibility. It is highly likely, however, that accession to this submission would result in the local authority never recovering the debt. Is that appropriate; and, indeed, what is the law in this area (neither Counsel cited it)?

I have considered the cases of Re MCA: Customs & Excise Commissioners v A [2003] 1 FLR 164 (in particular paragraphs 43-48) and Webber v Webber (CPS Intervening) [2007] 2 FLR 116 (paragraphs 40-42). These authorities demonstrate that there is parity between the Matrimonial Causes Act 1973 (and by analogy the MFPA 1984) and the Proceeds of Crime Act 2002: neither has priority over the other. It is a matter of discretion on the facts of a particular case whether to make such a financial remedy/relief order as will facilitate, or impede, the enforcement of a Confiscation Order.

In Re MCA it was accepted that the wife in that case had no knowledge of the husband’s criminal activities; that the house which was the main point of contention was untainted by drug trafficking; and that, if the Confiscation Order prevented a transfer of property in favour of the wife, her net financial position would be such as to render her both homeless and in a precarious financial position. The current case is distinguishable. The Wife’s financial position, even if the court awards her the UK assets, may not be particularly enviable when related to the lifestyle enjoyed during the marriage; but she will be far removed from homelessness or penury. I take the view that on the facts of this case the Confiscation Order has produced a liability upon the family which should be regarded, albeit loosely, as a shackle upon the equity in Berkhamsted Avenue; that, if the liability is left to be discharged solely by the Husband, it is likely to be unenforceable; and that, on balance, the justice of the case is that the monies owing should be recoverable by the local authority from the equity in the property. It is in those circumstances that the liability appears in Appendix A above the bold horizontal line.

In questionnaire the Husband was asked whether he had an interest in any property in Munster Road, he having failed to disclose any such asset in his Form E. He replied that “[he did] not have any interest in this property”. This was untrue: Munster Road is held jointly by the Husband and Jalal in equal shares (as Jalal has readily confirmed) and to his second statement Mazin exhibited a document which evidences a tenancy in respect of which Jalal and the Husband are the landlords and are entitled to a rent of £345 p.w. The Husband’s explanation for his denial is to the effect that, Mazin being the owner of a property at 59, Avenue Road, Kingston, he, the Husband, does not regard his share of the Munster Road equity as owned by himself, because he has hypothecated it to one or both of the other children. I say “one or both” because he variously stated that his interest in Munster Road was owned by both children, and then that it was or was to be owned by Alan on the basis that Berkhamsted Avenue would be owned by Lara.

The stance taken by the Husband is untenable. There is a wealth of authority, which I need not recite but which begins with the case of Lilford v Glynn [1979] 1 WLR 78 which establishes that the court in financial matrimonial proceedings is not concerned either to allocate marital assets to the children of the family or to achieve fairness for, or between, them. One half of Munster Road is without question owned by the Husband and is fully reckonable as between himself and the Wife. Whatever arrangements either parent may make in the future by way of making provision for any of the children will be a matter for them.

I may or may not be prepared to take the same view as in in the case of the Confiscation Order when it comes to the Husband’s unpaid costs, at least to the extent that they are articulated in Form H. It was essential, and greatly in the Wife’s interest, that the Husband should be represented at this hearing; and I am wary of leaving his solicitors and counsel at risk. To reach this decision (in default of agreement between the parties) I will need to know precisely what arrangement is in place between the Husband and his solicitors for payment of costs. For the moment the liability appears above the line.

As to the figures below the line, Mr Dodge’s Report as to CGT arrived after the trial had commenced. There was no argument from counsel about it, although (I assume as a matter of formality) the Husband says in stating his open position that the deductions from the sale of the UK properties for which he contends should include “applicable CGT”. The key proposition which derives from the report is that, providing that the Husband is not properly found by HMRC to have been resident in the United Kingdom in the tax year 2013/204, a sale or transfer by him of the real property assets in his name will not result in any liability for CGT. Mr Dodge was instructed to the effect that the Husband is not resident in the United Kingdom; the Husband stated in terms in his November 2012 Statement that he was habitually resident and domiciled in Iraq; and he made it clear to me in oral evidence that he has no intention of returning to this country (now or ever). In response to a written enquiry of mine after closing submissions Miss Dines, having taken instructions, conveyed only that the Husband has not registered for non-domiciled status in the UK and fears that CGT may be payable. In these circumstances I proceed upon the basis that any potential CGT liability can be ignored.

As to the Husband’s credit card liabilities, they are said to be in the region of £12,000, but no credit card statements whatever have been produced nor am I aware of the chronology and substance of this indebtedness, which I take the view must be discharged by the Husband personally from other resources. His asserted liabilities to Simmons Gainsford, re Knightsbridge service charges and St Mary’s costs should also have been discharged by him long ago, particularly since he has been receiving most of the Knightsbridge Court and St Mary’s rents since March 2012.

In his Form E the Husband announced that he had a liability to a man, who is apparently based in Iraq, named Sidek Rasheed arising from a loan of $875,000 made in the year 2011. There was a document attached to the Form E headed “Sidek F Rasheed of 65 Bewata, Erbil” and dated 19^th March 2011. It is headed Letter of Confirmation, addressed to the Husband at Coombe End and reads “I am confirming that I lent $875,000 to Mr Fouad Ahmad from (Coombe End Cottage, Warren Road). The loan is to be for 24 months on basic rate of %15 annually payable annually or in the end of 2 years from the today’s date 18/03/2011 (confirmation date). Yours truly, Sidek F. Reasheed”. It is the only document (original or corroborative) which has been produced by the Husband.

The Wife’s position is that, prior to the Form E, she had never heard of Sidek F Rasheed, a proposition upon which she was not challenged. In her Questionnaire she asked for explanation, including information as to the whereabouts of the original loan document and the purpose of the loan. She sought documentary evidence of the loan being made, including production of the bank statement showing the relevant credit entry. The Husband responded to the effect that Mr Rasheed retained the original document; and that he, the Husband, was the “guarantor for a business looking to invest in an oil refinery, which business did not ultimately proceed”. The request for proof of receipt was totally ignored. When asked about this alleged loan in oral evidence, the Husband said that its purpose was “to buy an oil refinery”, a purchase which, however, did not in the event happen. He claimed that he had received written demands from Rasheed asking for his money and that he had sent them to the Wife’s lawyers, which they say is not true. Thus, according to the Husband, he has owed Sidek Rasheed $875,000 plus 15% for now a period exceeding 2½ years, a total of c.$1,225,000. Contrary to his assertion, he has not produced a scintilla of supporting evidence over and above the copy 19/3/2011 document. Finally, and very significantly, he has not explained –

I firmly reject the Husband’s assertion of a loan from Sidek Rasheed, and do not believe that it was ever advanced. That factual finding apart, it is plainly incumbent upon anyone in the Husband’s position who asserts a large debt to provide all reasonably available corroborative proof of its existence. Not infrequently documentary proof will be sufficient: in other cases, particularly where the debt is robustly challenged by the opposing litigant, a supporting statement from the creditor, potentially leading to oral evidence, will be required. In the instant case the Husband has fallen far short of persuading the Court that a liability of $1,225,000 to Sidek Rasheed should be taken into account in the Court’s overall assessment of resources.

Similar considerations apply in the instance of an asserted liability to the second eldest of the Husband’s brothers, Gaylan. In his Form E the Husband stated that in respect of the building and renovation costs of Coombe End he and the Wife owed Gaylan a balance of £633,400, Gaylan Baiz being described as “the construction company we used to undertake the works to Coombe End ....”. A copy invoice was attached dated 25^th November 2010, which appears on its face to have been signed by both parties. It is an extraordinary document, certainly taken in isolation; and isolated it is, because not a single other document, by way for example of previous interim or subsequent invoices or other explanatory material, has been produced. In summary, the purported invoice refers to a demolition and new build, the demolition being 85%-90% of the existing building. It refers to rear extensions, side extension and loft extension to be built and gives other descriptions of work in language more readily suitable to a quotation than an invoice at the conclusion of a project. The total invoice is for £783,400 less sum paid £150,000 = £633,400, expressed “to be paid in two years”, with all checks [cheques] payable to Gaylan Baiz.

Again, this is a large indebtedness in the context of this case. The Husband’s request, as one limb of his applications for adjournment, for the opportunity to call evidence from Gaylan rang hollow (an observation which applies pari passu re Sidek Rasheed). He has known for a very long time that this liability is alleged by the Wife to be completely bogus. Supported by Lara and Mazin, whose evidence I broadly accept on the point, the Wife says that Gaylan’s involvement in the work at Coombe End was limited and of a relatively mundane nature. The detail was not investigated, but a brief description was given of other (apparently Polish) builders who did the main work, which in accordance with the planning permission granted, it is emphasised on behalf of the Wife, was not a virtually full demolition, but the building of extensions. What is more, says the Wife, the date of the only copy invoice produced betrays its lack of authenticity, because, whereas it is towards the end of 2010, the work at Coombe End was, as evidenced by input from an involved professional firm named Harper Tweedie, completed in August 2009. That is a disparity which the Husband did nothing to resolve.

