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LFL v LSL (McKenzie Friends : breach of court orders) [2017] EWFC B62

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Financial remedy hearing where the husband, a LiP, failed to disclose his assets and whose McKenzie Friend was excluded from the court after several interruptions, an outburst and threatened complaints against the judge, the solicitor for the wife and criminal sanctions against the wife.

  • IN THE FAMILY COURT SITTING AT BASINGSTOKE CASE NO SO16D09351

    BETWEEN:

    LFL (Applicant)

    And

    LSL (Respondent)

    This judgment is being handed down in private on 18th August 2017. It consists of 122 paragraphs and has been signed and dated by the judge. The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved. The judge gives leave for the case to be reported in an anonymised version as [LFL v LSL (McKenzie Friends and Breach of Court Orders)]

    Judgment of District Judge Nichols

    Heard on the 26th and 27th June 2017

    The applicant was represented by counsel, Miss Jennifer Lee (instructed by Phillips Solicitors Ltd).

    The respondent represented himself and was assisted by a McKenzie Friend Mrs Bennett for part of the hearing

    1. In this judgment I shall call the applicant, LFL, "the wife" and the respondent, LSL "the husband". This is for ease of typing and I do not intend to cause any offence in doing so.

    2. References in the judgment in brackets to page numbers are references to page numbers in the trial bundle.

    3. This is the final hearing of the wife's application for financial remedies, which she commenced by Form A on 25/07/2016. It is ancillary to the wife's petition for divorce, presented on 28/06/2016. Decree Nisi was pronounced on 17/10/2016. The decree has not yet been made absolute.

    4. The husband is a litigant in person. There was an application at the start of the hearing for him to be accompanied by a McKenzie Friend, Mrs Mary Bennett. There was nothing controversial in that. However, on the second day of the hearing, at the lunchtime adjournment, there was an outburst from her, during which she would not leave the court and threatened complaints against me, the solicitor for the wife and criminal sanctions against the wife. In consequence of her outburst, which was the last in a series of interruptions, I decided that her conduct disrupted the proceedings and I excluded her from the courtroom for the rest of the hearing.

    5. Because of the threats that she made, I have decided, sadly, that I must record in this judgment the events surrounding her involvement in the case, should they be required to be referred to in the future.

    6. At the start of the hearing Mrs Bennett made an application for rights of audience. She had completed the standard form of notice which sets out, on the back of the form, a precis of the Code of Conduct for McKenzie Friends. She represented that she had considerable experience in the Employment Tribunals (40 years). She told me that the husband is ill and confused due to him using medication and having had a nervous breakdown. The husband had totally failed to comply with rules of court and had not provided information, given disclosure or followed procedure and it was no surprise, therefore, that there was no formal medical evidence to support that contention.

    7. When I questioned Mrs Bennett, rather than consider the question and provide an answer she seemed to have her own agenda and commenced her first response with the words "this woman" (referring to the wife) in a most aggressive and (in my opinion) derogatory way. That initial communication led me to the conclusion that Mrs Bennett's participation in any way other than acting as McKenzie Friend was likely to lead to an inflammatory situation which in turn, was likely to disrupt the proceedings.

    8. The husband was addressed and I formed the view that far from being confused about the proceedings he was perfectly capable of conducting his case himself. I satisfied myself that he was able to read and that he understood the nature of the proceedings. He was nervous. That is not uncommon in litigants in person and is not in itself a good reason to allow an unauthorised person a right of audience.

    9. I refused Mrs Bennett's application. As things turned out, my decision was justified. As well as the matter referred to in paragraph 6 of this judgment, there were other issues that arose during the course of the hearing. Firstly, Mrs Bennett interrupted the hearing on no less than 5 occasions on the first afternoon. She interjected when the husband was trying to cross examine the wife. She tried to give evidence herself. I warned her on those occasions that she risked expulsion from the court if she persisted.

    10. Secondly, on the second day of the hearing I repeated my warning to her before the day's proceedings started. There was a minor interruption during the course of the morning. A further warning was given.

    11. Thirdly and far more seriously, at the luncheon adjournment, the husband was in the middle of his evidence and he was given the usual warning that he should not speak to anybody about his evidence or the case generally during the adjournment. Mrs Bennett thereupon wrote a note on a piece of paper and referred the husband to it (having just heard the warning given). When questioned what was in the note, she responded with the tirade that I refer to in paragraph 4 of this judgment.