In an email dated 26^th October 2012 the Lead Officer (Building Control) of Kingston-upon-Thames sent an email to Mazin which is informative. It recounts that planning permission re Coombe End was granted on 24/12/2007 and that from the Building Control perspective work commenced on 30/01/2008 and reached practical completion on 21/04/2009. The email continues that work was described as “Erection of 2 storey side and rear extensions” and although the existing building was radically altered, it was by no means completely demolished.

There was extended and conflicting evidence as to Gaylan’s means, including close examination, which I did not find helpful, of a sum of £20,000 passing from Gaylan to the Husband which may have been or but probably was not an actual loan. The Wife and in particular Lara were adamant that Gaylan when in England was, and is now, a man of very limited means who according to them had run a fish and chip shop at one stage and even relied upon the State to pay his rent on the property in Wimbledon which he and his wife occupied. Lara also pointed to a conversation she had with Gaylan’s wife, who had intimated to her that Gaylan had little money. Be all that as it may, there is certainly no evidence that Gaylan is a man of wealth in a position to wait for several years for payment of such a large debt (which, if it is authentic, would have been consistent with Gaylan having to pay very substantial disbursements, for materials and labour, which would have put him severely out of pocket).

There are three further matters which put the existence of the debt very much in question, the second and third of which may (unless I am mistaken) have escaped the Wife and her advisers.

I have mentioned that the copy 2010 invoice seems to bear the signature of both parties. The Wife staunchly denies that she ever signed this document, and I have noticed that her signature is not precisely the same as in other documents. That said, neither in this or any other similar respect has there been the evidence of a handwriting expert. Whereas I allow for the clear possibility that the Wife did at some stage sign the document, I cannot in the light of all the other factors just mentioned accept, as the Husband would contend, that the Wife ever knowingly acknowledged that a very large indebtedness in the region of £800,000 was ever incurred in favour of Gaylan.

There is one final point to do with the Rasheed and Baiz loans. In combination they amount per the Husband’s September 2013 Statement to a liability of over £1,300,000. According to the Husband both parties need to be re-housed, and he hopes for and needs capital ex the UK assets to invest in projects in Iraq. The figures in this judgment make it abundantly clear that, if the loans are real and payable, no balance of funds for any venture in Iraq would ever be available, and the Husband must know that.

For several years beginning some time in the earlier part of the 2000/2010 decade, the Wife operated a business in beauty treatment, working in part from rented premises in the Harley Street area and in part from home. It was called Lara Cosmo Clinic. In about 2009, in circumstances almost inevitably in dispute as to whether it was at the Husband’s or at the Wife’s behest, the business was terminated. There is only one set of accounts contained in the documentation. They cover the period between June 2005 and April 2006 and show that a small loss of £225 was made after allowing, however, for £6,996 depreciation.

The Husband says that the Wife has a future earning capacity, which in oral evidence he put at up to £10,000 per annum. However, he has adduced no evidence in support of that proposition. He simply says that the Wife has past experience, and established skill, in beauty treatment and that there is no reason why she should not turn her hand to techniques, for example the giving of treatment by injection, which exceed her previous experience and will require further training. It is clear that he also deems it important that the Wife obtained, albeit over 30 years ago, a degree of medicine and had some limited training or as she says work experience in nursing at a hospital a considerable number of years ago. Alternatively, he says, if she would come to Iraq, she could be recognised and practice as an actual doctor. That is a proposition which seems fanciful.

I am certainly not prepared to proceed upon the basis that the Wife has an identifiably reliable earning capacity of £10,000 per annum. She is 54 years old on her next birthday, and has had at best limited success in the field of beauty treatment over the years to which I have referred. It is true to say that I found her very defensive on the subject: she relied heavily upon her age which according to her would prelude employment and certainly did not show willing. My instinct is that she may have a limited earning capacity if, once Coombe End is sold, she turns her mind and directs true effort to the search for some work, which she should; but arithmetically the quantum of any earnings achieved would probably have only marginal effect. Certainly, the Husband needs to understand that, if this issue were to be resuscitated in the future, it is unlikely to be resolved in his favour in the absence of much harder and more reliable evidence than has emerged at this hearing.

In his presentation to SCB the Husband was constant in his description of the hotel venture. To repeat:-

“HOTEL PROJECT VENTURE GULAN STREET, ERBIL, IRAQ. LAND BOUGHT WITH PLANNING PERMISSION TO BUILD 15 STOREY 4 STAR HOTEL. VALUE: $2,000,000. PURCHASE FOR $1,000,000. FREEHOLD, NO MORTGAGE.”

Thus it was that the Wife, who I am satisfied had on more than one occasion been shown the plot of land in question, stated in her initial November 2011 Statement that the Husband had what she described as 400 square metres of land with a value of £1,000,000. In her July 2012 Statement, in describing the Husband’s Iraqi assets, she identified “ …. hotel: US$1-2,000,000”. She withheld, not inappropriately in my view, until her Statement in Reply in August the fact that in the SKYPE conversation the Husband had told her that he had already started to build the hotel and that if finished the property would be worth $6,000,000. The Husband denied that in the conversation it was the hotel being referred to, but the transcript gives the lie to that denial, which looks absurd.

In his Statement of 23^rd July 2012, the Husband, in my judgment, lied about the hotel. He said that, although he had wanted to build a hotel, he did not even purchase the land, although he had the cash to enable him to do so (an admission which he sought to countermand in oral evidence). The reason was because the Wife asked him not to do so. In a significant sentence two paragraphs later, as already stated, he said that the Wife’s reference to a second and third property and land allegedly owned by him in Iraq were, he believed, a reference to land (sic) owned by his family. He continued that it was true that some land was in his sole name, but that was land which his family placed into his name to be held for him and his siblings beneficially. It is impossible to construe this passage as relating to the hotel venture: the Husband was apparently denying that he had in any way been involved in the acquisition of the hotel land, let alone the furtherance of the enterprise.

No mention was made of Mawlan or any impending property transfer to him.

It was only later that the Wife was able to procure in Iraq Land Registry documentation which established that:-

The Wife points to the threats uttered (I accept) by the Husband at the time of the separation to the effect that the Husband would indeed transfer assets into other people’s names.

The Wife’s general case is corroborated in no small measure by Lara, who says that the Husband showed her the land and told her of his ownership, but more particularly by Mazin. He describes how the Husband showed him various plots in 2010 and 2011 which were candidates for acquisition. He says that he saw the hotel being built, and indeed did so on each occasion when he had been to Iraq in recent times.

All this is against the background of the family agreement reached at around the end of 2011, namely that the Husband would return to England, but only after an interval of some 9-12 months during which, he told the family, he wanted to see through the building of the hotel to at least the level of a couple of floors. The mutually understood objective was to make a substantial financial profit. The Defence states that the building is a shell, and confined to one floor. The Husband told the court, however, that it has been built to and including a fourth floor (but not, he claims, by him whether wholly or even in part).

The Wife in the Particulars of Claim seeks a declaration that the transfer to Mawlan is a sham and the beneficial ownership of the hotel resides with the Husband. The Husband’s Defence is that he was, in effect, stopped in his tracks by the Wife’s opposition to the hotel venture, and that the opportunity to make the investment was taken up by Mawlan. The property was acquired, and the construction licence and planning permission obtained, in his name pursuant to the powers of attorney. He says that the false picture presented to SCB, for which Mazin was substantially responsible, was with a view to assisting him in obtaining the re-mortgage; that, inasmuch as he talked up the hotel venture to the members of the family, his motive in this and all other expressions of prosperity and wealth was to persuade them to come to Iraq; and thus that what he said about the hotel on SKYPE was untrue.

The hotel is valued by Kawa at $2,100,000 and by Awadan at $2,250,000. Generally, Kawa valuations are lower that Awadan’s and they are the valuers originally commissioned by the Wife and whose valuations are the subject of the court’s 2013 directions.

Not only in the circumstances described in this section of the judgment, but also having regard to the entirety of my conclusions including as to credibility, I hold that the beneficial interest in the hotel project is held by the Husband and that, in so far as Mawlan has tenure of the property and/ or the commercial venture related to it, he does so as the Husband’s nominee; and therefore the value of the property has to be ascribed as an asset of the Husband when computing the financial resources, thus to decide whether and to what extent the Wife should be awarded the UK assets.

As already recounted, the Wife from the outset in 2011 asserted that the Husband owned a property in the Italian Village area of Erbil. She had been there several times. Later, she explained that the family had all stayed in the property at Christmas 2010 and that she had assisted in furnishing it by choosing some of the furniture at Natuzzi in London and having it sent to Iraq, where the balance of the furniture was acquired. She mentioned her role re the furnishing of the property on SKYPE. She would have known in 2011, at least in broad terms, that in his presentation to SCB initiated in terms of draft preparation in August 2011 the Husband had asserted ownership of a property in Italian Village - valued at $460,000; freehold; no mortgage; main residence.

The Wife presented a similar case in July 2012, but still produced no document in support. The Husband’s response as advanced in his July 2012 Statement, and in his Form E, was dismissive. He did state in the preamble to the statement that his name was “[Fouad etc] of 256, Italian Village”, and in the body of the statement that he rented his residence for $700 per month. Later, he told me that the $700 per month related to the residential part of 211, Gulan Street, which on one of his versions is where he has always resided (save when with his parents) whilst in Iraq. He also said that the Italian Village property was rented by him from his brother Mawlan at £1,800 per month, although in practice he had never paid the rent. Noticeably, no liability to Mawlan for arrears of rent has ever been evidentially stated, whether in Form E or elsewhere.