    12. She was then excluded from the courtroom for the rest of the hearing.

    13. The husband was perfectly capable of speaking for himself and I am satisfied that he suffered no prejudice as a result of having to conduct his own case (as opposed to his failure to comply with rules and procedure (as to which see later)).

    Facts

    14. The wife is 62 years of age and the husband is 60. They married on 24/02/2007. The exact date of separation is difficult to discern. Their relationship was described as "on and off" during 2013 and 2014 but during 2014 the property which the wife owned in a town in Hampshire, "Swindon Lane", but which was a matrimonial home was sold. The parties had by then purchased property in Spain. It was clear that in early 2016 the parties signed a document purporting to deal with the family assets on separation. The wife left Spain to return to the U.K. in May 2016 and it seems to me that May 2016 is when the relationship was really at an end. This means that the marriage was one lasting 9 years and 3 months.

    15. The husband had owned property in another village in Hampshire prior to the marriage and he sold it and in 2006 (before the marriage) redeemed the outstanding mortgage upon the property in Swindon Lane. The sum required to redeem the mortgage was £86,000.00.

    16. In 2008 the parties moved out of Swindon Lane and rented property in Spain. The Swindon Lane property was let to tenants (through a firm of estate agents). In 2009 the parties purchased a villa in Spain, "Villa Costa del Sol". This was financed by taking an interest only mortgage, secured on the Swindon Lane property. The net proceeds of sale was £85,000.00.

    17. In 2011 the wife received the sum of £118,000.00 by way of inheritance from her father's estate.

    18. The destination of the funds acquired is in issue.

    Litigation conduct

    19. The wife has complained about the husband's litigation conduct. There are 2 complaints. Firstly, it is said that the husband has failed to comply with rules of court and orders. Secondly it is said that he has failed to provide any or any adequate disclosure.

    20. The first complaint is clearly relevant when it comes to consider the question of legal costs. The second complaint is relevant when the court comes to consider issues regarding the assets of the marriage and whether adverse conclusions ought to be drawn from any such non- disclosure. Miss Lee referred to the decision of Mostyn J in NG v SG (Appeal:Non-disclosure)[2011]EWHC (Fam) which I will consider when making findings of fact.

    21. In February or March of 2016 the parties signed a document which provided that:

    1. The husband agrees to split half of the money in the UK;

    2. The husband agrees to split half of the equity in the property in Spain after all bills paid;

    3. The husband agrees to cash in his Sun Life pensions and divide equally;

    4. The husband agrees to pay the wife 300 euros a month;

    5. The husband agrees to get a 'settlement figure' for his Standard Life pension and give the wife half;

    6. No other claims.

    22. Miss Lee contends that the document was never witnessed, neither party had received any legal advice, there had not been any financial disclosure and it did not take into account the wife's pre-marital contributions to the marriage. Moreover, she says, when the wife returned to the UK in 2016 the husband refused to honour it.

    23. I refer to this document at this stage because it was part of the husband's case that he was unwell at the time the document was signed. The husband's evidence is contained in the 2nd version of the husband's form E (page C98). He did not have permission to file and serve an amended form E but it is in the trial bundle. He says "My Spanish lawyers when confronted by Mr LSL (sic), she was desperate, knowing she had never contributed to this home or marriage, she hand drew up demanding the solicitors, having forced me to sign it while I was on heave (sic) tranquiliser and suicidal, by her breaking into my locked cabinet she stole 600 and £1000 and all of the documents of my pensions, then took me sedated by my GP, to the lawyers office to agree to giving her half of everything, they refused to ratify it or to print it out as it was total (sic) illegal,……". The husband wrote to the wife's solicitors (30/08/2016) a letter which accompanied his acknowledgment of service of the petition for divorce. He said (which he did not contest at the hearing) "I will not be completing an E1 form (sic) as myself and LFL all ready (sic) have a financial agreement in place". Thus on the one hand he relied upon the document as a reason for not completing a form E, but on the other hand he suggested that he was not bound by the document because he says it was signed under duress and when he was heavily sedated and not in the right mental state to understand what he was committing himself to.

    24. This is a wholly inconsistent position.

    25. When the wife commenced the application by filing form A, the usual papers were produced and served. Form C (the notice of first appointment dated 04/08/2016) instructs the recipient exactly what to do in order to comply with the rules. The husband was required to file at court and send to the wife a completed form E by 05/10/2016. By 26/10/2016 he was required to file and serve a statement of issues, chronology, a questionnaire setting out the further information and documents required from the wife and a notice in form G. The first appointment was listed for the 9th November. The husband did none of what was required.

    26. On the 9th November the application came before the district judge. The hearing was abortive because of the non-compliance. The district judge recited in his order (page B15) that:

    1. "Upon the non attendance of the respondent but the court being satisfied that the respondent is aware of these proceedings due to his handwritten letter to the applicant's solicitors dated 30th August 2016 to say that he does not intend to file a form E

    2. And upon the respondent having failed to file form E as a direct result of which only limited progress has been made at today's hearing

    3. And upon the respondent being placed on notice herein that if he continues to refuse to engage fully with these proceedings and comply with any order of the court, then the court will exercise its discretion to make an order in his absence and/or impose costs orders against him"…….

    27. The consequences of failing to comply with a court order could not have been made clearer to the husband. The order gave him another chance to participate fully in the proceedings. It required him "to file with the court and serve upon the applicant's solicitors his completed form E financial statement with supporting documents by 4pm Wednesday the 30th November 2016".

    28. A penal notice was attached to that requirement and permission was given to serve the order by email. Further directions were given for serving questionnaires, providing answers, for the applicant to make enquiries with regard to the respondent's various pension schemes and for the pension providers to answer queries. A further hearing, a Financial Dispute Resolution Hearing, was fixed for the 20th February 2017.

    29. The court ordered the husband to pay the costs relating to that hearing (a reflection of his conduct) of £573.90 by 23/11/2016 and in default, to be deducted from his share of the assets.

    30. On 20th February 2017 the application was again before the district judge for the FDR hearing. There appeared to have been some difficulty regarding service of the earlier order, according to the husband. He said that he did not realise that he had to file financial documents. The district judge did not invoke his powers upon breach of the order, but instead insisted that the husband complete a form E at court.

    31. The form E completed at court is at page C35 et seq of the bundle. It is fair to say that the completed form is, in the main, indecipherable. What can be reasonably discerned from the document is that the husband asserts that:

    * He is a self employed pool cleaner

    * The date of separation is 18/02/2014

    * He has a number of ailments, including arthritis, depression, hypertension, asthma, angina, carpal tunnel syndrome, gout and a skin disorder.

    * He is the sole owner of the property in Spain. The wife was 'added' as 'wife only'

    * There has been some damage to the property which affects its value

    * No council tax has been paid in years

    * There has been an 'illegal' build in the grounds of the property

    * The property is not registered at the Spanish equivalent of the Land Registry

    * There is a life assurance policy (or maybe 2) with Sun Life of Canada which has a surrender value of £26,996.10

    * His pool business is not 'legal' because it is not registered. He attributes a value of £11,024.00 to the business

    * He has a stakeholder pension with Phoenix Life. The CEV is not discernible

    * No income from self employment was disclosed (C49)

    * There are other pensions (C52) with Sun Life and Standard Life. The total value of pensions is £43,359.00

    32. The summary page is not completed. If it had been, it may have been possible to make sense of what had been inserted.

    33. The husband was not, of course in a position to annex documents to his form E at court and did not complete the checklist (page C61).

    34. The form contains detailed notes for guidance as to how it should be completed and the documents that are required to be disclosed with it.

    35. The husband had obviously considered his position further, because he prepared a second version of form E re-dated 21/05/2017. Sadly it is as indecipherable as the first. It adds little to the first version. Instead of declaring his financial assets, the husband simply adds allegations that the wife has salted away large sums of money and has been guilty of crimes, matters which he may have raised in a witness statement, had he properly complied with orders of the court. He disclosed that he ferries persons to the airport for gain, acknowledging that he is in danger of being dealt with by the Spanish Police as an illegal taxi service.

    36. He alleged that the wife had stolen money and shares from him, and that she has 2 houses in the USA and a further property in Spain. He accuses her of money laundering. He also accuses her of benefit fraud, suggesting that she is claiming Disability Living Allowance fraudulently.

    37. He also claims that the wife stole everything from the FMH in Spain, before returning to the UK.

    38. For the first time, he sets out his claimed needs. They are said to be:

    * He requires a carer and a driver – cost "20k". He does not say whether the sum is expressed in sterling or euros

    * He will have to rent accommodation while the house dries out and is repaired. He says the current costs are "k5000" and the future costs are "k19000".