In August 2012 the Wife attached to her Statement in Reply the document establishing that 256, Italian Village had been purchased off- plan by the Husband in December 2009. She referred to the SKYPE dialogue, in which the Husband clearly acknowledged the existence of the Italian Village property, said that it was none the Wife’s business and, in response to the request that he give her, as she put it, “half of our home” said that he was not going to give her anything, for the reason that she had not helped him at all. He said that it was not worth anything, a little later that not everything was in his name and then, immediately afterwards, that there was nothing in his name at all. The strong inference which he was imparting was to the effect that he had in some way disposed of the property, which later the Wife discovered to be the case. As to this and other property of which he had divested himself, the Husband made clear on SKYPE that he could recover it, although he claimed that there would be a cost.

We now know that 256, Italian Village was sold by the Husband for $480,000 to a man named Mustafa Said on 31^st July 2012; but there was no reference in the Husband’s Statement dated 23^rd July, a mere 8 days previously, to

This was very serious non-disclosure. General principle apart, the Husband was specifically aware that, if property (whether in the nature of a building or pure land) was held in his name, he should disclose that fact, because he purportedly did so in paragraph 22 of his July 2012 Statement when referring to the land held for his siblings, which land he subsequently signalled was confined to 211, Gulan Street.

The bottom line, in the cases of the hotel and the Italian Village property amongst others, is that he made no admission of the properties’ tenure in his name until June 2013, as already described, when after the production by the Wife of compelling evidence he was constrained to proffer some substantive explanation, which resulted in reliance upon the Powers of Attorney and the Family Minutes as I have described.

All this is against the background of his having over a long period assured the family of his commercial success and prosperity. As already indicated, his explanation and excuse for asserting to the Wife and the children ownership of assets which he says he did not in fact own is that he was so intent upon impressing them in his anxiety to persuade them to come to Iraq that he deliberately deceived them into the impression of wealth that in reality was purely imaginary. In my judgment, however, it beggars belief that the picture he repeatedly portrayed was simply a myth designed to woo the Wife and the children to Iraq, in circumstances where he would then have had to own up to his lies and admit to them that she / they had been lured to Iraq under false pretences and that not a single asset had been acquired by him in Iraq and that he had only secured one, and that an unprofitable, contract (see paragraph 194) in the space of several years.

The Italian Village property is valued by Kawa at £575,000 and Awadan at $550,000. It was sold, to repeat, for $480,000. It must be mentioned that the Husband has produced a document dated 5^th May 2013 which emanates from a real estate company named Haji Salam and states that, when the contract between the Husband and Mustafa Said was signed, Mawlan attended and received the proceeds of sale. To my mind this adds nothing to the resolution of the core ownership issue re Italian Village. If the Husband is being truthful, that is how it might well have happened: equally, if the Wife’s case is correct, and the Husband was, less than one month after the Wife resuscitated the English proceedings, beginning to divest himself of property in his name, using Mawlan as his cover, it is unsurprising that Mawlan would attend the signing of the contract in the manner described.

I conclude that the situation re the property at Italian Village affords an obvious example of the principle mentioned by Mostyn J in Fisher Meredith paragraph [44] and that, when the property was sold it was held by the Husband both legally and beneficially. The whereabouts of the proceeds of sale is unknown.

This Erbil property, valued at c.$325,000, is in two sections, one residential and one commercial, the latter providing Pristine’s office accommodation. The residential part has served as the Husband’s home from time to time, although I am satisfied that contrary to his evidence he resided at least for substantial periods at 256, Italian Village until its sale at the end of July 2012. The Wife, Lara and Mazin have, between them, been regularly to Gulan Street, and all testify that the Husband told them that it was his property. That is also what he told SCB in 2011/2012.

When applying for both freezing injunctions, the Wife asserted the Husband’s ownership of Gulan Street, although in the latter instance she referred to it loosely as “Third property”. In response, and in my judgment to create confusion, the Husband said that the Wife’s reference to Second and Third property and land were, he believed, a reference to land which his family owned i.e. land placed by his family in his name to be held for his siblings and himself beneficially. In Form E he stated that he no longer held any such land, and in Answer to Questionnaire that the land which he no longer held was, specifically, 211, Gulan Street. He added that there were no documents in respect of the transfer of his interest. In later Answer to Questionnaire he said that the date of the said transfer was the summer of 2012.

The Wife having, predictably, pleaded in her Particulars of Claim that, if there had been a transfer, it was a sham, the Husband in his Defence pleaded that the property was owned by Mawlan and there had been no change of ownership, which on one interpretation seemed to imply that no transfer had taken place. He produced a copy of an untranslated Land Registry document which (later translated at the Wife’s behest) seems to indicate that the property is now owned in two shares, one held by Mawlan and another by an individual called K.N. Abdurrahman.

This is indeed a confusing situation; but the fact is that the Husband told other members of the family that Gulan Street was his; always acted consistently with that presentation; informed SCB that he owned the property; and has made a factual presentation which does not hang well together.

Gulan Street is valued by Kawa at $325,000 and Awadan at $350,000. I make a finding about its ownership identical to that made re the hotel (paragraph 123 above). It follows from that conclusion that I am not satisfied as to the authenticity of the Lease, as to which I have not heard from Mawlan (who does not mention it in his statement) and there is no corroborative evidence of the actual payment of rent. Moreover, the Lease was purportedly executed in July 2011, before the transfer and therefore when the property was held by the Husband.

In her Statement dated 2^nd July 2012, seeking the second freezing injunction, the Wife referred to a “Second property” which she valued at $400,000 – 500,000, then confirming in her Statement in Reply that this was a reference to a summer house. She provided expanded narrative in answer to questionnaire and in her September 2013 Statement to the effect inter alia that the land for the property was purchased by the Husband in 2010 for $300,000, the Husband had shown her the plot and later she had actually seen the property being built. She never stayed at the property, she said, because it was completed broadly at the time of the separation.

Lara gave evidence firmly supporting the assertion of ownership by the Husband of such a property. The evidence was expressed partly in her written Statement and partly in her oral evidence, which I found impressive on this point and generally. She was adamant that her father had told her about the summer house, which he had acquired for holidays and weekends. He had shown it to her on his laptop in a partially built state and spoken to her specifically about the location of her personal bedroom: it was, she said, very obvious to her that he owned the property, for he told her so and he showed it to her. (It is to be noted that according to Lara the Husband had a specific personal folder on his laptop confined to Iraqi property specifically owned by him, as opposed to property with which he was otherwise professionally involved).

When talking to her at Coombe End, she said, the Husband would refer to Italian Village as the city house and the property to which reference is now being made as the summer villa. She freely acknowledged that the Husband was keen that she, Lara, should come to Iraq. She gave the impression of awareness in that regard but of sound judgment in her insistence that he was not telling her lies about ownership of (for example) the summer house in order to persuade her to leave England.

Mazin says that he knew that his father had built a summer house, although he never saw the property until August 2013. At that stage he knew from what his father had told him that the property was in the foothills in or towards an area called Shaklawa. He went there, found that there was only one of a total of two houses in that location which appeared to be inhabited and concluded that that must be the summer house. His father, he said, had previously told him that the property had been built as a holiday home. As early as 3^rd August 2011 the Husband had sent an email to Jalal which asked him his opinion as to which of three alternative summer house designs he preferred.

Finally, the Wife produced a photograph of what she said was the early stages of construction of the summer house depicting a number of support pillars and, on the site in question, an image of the Husband’s brother, Fahad. The Husband’s evidence was that he thought that this may be – but he was not sure – a picture of the building of his father’s mosque, in which he has been engaged. This was hardly impressive: I would be surprised looking at this and the related photographs if the Husband did not know virtually for certain what prospective building was being depicted. That evidence was in cross-examination, when the Husband also said that the Wife’s (and the supporting) evidence about the summer house was “all made up”. He said that he had told her that he was building a nice house with a special design, but this was going to be inside Erbil, not in the hills. He said that there was no question of his ever building a summer house and that, when he had sent the above-mentioned email to Jalal for his opinion as to preferred design, the material he sent was merely a concept arising from a client’s enquiry for the possible construction of a summer house. I did not believe him.

It is instructive to consider the pleadings, in which the Wife asserted that the Husband is the legal and beneficial owner of a house on the outskirts of Erbil built by him and intended to be used as a summer house. She exhibited the said photographs of the property being constructed. To judge from the Husband’s oral evidence, one would have expected the Defence to say something along the lines that the Wife’s narrative presentation was a total contrivance or figment of her imagination. In the relevant passage, however, it was stated: “The Husband has never been the beneficial owner of any of the properties listed at B(1)(i) to (iv). The agricultural land was previously in his name under the Powers of Attorney ... the summer house [emphasis added] and the German Village house were never either registered to him or beneficially owned by him.” Thus, in the Defence the Husband was apparently acknowledging the existence of a summer house, but seeking to distance himself from its ownership. No further explanation has been proffered; and as I say, in oral evidence the existence of any such property, as I understood it, was being denied.

The existence of the property was, however, not denied in the SKYPE dialogue. When the Wife asked the Husband about the “Tallah” (Iraqi for summer house) he said he would not give her a share; but did not deny that the property existed.