    39. These figures are meaningless.

    40. He sets out the order he seeks from the court. He seeks transfer of the family home to himself (even though he alleges that he is already the sole owner), £1000.00 per month periodical payments and one half of all of the wife's alleged worldwide assets.

    41. The husband completed the 'schedule of documents' page (C103) but I am told that no documents actually accompanied the served form E. Some documents were described, by the husband, to be 'attached'.

    42. I have gone to some lengths to set out what is in the husband's forms E, in order to illustrate the difficulty that lack of disclosure and full and detailed information has caused (see later).

    43. Following the FDR, the application not being capable of determination, the judge made other orders. He ordered that parties to answer and provide further documents in response to respective questionnaires. The wife had served a questionnaire (C62) dated 28/02/2017. This was never answered. The husband never served a questionnaire.

    44. A joint valuation of the FMH in Spain was ordered, the cost of which was to be shared equally. The husband did not participate in the instruction. Mr Parker, the wife's solicitor, made a statement in support of an application for further directions. It is dated 22/03/2017 and starts at page E1 of the bundle. At paragraphs 6 onwards he explains the chain of communications sent. They are there for all to see. The husband at this hearing suggested that he was not receiving communications from the solicitors, but having regard to the written evidence referred to, I am satisfied that he was. He further said in court that he got fed up with receiving communications and so did not respond to all of them. The latter is more likely to be the case. He referred to the place from where his post was collected as being a 5 minute drive from the house and sought to use that as an excuse for not having responded to communications. It seems to me that, being in the middle of court proceedings, he should have been attending his post box frequently in order to see if there were communications which required his (timely) attention. The letter of instruction sent to the valuation agent was couched in neutral terms and it is noted particularly that there was no permission given for any other valuation evidence. The court approved the draft letter of instruction at a hearing on 27/03/2017. Following receipt of the joint expert report, there was, of course, an opportunity for the husband to have raised written questions. He did not do that but instead chose to dispute the valuation at the final hearing and sought to adduce evidence from the internet and other agents relating to other properties, without the slightest warning or even hint, before the hearing, that he intended to do so.

    45. The order of 20/02/2017 also provided that the parties were each to file a short narrative statement not later than the 5th April, dealing with the dates that the pensions accrued. To have complied might well have been to the husband's advantage. The district judge must have had in mind that at least part of the accrual must have occurred outside of the marriage and that the trial judge could take this into consideration when apportioning the assets. The husband failed to comply. The wife filed a statement dated 23/03/2017 (page E66).

    46. The judge ordered that open proposals must be filed by 14 days before the date fixed for the hearing. The wife complied. The husband did not.

    47. The judge must have been concerned that the husband was likely to dissipate the pension funds because he made what was, in effect a S37 order freezing the pension assets and gave permission for the wife to obtain information directly from the various pension providers.

    48. The application came before the court yet again on 03/05/2017, when DDJ Gold recorded, amongst other things, that the husband had still not answered the wife's questionnaire and he gave the husband a further chance to do so by 4pm 24/05/2017. A penal notice was attached to that provision of the order. The husband was in court when the order was made but he failed to comply. The judge ordered him to pay the applicant's costs of the application, but stayed the order until the final hearing. He must clearly have had in mind that the husband's share of the assets would be affected by the costs orders which had been made.

    49. The husband sought to argue that he had been ill. There was no medical evidence produced as to the illness, or the particular illness that prevented him from properly addressing the application. He also said that he was ignorant of court procedure. I have considered that issue. As earlier described, the documents in a Financial Remedies application are standard and contain detailed guidance as to how they should be completed. There is a lot of information attached to the forms and that includes information as to the documents that must be disclosed. Moreover, the husband attended the hearing at which directions were given and to my mind it is inconceivable that the judge did not explain the orders that he made, especially as 2 of the orders contained penal notices.

    50. Furthermore, the husband displayed an intention not to comply, by sending the wife emails which contained threats to dispose of assets or to take such steps as would stifle her claims (see the emails at pages E149, E42 and E151, the latter 2 of which contain more sinister threats).

    51. The purpose of the rules and orders of court are to ensure that

    * There has been full and frank disclosure of the parties' assets and income

    * Each party is enabled to understand the other party's case and can take steps to clarify it, try to settle or decide to contest in an informed way

    * The issues are capable of being identified not only by the parties, but by the court so that the judge is aware of the issues upon which he will hear evidence and ultimately decide the application

    * To save costs, which eat into the assets that are available for distribution

    52. The husband's total disregard of the rules and court orders has had the effect of forcing the wife to a final hearing. Aside from the claims to an order made in the 2nd form E, which were not themselves justified or supported by documentary evidence, the wife, even on the day of the hearing did not know the case she had to answer or what the husband really sought as being fair.

    53. This has caused costs to be escalated and must be taken into account when deciding whether to make any order for costs and if so, what order to make, in due course.

    54. Non- disclosure has a devastating effect. It prevents the court from considering all of the evidence that could have been available and forces the court into the unsatisfactory position of having to make assumptions as to the existence of certain assets and other relevant facts.

    The "settlement document"

    55. At paragraph 21 I referred to the document signed by the parties, which, on the face of it, purports to be an agreed settlement of the parties' financial affairs arising upon dissolution of the marriage. However, both parties, for differing reasons, have sought to argue that it is of no effect. In the absence of full financial disclosure, it is clear to me that the "agreement" cannot be upheld, or even taken into account as part of "all the circumstances of the case". The husband, rather aggressively asserts that it was obtained by duress and at a time when he was vulnerable. Having heard the parties, I come to the conclusion that, on a balance of probabilities, the husband's assertion is not true. He did not strike me as the sort of person who would succumb to any coercion by the wife. He had control of the finances and generally got his way in respect of important family matters. Wherever the truth may lie, the document is of no effect.

    The assets

    The former matrimonial home

    56. In 2005 the parties began to cohabit at Swindon Lane, which was registered to the wife as sole proprietor. The husband had lived with his former wife in a neighbouring village. In 2006 the property there was sold and the husband redeemed on the wife's behalf, the mortgage on Swindon Lane. The parties married on 24/02/2007.

    57. There were discussions and in 2008 the parties moved out of Swindon Lane and went to Spain where they rented a property. The property in Swindon Lane was retained and let to tenants.

    58. The parties decided to buy property in Spain and to live there. In 2009 Villa Costa del Sol (the FMH) was purchased with the aid of an interest only mortgage taken on the security of Swindon Lane.

    59. In 2014 Swindon Lane was sold for £240,000.00. The interest only mortgage was cleared and there was about £85,000.00 left. The wife says that this was used to carry out improvements on the property in Spain. The husband in oral evidence made reference to the fact that €80,000.00 was spent on the property and I accept that the figure is likely to have been €80,000 – 85,000. This must have been the balance of the proceeds of sale of Swindon Lane.

    60. It is clear that the parties intended that the property in Spain would be their matrimonial home.

    61. The court ordered a joint valuation of the property. There were difficulties with the valuation as described earlier in this judgment, due to the husband's lack of cooperation. However a valuation was eventually made by a company called "Mercadors" (page D6 et seq). Dawn Lloyd prepared the report. She is a Sales Agent and has been employed by Mercadors for just over 3 years. She conducts the majority of their valuations on the urbanisation where the FMH is situated. There are 4,500 properties there, all with varying designs and features. She took into account the location of the property being close to amenities. The type of property is one of the largest that was built by the developer and includes an outside garden and (now) pool.

    62. The property is in relatively poor condition. There are various areas of damp and evidence of water damage. She explains that in December 2016 there was continuous and excessive rainfall for a period of 4 days, resulting in water ingress to the property from above and below ground. She suggests that the property is professionally surveyed and repaired, in order to make it habitable and desirable for purchase.

    63. Whether it is habitable is a difficult question to answer, since it appears that the husband resides there, despite what is said by the expert.

    64. In its present condition, the property is said to be worth €150,000.

    65. If the repairs are carried out the expert says that the market value of the property will be €190,000 and to justify this valuation, she has compared prices of other properties which are advertised through Mercadors. Details are in the trial bundle at D9-12.

    66. The husband came to the final hearing and contested the valuation. He had not given prior notice of his intention to do so. He had not raised any objection to the valuer's opinion before the hearing. The expert opinion was the only evidence permitted by the court, but the husband sought to introduce other evidence of valuation. There were 2 documents. The first was an internet advertisement and the second was property particulars of what was said to be a similar property. Neither were persuasive, even had they been admissible. The husband could have a) raised written questions of the joint expert relating to the actual valuation or, if not satisfied for good reason b) have applied to the court before the final hearing, for permission to adduce other evidence and/or to have the valuer attend court for questioning. He in fact did nothing, a familiar picture that has emerged in this case. I accept the valuer's opinion.