The address of the summer house is unidentified and there are no Land Registry documents before me. There is, however, a wealth of evidence that such a property exists and I am confident that its beneficial ownership is held by the Husband, who did not tell me the truth about it.

The summer house is valued by Kawa at $300,000 and by Awadan at $350,000.

Typically, the Husband in his oral evidence professed uncertainty as to whether there even exists, in or around Erbil, an area called the German Village, whereas I am sure that there is and that the Husband must know that very well. It is obvious that he is fully familiar with the topography of Erbil and all aspects of its evolving development.

The Wife, Lara and Mazin all mentioned the German Village in their evidence. In the document headed “Further Known Facts” attached to Answer to Questionnaire the Wife said that there were three properties in German Village belonging to the Husband which had been bought off-plan, and that she had accompanied him when he purchased them in September 2011, the deposit being $30,000 for each property. She expanded in her narrative Statement, stating that she and the Husband had in fact gone to the German Village with her friend Niaz and Niaz’s sister; the Husband had told her that the properties were being purchased only as investments; and she had now obtained valuations of German Village properties and believed that they were worth $300,000 each. Lara says in her Statement that she was aware of investment in properties bought by the Husband in German Village, but gives no further detail. Mazin states that the Husband has told him that German Village prices would increase massively and also that, if Mazin would go out to live in Iraq, his father would transfer one of the properties into his name.

The Wife is unable, she says, to produce Land Registry documents until the properties are completed, but she and the children told the story as I have described it. In oral evidence it was not challenged; and yet the Husband told me that, as in the case of the summer house, the Wife and the children are making it up. I do not believe the Husband’s total denial, or that on the other side a totally false story has been concocted. Whether the Husband now has as many as three fully unencumbered properties in German Village worth the amounts asserted by the Wife I do not know; and, again, I am mindful of the absence of Land Registry corroboration. The extent of my uncertainty, however, is substantially the fault of the Husband, who I conclude has not been fully frank as to German Village. His Defence, as in other instances, does little but create further confusion. The Wife had claimed a declaration that the Husband is or has been the legal and beneficial owner of and/or controls “the German Village house”, although it is apparent from the text on the previous page that the word “house” is a typographical error for “houses”. In similar manner to his pleading re the summer house, the Respondent pleaded that “the German Village house [was] never either registered to him or beneficially owned by him”. This again involves an implied admission that there is an area named German Village and that there is or are a house or houses the existence of which the Husband recognises, albeit not its / their ownership. This approach is radically contrary to his oral evidence, where the Husband imputed to the Wife and Mazin total fabrication.

A German Village property is valued by Kawa at $280,000 and by Awadan at 300,000.

The Wife’s assertions re alleged ownership, past or present, of properties at Ashti City and (see below) Pank was made for the first time in her Particulars of Claim. The definition preamble referred to properties in Ashti City purchased by the Husband. In the Summary of Claim it is alleged that “the Ashti House” (which, however, was not defined) had been sold by the Husband during 2012, it being believed (but the ground of belief was not stated) that he had paid $250,000 for the property. Then, under the heading “The [Wife’s] Case” it is said that in 2011 the Husband and Mazin visited the estate agents who were selling the Ashti properties; the Husband had purchased a number of them; and it is unknown whether he still holds them or has sold them, as to which he is put to strict proof. Under the closing “Claim” heading the relief sought as to Ashti is a declaration or finding that the Husband is the legal and/or beneficial owner of “the Ashti house”, which is puzzling because according to the previous narrative the house had been sold in 2012. In short, the Wife’s case as pleaded is in disarray.

In his Defence the Husband says that the Ashti house had never been owned or bought by him and that he denies owning or having purchased any properties at Ashti. In her September 2013 Statement the Wife sought to explain. She stated a recollection that the Husband bought four properties in Ashti although she has only obtained proof in respect of one property, as to which she remembers that on its sale the Husband showed to Mazin and her the cash received. Mazin supported this case in his Statement, saying that he had been with the Husband to an estate agent where he made a payment for one property in Ashti, although he recalled that he had in fact purchased four properties in Ashti in all. He recalled an occasion when the Husband sold a small plot of land in Ashti, on which occasion he pulled the cash proceeds out of the bag and they covered his, Mazin’s, bed. The Husband said that a particular photograph scrutinised in cross-examination depicting a wealth of cash was in fact to do with a loan of cash from Mawlan to the Wife for the purchase of a property. As to some of the photos contained in the documentation, including this one, I have found myself unable make a reliable finding.

The fact of some element(s) of purchase and sale of Ashti properties was not challenged on behalf of the Husband in cross-examination, which would have given the Wife and Mazin the opportunity to flesh out their evidence and give further explanation. Further, the Husband failed to confront the fact that there is documentation obtained by the Wife in the form of receipts issued by the development company which suggests that he had at least gone as far as to pay the first instalment or a deposit on two Ashti properties, respectively numbered 1036 and 1037. On the other hand, the Wife’s presentation embodied in the Particulars of Claim and written Statements in combination is more woolly that in respect of many other properties. That said, the evidence is sufficient to found the conclusion that Husband did enter into one or more transactions involving Ashti property, but I shall need to be duly cautious as to their scope and overall value.

Kawa and Awadan were instructed to value, for some reason, 1035 and 1036, not 1036 and 1037 (unless there has been a typographical error). That said Kawa put a figure of $415,000, and Awadan $420,000, on each Ashti property

In her Particulars of Claim the Wife makes reference to what are defined as “the Pank properties”, being properties (number said to be unknown) in an area called Pank in Erbil. Exhibited is a copy Sale / Purchase Contract dated 12^th September 2010 between the Pank company, described as the first party and seller, and the second party and buyer, the Husband. It relates to one property at a price of 147,500,000 Dinar, a little in excess of $110,000. In her Summary of Claim and her Case she said that the properties were bought by the Husband in 2011 (presumably an error at least as to the property mentioned above), and later sold by him. She put the Husband to strict proof of the whereabouts of Pank proceeds of sale and sought a declaration/finding that the Husband had received and was the owner of such proceeds.

In her September 2013 Statement she expanded by saying that her recollection was that the Husband had bought three properties in Pank, although she had only been able to obtain documentation in respect of one.

She had not previously mentioned Pank properties. No enquiry had been raised by her on this subject in questionnaire. It should have been (a remark which may apply to Ashti too, if the Wife knew of them in 2011, which is not clear). As to her earlier (November 2011 and July 2012) Statements it is fair to say that they were specifically targeted at the freezing of UK assets; and omission to mention Pank (or Ashti) in the absence, then, of any supporting documentation is not surprising. In any event, her failure to mention the Pank properties previously was not put to her in cross-examination.

Lara and Mazin support the Wife’s case, Lara including Pank in her itemisation of property which to her knowledge the Husband owned and Mazin saying that he was shown three properties at Pank which the Husband had purchased off-plan and which were being built.

In his Defence the Husband takes the allegation shortly. He takes issue with the illegibility of some documents and simply issues a denial that he owns or has purchased any properties at Pank. Inferentially, here and in oral evidence, he denies the authenticity of the copy Contract of Sale and impliedly alleges forgery. The Husband’s oral evidence on the subject of Pank was exiguous, Mr Shaw dealing with it cursorily in the final session when under great time pressure. The Husband said that the Wife and Mazin were completely wrong.

A Pank property is valued by Kawa at $280,000 and by Awadan at 320,000.

To take German Village, Ashti and Pank collectively at this stage, the documentation which has surfaced, which was dealt with by the Husband unconvincingly, together with the evidence of the Wife and Mazin are sufficient to persuade me of the probability that the Husband has had commercial dealings in property at all three locations, but I feel the need, in the absence of the type of evidence available in respect of various other properties, to be cautious. I am not minded to make a finding which attributes to the Husband present or past ownership of as many as 3 German Village, 4 Ashti and 3 Pank properties. I do, however, find it probable that the Husband has conducted property transactions which as to the three locations in combination have a value in 7 figures in dollars. How much is impossible to say without the assistance from the Husband which he declines to give.

In her July 2012 Statement the Wife stated her belief that the Husband owned land in Iraq worth $1 million. She says and I accept that she meant a plot of agricultural land at Sairawa. It was partly in answer to this assertion that the Husband made the statement already referred to about land being placed in his name to be held for his siblings and himself beneficially. In reply the Wife referred in detail to certain land which is at Hasarok and added that the Husband also owned agricultural land managed by his brother and harvested twice a year, its area being 68 dunams (a dunam is 2,500 square metres). She said that he bought the land c. 5 years previously and that each dunam was worth $15,000: thus the total of c. $1 million. She had briefly raised the 68 dunams of agricultural land with the Husband in the SKYPE dialogue.

It is notable that in his first draft presentation for the purpose of re-mortgage the Husband referred to assets in Iraq as follows: “3.600.000 in properties and agricultural land.” In later presentations the reference to the land was for some reason omitted. In February 2013, in supporting documentation to her Answer to Questionnaire, the Wife produced a Land Registry document suggesting that the land at Sairawa had been purchased in May 2006 and that it was held in the name of the Husband. At one point the Husband suggested that this document was false; but it is a Land Registry document. In her Particulars of Claim the Wife pleaded the 2006 purchase and identified the area in question as 71 dunams (which per official documentation it is). She says that the land is used for agricultural purposes and provides a profit for the Husband, as to which she puts him to proof, but that she is aware that it will be very valuable in the near future if planning permission is allowed for building construction, which is probable. She says that the Husband has spoken of the potential of his land if planning permission should be granted. She seeks a declaration or finding from the Court that the Husband is beneficial owner of Sairawa.