    67. The husband and the wife say that they do not have sufficient funds to effect the repairs. The wife has disclosed capital sums available but the there is no evidence of the actual or estimated costs of the repairs. I bear in mind the 2 valuations (of the joint expert), when considering what order to make.

    68. There was some dispute about a historical decision to put the property on the market in 2015. The wife says that it was agreed that this would be done and it was, but the husband then unilaterally took the property off the market. The husband says that the wife agreed to its withdrawal from the market. The suggested sale price was €140,000. Since €80,000 had been spent on it, he was not going to sell at that price, but would rather wait. He said in evidence that he was in Spain at the time and he therefore made the decisions. On the basis of what I heard it seems to me more likely that the husband made the unilateral decision to withdraw the house from the market and that the wife is not telling lies, as was alleged against her. This is not conduct that affects substantive decisions which the court has to make, but is considered here, for the sake of completeness.

    69. There is no evidence of the likely cost of the repairs required to put the property in good condition so that it can be sold at a higher price. Although I understand the husband's position that he would rather not sell (or will not sell) the property at a loss, it is frequently the case that properties have to be sold at a loss through no fault of either party, e.g., as a result of economic downturn. It seems to me that the proper course to adopt is to value the asset in the condition in which it now is, namely €150,000.00. The costs of sale have been estimated at 3.9%. This produces €5850.00. The net value of the asset is therefore €144,150.00.

    Other real property

    70. The husband alleged that the wife has other real property in both Spain and in the United States. He adduced no extraneous evidence to justify this assertion. The wife said that her daughter has property in the USA and that she stays there when visiting. She denied having any other property in Spain. There was no explanation by the husband as to where he said the capital to acquire these properties had come from. The wife said, convincingly, that she would not be renting a small property in England if those assets were available to her. The husband's assertions are in my judgment, mere speculation and he has not discharged the burden of proof in this regard. I find that the wife does not have any such properties as alleged.

    Cash

    71. The wife says that, including an ISA, she has ready cash of £48,735.00. The husband has £2061.00 in his Spanish bank account. There is £4,450.00 in the parties' joint Spanish bank account.

    72. In 2011 the wife's father died and she inherited £118,257.00. The only document produced at the hearing is an estate account, but the amount of the inheritance did not appear to be in issue. The wife appears to have taken one half of the estate. What has become of it is in issue. The wife says that £30,000.00 was used to purchase the husband's swimming pool cleaning business. In the chronology it is suggested that the business was purchased in 2009, which was before the date of the inheritance. The husband says that none of the inheritance was used for this purpose. The husband did not disclose any documents relating to the business which has caused difficulty in making findings of fact. The wife complied with all orders of the court and completed disclosure (if not to the husband's satisfaction) and I take her evidence at face value and accept it. It may be that the date of purchase is misquoted in the chronology. The husband has a wholly unreliable memory for dates and on a balance of probabilities, the wife did make the business purchase from the inheritance. The husband did not give any indication of from where he thought the purchase monies had been derived.

    73. After the purchase, she would have been left with £88,257.00.

    74. I heard evidence from the wife that she had given her son the sum of £25,000.00. She lent him £10,000.00 in connection with his business. It was intended as a loan. The recession hit and he was not able to pay it back. She then decided that she would treat it as a gift. At a future point in time, he ran into further difficulties and she lent him a further £15,000.00. She said that he will pay it back. The parties disagreed about whether there was any discussion between them regarding the funds but I am satisfied that the initial £10,000 loan was discussed. The wife was equivocal about any discussion concerning the second loan. The first loan was converted to a gift. The second is repayable and is capital which is owed to the wife.

    75. After these loans the wife would have been left with £63,257.00. She now has £48,735.00. This leaves £14,522.00 to be accounted for. In May 2016 the wife moved back to England permanently. She rented a property at £850 per month. She has income from a small pension. She says that she has had to use her capital to fund (partly) her needs. It is easy to see how the capital will have been diminished.

    76. It was suggested by the husband that the wife has hidden cash in other accounts. He did not identify any extrinsic evidence, e.g., transfers out of existing accounts, to justify this assertion and I do not accept that the wife has done so.