Her September 2013 Statement repeats some of this detail and mentions the valuation by Awadan of the land obtained at her behest in the sum of $2,130,000 in February 2013. The land is amongst the items of real property of which Lara says that she knows of the Husband’s ownership from what he has told her and shown her. Mazin says that in 2010 the Husband took him to the plot of land and told him that he owned it. According to Mazin, the Husband said that once it was brought within the master plan of Erbil it would be worth millions; and that he had had an offer of $1,500,000, but wanted to keep it until it was re-zoned. No challenge was made about this evidence in cross-examination, which, given my general preference for Mazin’s evidence over that of his father, I have no reason to disbelieve, at least as to its broad substance.

In his Defence the Husband pleads that Sairawa was previously in his name pursuant to the Powers of Attorney, and that the land was purchased by his brother Mawlan whilst he, the Husband, was living in the UK. It is stated that the Husband has never been to this plot of land and that it is jointly held by up to 75 farmers, the share being extremely small. The interest had been, it is said, transferred back to Mawlan.

In oral evidence, as happened frequently, the Husband gave markedly contradictory, and therefore confusing and unhelpful, evidence. His assertion was that the land had never been in his name at all.

On that evidence I do not know whether the land is currently in the Husband’s or in Mawlan’s name. But my overall conclusion mirrors in its effect that articulated re the hotel and Gulan Street: the beneficial interest in the land resides with the Husband.

In her statement of 8^th August 2012 the Wife asserted that the Husband used some of her money towards the purchase of the Hasarok property. Some of the land was given, she said, by the Husband to his father and his siblings. It is where they now live because H had houses built on them. There is also a mosque on the development for his family. In her statement Lara said that she was aware that the Husband had bought properties for his siblings, who were poor. She described in oral evidence how her cousins told her how grateful they were to her father for his help. H would boast about the new properties that he had provided for his siblings when he and Lara drove past them.

Land Registry documents were exhibited to the Wife’s Answer to Questionnaire in February 2013. There are 13 office copy entries from the Land Registry showing the parcels which the Husband retained from the original 28 plots allocated in Hasarok. There is a document confirming the transfer from the Husband to Mawlan on 30^th September 2012 of what has been termed the Hasarok real estate. (i.e. one of the plots) and another document showing that the Husband has transferred his one-half share of a house owned jointly with his mother (on one of the other plots) to Mawlan on 30^th December 2012. These properties are valued by Kawa at $130,000 and $140,000 respectively and by Awadan at $150,000 and $180,000.

Further, a letter from the Kurdistan Regional Government (UK representative) confirms the transfers of the properties in Hasarok that the Husband sold. There were 11 sales / transfers dating between 2005 and 2011. In her Particulars of Claim these numbers are repeated and the Husband is put to proof as to where the monies went. It is also alleged that the two properties he retained and then transferred to Mawlan are the properties described as (i) the Hasarok real estate and (ii) the house owned jointly with his mother, and that these two transfers were shams: thus the beneficial interest in the properties remains with the Husband.

In his Defence the Husband alleges that the two transfers to Mawlan dated 30^th September 2012 of the Hasarok real estate and the house owned jointly with Mother were genuine transactions since they reflected Mawlan's continuing beneficial interest in both properties. (As pointed out by Mr Shaw, this, and the same applies to many analogous situations, confirms the authenticity of the Land Registry documents produced by the Wife).

The remainder of the Hasarok land, H contends, went into his name under the powers of attorney to make them easier to deal with. It is said that all the Hasarok lands were previously in Rokan's name. This had never been asserted by him prior his Defence. The Land Registry documents produced by the Husband in support of this contention actually show the final name Ahmad rather than Rokan's name of Hamad, a point mentioned by Mazin but not further investigated, thus leaving it suspended in the air.

Mr Shaw contends, and I concur, that it is likely that the transfers to Mawlan after the re-initiation of these proceedings mask the fact the beneficial interest in the Hasarok real estate and in the house owned jointly with the mother remains with the Husband: Mawlan is thus a nominee.

The remaining 11 sales / transfers of Hasarok land by H were such that he received the sale proceeds, says the Wife. This may be so, but it is money long gone in many instances, and of course I have no way on knowing its destination. I am conscious too that such assets may well have been recycled into the acquisition of other including current assets. This is as good a place as any to observe that the exact process and dynamics of the acquisition by the Husband of the numerous property interests which are addressed, as best I can achieve it, in this judgment are impossible for me satisfactorily to identify. To put it another way, the Husband himself – and this is entirely his doing – has simply not given the court the information to enable it to know whether and to what extent, for example

There are three other Iraqi properties as to which the Wife has produced documents which seem prima facie to suggest a past and/or present interest or involvement of the Husband. They are situated at Kavar City, Hiran City and Brach, the last mentioned being, apparently, agricultural land. The document as to Kavar City seems to be a Contract dated 29^th March 2010 for the Sale to the Husband of property at Kelekin, which is at Kavar, the purchase price being $107,000. The Husband said that the document must be a forgery, as in the case of the Ashti and Pank properties. He sought to blame Mazin. There are then documents which suggest that on 31^st July 2011 a property at Hiran City was sold by a company named Green Land to the Husband for a total to be paid in instalments of 62,000,000 Iraqi Dinar (approaching $50,000). On 31^st July, according to a document headed “Deposit Form”, the Husband paid 4,500,000 Dinars presumably by way of deposit. Thirdly, there is a copy Contract of Sale which suggests that, also on 31^st July 2011, the Husband agreed to purchase some agricultural land at Brach together with a well for a total price of $268,650.

To repeat, the Husband says the documents are forgeries and levels a straight allegation of corruption against Mazin – an allegation which, however, was not put to Mazin. In his Defence he pleads a blanket denial that he owns the properties alleged. I reject the accusation of forgery. Some other explanation from the Husband is due, but has not been forthcoming.

The Kavar City property is valued by Kawa at $320,000 and by Awadan at $ 250,000: Hiran City at $235,000 and $250,000 respectively; and Brach by Awadan at $475,000.

I conclude that the Husband’s blanket denial as to these properties in unconvincing and he has been involved in transactions concerning all or some of them, the exact current value of which is impossible to gauge, although I shall have to arrive at some, albeit conservative, estimate.

There is, scattered amongst the documents, various material to do with property in an area named Najaf, the ownership of which the Husband seeks to impute to the Wife; but as the evidence came to rest at the conclusion of the trial it was rough-edged and to my mind inconclusive. Once again, the best prism through which to analyse the evidence is a summary, in strict chronological sequence, of its evolution:-

This was the convoluted background to the oral evidence on the subject, which was confused and unsatisfactory, a fortiori in circumstances where neither party has produced a single document in support of his or her case. The Husband told me that, as a matter of general practice, it is not possible for any citizen in Iraq to obtain Land Registry documentation save only the owner(s) of the given property in respect of which information is required. I find this difficult to believe. Not only does openness and accessibility accord with the seemingly obvious rationale behind any Land Registry, but the fact is that the Wife has managed to obtain extensive Land Registry documents to do with properties which have stood in the Husband’s name. Further, the Husband, who must on his case know the precise location of the property or properties in Najaf which interest him, failed, in particular at the February 2013 hearing, to seek any direction as to their evaluation in the terms, for example, of the direction obtained by the Wife the detail of which is at paragraph 50 above.

Equally, whereas the Wife was adamant that the Husband’s case on this subject has no fundamental merit, she could certainly have herself obtained a Land Registry document establishing the sale (she says it was in 2012) of the Najaf house. As to a large parcel of Najaf land, the Husband says that he was approached by the Wife’s family to produce some planning material in respect of 700 houses to be built on it and that he travelled to the location presumably for the purpose of inspection and investigation. (This, manifestly, is contrary to his statement just mentioned to the effect that as a Kurd he cannot go to Southern Iraq).

The Wife says that certain land did pass to the next generation from her father, but that in her family and culture such land would go to the boys in the family, not the girls. Again, if, first, there is substantial land owned by other family members, but she has no interest in it, it should have been possible for her to produce documentation to establish that fact.

In the final analysis the Husband has fallen short of persuading me that the Wife has a current and continuing interest in property in Najaf; but I am uneasy on the subject in the absence of the documentation referred to and would not wish to rule out the possibility, thus to create an issue estoppel and prevent the Husband from raising the point in later proceedings (for example, to do with periodical payments – see below), if he is able to generate sufficiently persuasive evidence.

I adopt by way of introduction what I have already said on this subject. The Husband not having availed himself of the opportunity to obtain a court direction, the Wife’s valuations obtained in February 2013 were not challenged over a period of many months. At the last minute, however, by way of exhibit to his September 2013 Statement the Husband produced three hand-written letters which purport to emanate from the valuers used by the Wife.