    77. The cash available is enhanced by the money that the wife says her son will repay.

    78. I have to go on to consider the nature of the inheritance. Is it matrimonial or non matrimonial property? In Miller v Miller [2006] UKHL 24 the source of contributions was discussed. Lord Nicholls adopted the approach that not all property should be considered in the same way. He said (at para 23) "The matter stands differently regarding property ('non-matrimonial property') the parties bring with them into the marriage or acquire by inheritance or gift during the marriage (my emphasis). Then the duration of the marriage will be highly relevant". He went on to consider the summary in the White v White case where the matters to be taken into account when deciding the issue were set out. Importantly he referred to the principle that "In the ordinary course, this factor (contribution) can be expected to carry little weight, if any, in a case where the claimant's financial needs cannot be met without recourse to this property"

    79. It is clear that the inheritance was brought into the marriage by the wife and was not a product of the marriage itself. The wife intended that it should be used for the benefit of the family, since she actually used part of it to fund the husband's business in Spain. To this extent it could be fairly stated that the property was mingled with the matrimonial property.

    80. The court may distinguish matrimonial property and non-matrimonial property with the degree of particularity or generality appropriate in the case (see paragraph 27 of the opinion of Lord Nicholls). This was not a marriage of great length and I have come to the conclusion that the inheritance was non-matrimonial property to the extent that when the parties' relationship was foundering, the wife took steps to preserve it for her own benefit. She had not made it available generally, but had paid £30,000 in respect of the husband's business, retaining the remainder under her complete control.

    81. The parties' available assets are such, however, that their needs are not likely to be met without it and I take it into account when considering needs overall.

    82. Baroness Hale in Miller took a different approach. She considered that property acquired during the marriage is matrimonial property. The source of assets may diminish with time, but the source may, in the circumstances of the particular case, justify a departure from equality.

    83. She too, considered that where needs demand, whatever the source of the property, it became available for distribution.

    84. Mostyn J in JL v SL (No2) (Appeal: Non-Matrimonial Property) [2015] EWHC 360 (Fam) took the approach that it is necessary to differentiate non-matrimonial property, but that it is not quarantined and the court had recourse to it if needs of the parties demanded.

    85. Thus needs is the paramount consideration.

    86. Finally, the husband questioned what had happened to the monies derived from the tenancy of Swindon Lane during the time that the parties were in Spain together. The wife did not directly answer the question and her evidence in this regard was not entirely satisfactory. However, it appears to me from a calculation of the rent that was paid on the wife's tenancy when she returned to England, that it is likely it was expended on her housing and living needs.

    Personal property

    87. Counsel for the wife produced a schedule of assets for the hearing. No issues were taken with regard to the personal property described in it. The husband said that the wife cleared the house in Spain before leaving, but it does not seem to me that that is the case. The property is valued as to £6,600.00 in the wife's possession and £15,000 for the husband. The nature of the property is such that (perhaps excepting the jewellery in the wife's possession valued at £2000) it is not likely to have any appreciable second hand value and for the purposes of apportionment I am going to ignore it.

    Pensions

    88. The CEV of each of the pensions is demonstrated by the documents in the trial bundle and is set out in the schedule of assets. No issues were raised in respect of the valuations. The CEV of the wife's pension is £41,706.00. The pension is in payment. The CEV of all of the husband's pensions is £160,809.00.

    Income

    89. The wife is retired. Her only income appears to be her pension income of £1775.00 pa. She has not renewed her tenancy, because her capital is diminishing and she is presently living at the home of a friend in Berkshire. It was suggested that it is, in fact, the home of her new partner. She denied that and says that she does not have a new partner. Her evidence throughout was given in a clear and unhurried way and I was impressed by it. I accept what she says.

    90. The husband on the other hand, has been a serial non-discloser and there is no hard evidence of the extent of his income from the pool business or the taxi services that he provides. He never produced any documents to accompany his form E or thereafter. He suggested that he had done so. Mr Parker, the wife's solicitor denied that he had ever received any documents and they were not available at the hearing. I have not seen accounts, invoices, receipts or bank statements. This is hardly surprising, since the husband said in evidence that he is carrying on his business illegally, in that it is not registered and he does not declare any of his income for tax purposes. The evidence that the Spanish authorities prohibited illegal taxi services, but that he still undertook them at some danger to his property, shows that he is someone who will disregard civil laws, apparently with impunity "because everyone does it" says much about his credibility. The fact that he does so does not in any way justify non- disclosure. I have to make assumptions about his income and earning capacity.