However, I concur with Mr Shaw that the format and quality of the documents is such that I must treat them with very great caution, the more so in circumstances where there has been no oral evidence from the valuers concerned. In the case of Kawa, there is a translation of a hand-written document with no letterhead or other formality, the thrust of which is that Mazin came to Kawa’s office and spun a yarn about the need to mortgage property to finance his father’s medical treatment; and that “just like humanitarian aid” the valuer helped Mazin (the apparent inference being that he over-valued the property). He goes on to state that the owner of the property is a different person whose name is Molan, but without revealing how (if it be true) he knows that.

In the case of Awadan, there is an English translation of a document, apparently written by a lawyer not an estate agent, in respect of which the Husband sought to explain in oral evidence that the author was not the owner of the company any more, because he had sold it. Again, the original document in the (presumably) Kurdish language which has been translated is hand-written and has no letterheading. The document says that the valuation document of 18^th August was “not real or trusted [and] was prepared without knowledge of our company ….”

In neither case, significantly, are any alternative valuations of the properties in question ventured. Nor, to repeat, has the Husband put forward any competing figures, still less professional valuations.

This material is produced extremely late by the Husband, with slender opportunity for the Wife properly to research and test it. What, however, I am prepared to say in the Husband’s favour is that, the recent documents apart, the valuations collated by the Wife, standing alone, are hardly impressive. There is no evidence of transactions involving comparable property and the observation that that is apparently the way they do it in Iraq affords no comfort. In my arithmetical calculations I propose to make allowance for the possibility that the true value of the Iraqi properties valued may be materially below the figures postulated by the valuers.

In his Form E the Husband stated that the company was an architect’s firm established by him in 2010, the shareholding being held as to 25% by him and 75% by Rokan. In his Answer to Questionnaire that percentage shareholding was confirmed, “as agreed with [his] brother”, there being, he said, no documentary evidence of it.

The Wife, however, was able to produce with her Answer to Questionnaire a document dated 24^th January 2010 in which approval was expressed by the Kurdistan Region General Directorate of Companies Registration of (i) the discharge of all the shares of the original joint shareholder, Mr Ollerhead and (ii) the registration of his shares in such manner as resulted thereafter in the company’s shares being held as to 60% by the Husband and 40% by Rokan. (The one proposition as to which there is consensus is that it is necessary in Iraq for every company to have at least 2 shareholders - as, according to the Wife, the Husband told her when explaining that Rokan had a shareholding).

The Wife having claimed in her Particulars of Claim that the Husband’s beneficial interest in the company is 100%, the Husband in his Defence sought to rely upon the Family Meeting Minutes to support the proposition, there advanced for the first time, that the shareholding is in fact owned as to 25% by him, 40% by Rokan and 35% by Mawlan.

Mazin told me that, on the ground, Mawlan and Rokan virtually never attended at Gulan Street and had nothing to do with the operation of Pristine during the many months when he was in Iraq; and I believe him, a fortiori given that the Husband gave no detailed evidence to assert or explain any such involvement. What he did say, in justification of his brother’s (later said to be brothers’) shareholdings, was that at the inception of the business the brothers had put up $10,000 to finance capital expenditure, particularly on furnishings. This was the first time that any such proposition had been mentioned (it is not mentioned in the Family Minutes); and it is notable that, when in questionnaire the Wife asked for details of the qualifications and architectural experience of Rokan (impliedly enquiring how his 75% shareholding could possibly be justified), the Husband replied “.... he is the main shareholder in the company and, having lived in Erbil throughout his life, he has a number of contacts which it is hoped will give rise to work in the future”. There was no evidence at trial of any such contacts.

From one important angle the apportionment of the Pristine shares has no relevance: it is not suggested that the company has or has had any reckonable capital worth. What does emerge from an examination of the evidence, however, is that yet again the Husband’s evidence paints an improbable picture and is internally inconsistent. He went to Iraq to exploit what he hoped and came to perceive were rich business opportunities. Eventually, he incorporated Pristine and used it as the vehicle, or certainly the principal vehicle, for his commercial enterprise. In the world of property development, construction and architecture he had considerable experience. He had a team around him consisting of his General Manager, Parvez, two architects, a structural engineer and two secretaries. Nothing that he has said or that emerges from the wealth of documentation persuades me of the likelihood that he would ever structure his business in such a way that he was in reality a 25% beneficial shareholder. I am confident that as between himself and his brothers he has been regarded as the sole, or certainly a strongly majority, shareholder.

The starting-point has to be what, as time has passed, the Husband himself has said about his income, which effectively means, in the current context, the profitability (or not) of his business activities in Iraq. In chronological sequence it goes like this:-

The significant inconsistency between this oral evidence and what had gone before in writing is only too obvious. It goes to the very heart of the Husband’s credibility.

Mazin produced a significant number of documents bearing upon the Husband’s professional activities. Some consisted of promotional literature, in which there was certainly some element of puff. For example, the impression given is that Pristine had a substantial base, and therefore work, in England, the United States and Romania. That is hardly the position, even if it be true that the Husband himself has continuing connection and much experience in the UK, there is a man named Liviu in the United States with whom he has a strong professional association and he also has contacts perhaps emanating from the old days in Romania. Other documentation produced by Mazin is of a wide variety, but typically consists of emails between the Husband / his representative and potential, the Wife contends sometimes actual, clients with whom a contractual relationship might, or did, develop. In some instances the documents were addressed in detail in oral evidence, in others not so. In alphabetical order the negotiations / potential deals which Mr Shaw invites me to conclude came to fruition may be described under the following heads:

I do not propose to descend into great detail, project by project, for it is unnecessary to do so. On the evidence, of those cited the projects as to which there is perhaps the greatest likelihood that some fruition was achieved are probably:

The point is, however, that it is plain from all the evidential untruths and inconsistencies for which the Husband is responsible that his word is not to be trusted in this important area of his actual and potential earning power. He was carefully asked whether he wished to alter anything in his Defence as being inaccurate, to which he replied that he did not. In that document he talked specifically of plural contracts with multi-national companies. This cannot be an error: yet he declines to identify them (save as to OMV). What, where and with whom has he entered into such contracts? The information is nowhere to be seen.

I deem the Husband’s presentation as to his total lack of work with the exception only of the OMV contract, the unprofitability of Pristine and his general lack of success as extremely improbable. I am confident that by 2010 – 2011 he was involved in his own right and/or through Pristine in some significant number of income-producing professional engagements, as I am also that over a period of several years he was involved in a significant number of property transactions. It is impossible for me to know the precise level of the Husband’s income (which he stated to SCB was up to $500,000 per annum). Nor do I know whether, with an eye to these proceedings, the Husband has reduced his commercial activity. My ignorance is once more, to state the obvious, the Husband’s doing. I conclude on the evidence that he has an earning capacity of some hundreds of thousand dollars p.a. Doing the best I can, and allowing for the possibility of past exaggeration, I put it at not less than $300,000. It could certainly be more, up to £500,000.

That it is impossible for me to identify with precision or confidence the number of properties or professional assignment in which the Husband has been involved in Iraq is the direct consequence of his determination to conceal his true financial position from the wife and, therefore, from the court, the entity which has the crucial task of assessing the financial resources, thus to enable it to make an award which is fair to both parties.

As Mostyn J. said in NG v SG (Appeal: Non-Disclosure) [2012] 1 FLR 1211

“[1]   The law of financial remedies following divorce has many commandments but the greatest of these is the absolute bounden duty imposed on the parties to give, not merely to each other, but, first and foremost to the court, full frank and clear disclosure of their present and likely future financial resources. Non-disclosure is a bane which strikes at the very integrity of the adjudicative process. Without full disclosure the court cannot render a true certain and just verdict. Indeed, Lord Brandon has stated that without it the court cannot lawfully exercise its powers (see Jenkins v Livesey (Formerly Jenkins) [1985] AC 424, [1985] 2 WLR 47, [1985] FLR 813). It is thrown back on inference and guess-work within an exercise which inevitably costs a fortune and which may well result in an unjust result to one or other party.”

The Judge then reviewed two of the three leading cases of the modern era dealing with non-disclosure and the principles which should inform the court’s ability and willingness, respectively, to assess as best it can the financial resources and to draw inferences in such cases. The cases reviewed were F v F [1994] 1 FLR 359 and Al-Khatib v Masry [2002] 1 FLR 1053, decisions, respectively, of Thorpe J. and Munby J., as they then were. Reference was also made to another decision of Munby J. Ben Hashem v Al-Shayif [2009] 1 FLR 115.

Paragraphs (4) to (16) of Mostyn J.’s judgment, with which I concur and which I shall follow, are directly relevant to the instant case. I quote the following extract:-

The court will then look to the scale of business activities and at lifestyle.

In the instant case there are in the case of some Iraqi properties sufficient evidential indicia to invite a direct finding of beneficial interest to be made, whilst in other instances the fact of the inconsistencies in the Husband’s evidence and/or the improbability of the propositions for which he contends and/or my general impression that he lacked credibility also plays its part in propelling me to the conclusion that he has something to hide and thus to draw a general inference that there are probably additional resources, even if they are impossible to quantify.

I conclude that the Husband did not, when depicting his financial circumstances in Iraq, tell a long series of black lies to his family in the manner and for the reasons which he describes. Nor did he totally mislead SCB about his Iraqi assets and income. As to assets, on his own case SCB were not exercised about Iraqi assets at all; but, that apart, he would have been well aware of the risk that it might be searchingly checked by SCB as part of the due diligence exercise the prospect of which he knew about. The same applies to income, as to which I regard it as improbable in the extreme that the Husband would brazenly state an income of $500,000 per annum when in truth he had no income whatsoever. Exaggeration is one thing, and a possibility in this instance, but pure myth another. Further, as I have indicated, very little weight can be given to the evidence of Mawlan and Rokan. The story re numerous property transactions being conducted in the Husband’s name for the reasons claimed is unconvincing.

In my judgment the hotel site, Gulan Street, the land at Sairawa and the two Hasarok properties, all of which were once in the Husband’s name but have apparently been transferred to Mawlan, must be regarded as beneficially owned by the Husband: also the summer house and the relatively recent proceeds of sale of 256, Italian Village. There is ample positive evidence to justify that overall conclusion; and, as to the Husband’s evidence it is too beset by both inconsistency and improbability for the prima facie assumption referred to by Mostyn J in Fisher Meredith to be displaced. The combined (where applicable, lower i.e. Kawa) values of the retained properties is c.$5,125,000, which equates roughly to £3,175,000.

As I have said, I am uneasy about any valuation which does not descend to evidence of comparable transactions and I think it prudent to allow for a reduction of up to 20% to allow for imperfection of evaluation technique.

As to German Village, Ashti, Pank, Kavar City, Hiran City and Brach, in each case the Wife has produced material which merits serious address and explanation by the Husband which has not been forthcoming. If it were correct to proceed upon the basis that the Husband acquired and currently holds three German Village, four Ashti and three Pank properties, and the properties at Kavar, Hiran and Brach in addition, one would be talking of a gross aggregate value exceeding $4m. I eschew any such calculation on the evidence as I have described it; but to conclude that collectively the current worth of these transactions to the Husband is at any rate within the region of $1,000,000- $1,500,000 is in my view justified.

The standard of living enjoyed by the family will have grown commensurately with the Husband’s increasing professional success. The stage was reached when, per the Wife’s Form E, it was “very high”. She refers to diverse luxury holidays in 5 star hotels, frequent meals at some of London’s top restaurants, luxury cars and expensive clothes. She mentions that during much of the marriage the family had a housekeeper. In the Husband’s Form E he avoids any comments about standard of living, but in the relevant box emphasises that the family lived well beyond its means. His counsel, however, in closing submissions did describe the standard of living as high.

As to needs, the evidence, whether in writing or oral, has been sparse. Plainly, both parties need a suitable home. A consequence of this judgment is an inevitable finding that for the Husband that need can be met by virtue of Iraqi resources. As to the Wife, it seems to me an inevitability that, whether or not she achieves ultimate retention of all UK assets, the properties at Coombe End, Knightsbridge Court, St, Mary’s and Berkhamsted Avenue (and probably The Downs too) will have to be sold without significant delay. When I put this proposition to Mr Shaw during his closing submissions, he simply responded that the Wife would very much like to maintain her residence in Coombe End. That may be so; but I am sure that the aspiration is unrealistic, given the size of the SCB mortgage and the express recognition by the Wife through Mr Shaw that the Wife can in practice expect to achieve no recourse to Iraqi financial resources. So, the Wife will have to move to alternative accommodation; but at what cost? It will need to be sufficient to house herself and, for a few years, Lara. (I have no doubt that she will want to provide the facility of a home for Alan too at least for the short-term future, but this is not strictly her obligation). Even when Alan and Lara have left home, she will have the need for at least three-bedroomed accommodation with, therefore, adequate guest facilities.

Very unusually, there is no evidence as to the reasonable cost of such accommodation, with one exception only, which arises from a question asked by Mr Shaw towards the end of the Husband’s cross-examination in response to which the Husband ventured the view that the Wife could re-house herself for between £300,000 and £400,000. When asked about her need to be maintained in terms of income, the Husband repeated an observation he had made in his narrative statement, which speaks loudly of his overall attitude towards the Wife and his obligations towards her. He said in that statement “She has an earning capacity herself and three adult children with university educations to support her [emphasis added]”.

I am left to bring my own assessment to bear. My view is that (finances permitting, it is needless to say) the sum for which the Wife could re-house herself satisfactorily in all the circumstances of the case would be between £800,000 and £900,000 (inclusive of stamp duty and associated costs). Plainly, she has a discretion, and there will be inter-play between the sum she pays and the income she can receive from free capital.

As to projected income requirement, as is so often the case where a reduction in lifestyle is a necessary function of separation and divorce, both parties have advanced figures which are unlikely to be realistic. The Wife’s long-term “budget” as opposed to interim budget is said to be £9,450 per month, stated to be for herself but in reality including some expenditure on behalf of the children: for example, she refers to expenses in relation to 5 motor vehicles. Additionally, many of the figures are premised upon continuing residence in Coombe End, which is a house of very substantial size and therefore expensive to maintain, and a figure of £18,000 p.a. is included for “domestic help” which for the long-term future looks excessive to requirements.

The schedule contains arithmetical error. It omits any figure for food and housekeeping (said in her maintenance pending suit presentation to be £900 per month). The individual figures cited do not add up to £9,450, but something like £2,000 less (to which would need to be added the food etc figure).

On the other hand, the Wife has omitted a number of noticeable items, including for example property and contents insurance, internal and external repairs, redecoration and renewals.

It is all very rough-edged. Doing the best I can, the overall personal income requirement to which I think is reasonable for the Wife to aspire is £70,000 per annum. Notably, in Answer to Questionnaire the Husband stated that, as to his own projected income needs for the future, they consisted of “personal £50,000; holidays and weekend breaks £15,000; and car running costs £12,500”: a total of £77,500 per annum. It is perhaps unsurprising in those circumstances that the Wife’s presentation was not subjected to criticism in cross-examination. Nor did either counsel address the detail at any stage.

As to obligations, the application for periodical payments for Lara will, for reasons of which the parties’ representatives are aware, be determined at the supplemental hearing referred to in paragraph 240 below. It remains to be seen whether the Husband complies with whatever order is made. If he does not, the Wife will probably feel that she must dip into her financial resources to assist Lara. That is a factor I take into account.

Nothing need to be added. Equality of contribution is agreed.

The question whether the Husband has actually remarried, or as he seemed to suggest in oral evidence is in some way merely committed by betrothal to Shahlia, may have some relevance in the area of credibility, but does not link directly to any other consideration which I must take into account. I reject summarily the Wife’s contention that, on the assumption that the Husband has in fact remarried and did so without her permission, and further that that would be contrary to Iraqi law, his action in doing so is conduct which it would be inequitable to disregard and should sound in the computation of financial award. Remarriage in whatever circumstances does not qualify as such conduct any more than the Wife’s behaviour in pursuing Iraqi legal proceedings with a view to achieving the Husband’s incarceration. Making due allowance for cultural considerations arising from the parties’ ethnic origin and religious convictions, I nevertheless find unattractive, but no worse than that, both the Husband’s failure to give notice of intended remarriage and the Wife’s determination to have him punished so dramatically.

For what it is worth, I think it likely the Husband has gone through some sort of ceremony of remarriage (whether civil or religious I do not know), and certainly something more than the mere asking of Shahlia’s hand, as he suggested in oral evidence. His explanation for Gaylan’s wife telephoning the Wife on 26^th June 2012 and informing her of the Husband’s imminent remarriage was that its sole objective was to make the Wife jealous: her jealousy, he suggested, was the one thing that was calculated to persuade her to come over to Iraq. I find that explanation wholly unconvincing.

Moreover the Husband’s evidence on the point is muddled, inconsistent and sometimes plainly false. I have mentioned how he effectively denied any relationship at all with Shahlia in Answer to Questionnaire, his later explanation being that the mere admission by him of such a relationship might prejudice her future prospects and standing in society in the future, which, again, was unpersuasive.

The fact is that the Husband admitted to the Wife in the SKYPE conversations that he had remarried. His suggestion that he did not expect the Wife to tell the children is extraordinary. Mazin says that his father admitted remarriage to him. He made the same admission to Othman; and his explanations for doing so have varied, as I have already described.

Other suggestions of non-litigation misconduct are without merit, including the add-back argument loosely advanced by the Husband (paragraph 28 above).

On the first day of the trial Miss Dines applied for an adjournment on several grounds. I refused the application and said that I would briefly state my reasons in final judgment. At the same time I observed that, whilst in no way encouraging it, I did not rule out the possibility of a further application during the course of the hearing then projected to be of c.10 days’ duration; but on no account was I prepared to abandon the 2 week “slot”, which had been in all the relevant diaries for many months and would have had costs consequences which could be termed disastrous. In the event no application was made on behalf of the Husband during the period between 23^rd September and 8^th October, on which latter day the oral evidence was concluded. On 25^th October, however, the day allocated to the hearing of closing submissions, the application for adjournment was renewed.

Put briefly, the grounds cited on 23^rd September were

My opinion of the parties’ credibility and the general reliability of their evidential presentation in the key areas of the case has substantially been presaged by what I have said already in judgment. However, a closing overview is appropriate; and I also need to expand my comment on the reliability of Lara’s and Mazin’s evidence.

The success of the Husband’s case for a substantial share of the UK assets rests, to draw the threads together, upon his ability to establish at least most, even if not all, of the following propositions, presented in no particular order:-

It is going too far to say that the Husband must succeed in establishing every single one of these facts or propositions; but absent his ability to prove most of them his case lacks rationale or cohesion. I have to record my conclusion that the Husband has failed to establish any of the propositions mentioned. Moreover, in general terms I much preferred the evidence of the Wife, Lara and Mazin, both individually and collectively, to that of the Husband. The Husband was an unimpressive witness by any standards, both in demeanour and in the substance of what he had to say. Allowance must certainly be made for the fact that his English, whilst adequate, is far from perfect and for the genuine need from time to time for a question or line of questioning to be repeated, explained or expanded. But I was satisfied that the Husband for the most part fully understood the theme and the detail of Mr Shaw’s questions in cross-examination and that all too often he demonstrated not so much an inability as an unwillingness to give a straight answer to a straight question which was often explicable only by reference to the unreliability of the case he had been or was now advancing. There were many inconsistencies and self-contradictions in his oral evidence, only relatively few of which are referred to in this judgment. Mr Shaw produced several pages of examples in his written closing argument. I concur with the vast majority of them. Miss Dines, meanwhile, (through no fault of her own) challenged virtually none of them.

The Wife I found to be much more reliable when giving evidence, even if I do not suppose that she had a monopoly of the truth. Certainly, she was capable at times of exaggeration, as I have mentioned, and I take account of that. Miss Dines did her best on her instructions to demonstrate that the Wife has, as she put it, an inclination to massage the facts when it suits her. So, on instructions, she spent a great deal of time examining with the Wife the content and purpose of a reference which a Dr Zainy had written many years ago upon the strength of which she applied either for some sort of traineeship or as she says work experience in a hospital in London. Her (in the scheme of things limited) financial transactions with Mazin came under scrutiny. And there were many other examples. To Mazin too, many similar suggestions were made designed to impugn his credibility, for example to do with a representation as to the precise usage of Lara’s car made for the purpose of its insurance; his time spent and not spent living at Coombe End; a property owned by him in Avenue Road, Kingston; his mortgage arrangements on that property; and so on. Years ago Mazin was in trouble for possession of some sort of stun gun. The Husband was exercised by this irrelevant fact and tried unsuccessfully to deploy it to his advantage.

I add only that, generally stated, the arrows missed their target and many could be regarded, in any event, as aimed its outer circle.

I found both Lara and Mazin to be good witnesses, essentially truthful and reliable even if not immune from mistake or error of recollection. Their mode of giving evidence was, in each case, measured and straightforward; and there were times when each was willing where appropriate to concede a point or recognise that, on a given matter, there was limitation to what they were saying. Crucially, I formed the strong impression that the reason why they had stepped off the fence to support their mother was their sense of indignation, and of threatened injustice, arising most particularly from the Husband’s denial that he has any significant financial resources in Iraq. I acquit them of any improper motive, including in particular financial gain for themselves, as was put to them by Miss Dines in cross-examination on instructions. For completeness, I add that I believed Mazin to the effect that he never intended to threaten his father (save with the prospect / fact of these proceedings).

There has been often spirited debate on many points additional to those already mentioned. If I have not referred to them, it is because this is a case where many a hare has been chased and, to mix metaphors, many a path trodden only to find that it was a dead end. This is a judgment which is perhaps 25-30% longer than what might be regarded as the norm for a 13 day case of this type. That is a matter of regret, but there are good reasons, to do with certain exceptional features and the plethora of detail. Even now there are many areas of evidence and dispute to which no reference is made in this judgment, but I confirm for avoidance of doubt that I have taken account of all the evidence and argument and the omission of material arises from my conclusion that it is unhelpful and/or irrelevant to my decision.

I mention two further matters, although, as has happened too frequently, the substance and quality of the available evidence in these areas is not such as readily to allow precision. The first relates to liabilities asserted by the Husband, not those which are yet to be paid and therefore still owing, but those which have already been discharged in particular from the SCB re-mortgage monies. The second is to do with the arrogation to himself by the Husband of the net balance of rental receipts received from the properties at Knightsbridge Court, St Mary’s Road and Berkhamsted Avenue since March 2012. In each case one immediately has a strong sense of the bird having flown, in that any funds properly regarded as misappropriated by the Husband will by now either have been expended by him, whether in the UK or Iraq, or possibly are now held in Iraq. In the circumstances I shall deal with these points briefly.

The so-called completion date re the SCB mortgage was 30^th March 2012, when the Husband and the Wife travelled with Mazin to the relevant solicitors, Portners Jask, although on arrival Mazin remained in the car. Both Husband and Wife signed what was termed a Financial Statement, the bottom line of which was that, the SCB re-mortgage monies received and all costs, liabilities and disbursements discharged, the balance available to the clients was £370,390.75. The Wife says that she simply did not read the Statement in its detail and, as ever, signed it “blind”, a proposition upon which, predictably, she was robustly cross-examined. The three discharged liabilities which the Wife has challenged are “Laith loan repayment £115,000; Jalal loan repayment £112,000; and Sheik Tahir and Gaylan £175,000”. The Laith loan repayment is said by the Husband to have been in respect of works effected to 23 St Mary’s Road and, whereas as ever there is a lack of corroborative documentation, in this particular instance I am not prepared to conclude that the indebtedness is invented: it does have some ring of truth about it.

The other two debts are in my view highly suspicious, because the monies purport in each case to have been paid to Gaylan, as to which I have expressed my conclusions at length. It is as before to be expected that the Husband relies very heavily on the fact of the Wife’s signature on the completion statement; but I do not believe that she had by any means mastered its detail or, for example, that she would have given her blessing to the payment via Sheikh Tahir (who was a mere conduit pipe) to Gaylan in Iraq via Turkey.

As to the rental monies received since the above-mentioned completion date. I am sure that the Husband has taken a liberty, although its precise extent has not been nailed. There was, I accept from the Wife, a clear understanding that those rental monies would be utilised to make each month a substantial contribution towards discharge of the overall mortgage interest liability. In the event, however, the Husband has had the use of a large proportion, certainly in six figures in sterling. I shall not descend to such detail as was examined, because the necessary particulars are in large measure notable for their absence. Many of the figures were scrambled at a very late stage and the subject of presentation by Miss Dines in closing submissions. Some have come to me even after that.

In any event, for reasons which will become apparent elsewhere in this Judgment, the fact that the Husband has had for his use the monies in question is in no way pivotal to the rationale of the Court’s financial relief award.

In all the circumstances and in consequence of the history and the evidence which I have recounted, it is in my judgment clear that the Wife must be awarded the UK assets to which I have made reference. To that end, appropriate orders will be required by way of property adjustment and/or for the sale of various properties. The reason that I put it so generally is that Mr Shaw confirmed to me in closing submission what I suspected, namely that the consent of the mortgagees, SCB, had not been obtained to the making of any transfer of property order in the Wife’s favour. The ultimate effect of the order which I intend to make will be that:

The Wife will retain the equity in Coombe End.

Mr Shaw did not seek more by way of capital provision for the Wife, making it clear that she is resigned to the impracticability of laying her hands on any Iraqi assets. He also made it clear that, whereas the Particulars of Claim talk in terms of certain declarations, for example as to sham, for the reasons just stated such relief is not thought necessary: the Wife’s only concern in terms of capital award is to come out of the case with long-term ownership of the UK assets less whatever liabilities I deem must be deducted.

Mr Shaw also sought an order for periodical payments, whilst not descending to precision in terms of quantum. This brings into play Matrimonial Causes Act 1973 Section 25A, which is directly relevant to the Part III jurisdiction by virtue of MFPA 1984 section 18(3).

The net UK assets are per Appendix A in the region of £1,664,000, subject to the possibility of some fiscal liability in disentangling Kubik. Plainly, if the Wife were awarded all or some of her costs (for my decision in default of agreement) and, if such order is implemented voluntarily or were to prove enforceable, the Wife’s capital fund after purchase of alternative accommodation would be substantially enhanced. The latter is a proverbial big “if”. That consideration, put to one side, the Wife could have a residue after housing provision of something in the region of £825,000 - £875,000.

The Duxbury tables show that £850,000 would produce an annual income for life for a 53 year old female of c. £45,000. (£70,000 p.a. would require a fund of c. £1.4m). Moreover, a strict application of Duxbury is questionable per se, as the authorities demonstrate, and for obvious reasons. In a case where some substantial reduction in lifestyle looks inevitable, a degree of elasticity is in my view appropriate.

In my judgment, whereas there is obvious attraction in a clean break if it is fair and practicable (by reference to the undue hardship criterion), unhappily it would be neither on the current facts of this case. I propose to award periodical payments in the sum of £30,000 per annum payable monthly with effect from a date to be agreed or otherwise decided by the court. I am not, particularly given the uncertainty imposed upon me by the Husband as to size of his wealth, prepared at this stage to impose a term.

I will hear counsel in due course on all consequential matters, including drafting and what order for costs is appropriate, in default of agreement.

Further, the question arises as to the appropriate destination, in the short term, of the rental income from Knightsbridge Court, St Mary's Road and Berkhamsted Avenue. My current view, which should be communicated to those managing the properties, is that it should be diverted to the Wife, on the basis that it must all find its way to SCB. I expect the parties to agree forthwith a consent order to that effect. If necessary, I will hear an urgent application.