    91. I was referred to the decision of Mostyn J in NG v SG (Appeal: Non Disclosure [2011] EWHC 3270 (Fam). The case was an appeal from an order made by a district judge who had in his judgment described the husband there as a serial non- discloser, just as I have adopted that expression in this case. In the very first paragraph of his judgment, Mostyn J referred to the damaging effect of non-disclosure and said [the court's powers] "are thrown back on inference and guesswork within an exercise which inevitably costs a fortune and which may well result in an unjust result to one or other party"

    92. In F v F [1994] 3 FLR 359 Thorpe J (as he then was) said " ….if in consequence (of the non- disclosure) the obscurity of my final vision results in an order that is unfair to him it is better that than that I should be drawn into making an order that is unfair to the wife"

    93. I should not make assumptions that, because of the non disclosure the husband has vast assets salted away, if there is no evidential basis for doing so. I should not be led to a knee jerk reaction, but that is not to say that the court has to put a precise figure on the scale of the hidden assets, let alone to identify by reference to evidence what they are or what they comprise (see paragraphs 6 and 7 of the judgement). On the other hand (see paragraph 15 of the judgment) the court must be concerned to see that the inferences to be drawn do not result in a too conservative estimate.

    94. Drawing these strands together, I do not make any finding as to the husband's actual income from the 2 'businesses'. The husband alludes to medical issues affecting his ability to work into the future. He is 61 years old. The statutory retirement age in England has changed and it is likely that the husband would have been expecting to work until his 67th birthday. In view of the nature of his business he may well have decided to continue working after normal retirement age. It would have been a simple task to produce a medical report which provided the relevant diagnoses and prognoses for his alleged ailments. The only live evidence came from the wife. She said that the husband's doctor (in a nearby city) had told him to cut down his alcohol consumption and said that his condition would not get worse. I come to the conclusion that the husband is likely to be able to continue working until normal retirement age at least.

    95. There is no evidence to enable me to calculate his actual earnings, but in view of the fact that he seems to have managed, since separation up to now, without any financial assistance from anyone else I draw the conclusion that he is able adequately to cater for his own needs. The wife does not seek periodical payments and it is sufficient therefore for that finding to inform my judgment.

    96. The husband raised a yet further issue that the wife's son had defrauded him out of some money. The husband's car had been sold by the wife's son who had kept the proceeds of sale. It was submitted by Miss Lee that this is a dispute between the husband and the wife's son (who is an adult). I accept that submission. The wife cannot expected to financially resolve that particular dispute.

    97. The husband maintains his businesses. He valued the pool business at £11,024.00. There is no extrinsic evidence to support this valuation, but I accept it for the purposes of apportionment. I could draw the conclusion (by way of assumption) that the husband is seeking to hide its true value by non-disclosure, but since the business is effectively "him", it makes no difference to the overall outcome. He would not be able to adequately cater for his needs without it. The following tables do not account for the capital value of the business.

    The assets are:

    Asset £
    Wife £
    Husband £
    Joint £
    Former Matrimonial Home
      €144,150*
    Cash
    48,735
    2061
    4450
    Loan to son (repayable)
    15,000
      
    Pensions
    41,706
    160,809
     
    Total
    105,441
    162,870
    132,743.50

    *The exchange rate of the euro is as of today 0.89

    The parties open positions

    98. The husband's position, which was adopted only at the hearing and not communicated to the wife earlier, differed from what is contained in his form E. He then wanted capital provision. He now says that:

    a) There should be no pension share;

    b) The wife should pay one half of the costs of repairs to the FMH which should then be sold and the proceeds divided equally;

    c) There should be valuations of the cars;

    d) The wife should pay him what is alleged to have been stolen from him by her son.

    e) Half the cash assets

    99. This position has the following effect, assuming that the repairs to the property are going to cost €40,000, a figure suggested (but not justified by the husband) and the property sells for €190,000.

    Asset £
    Wife £
    Husband £
    Former Matrimonial Home €190,000. Less costs of sale €7,410 and cost of repairs €40,000 = €142,590 
    €71,295 (less her share of costs of repairs €20,000) = €51,295 x 0.89 = 45,652.55
    €71,295 x 0.89 = 63,452.55
    Cash (including loan to wife's son) 70,246 35,123
    35,123
    Repayment of money alleged to have been retained by wife's son (9,000 per husband's form E) 
    (9,000)
    9,000
    Valuations of cars (is not understood)
      
    Pensions
    41,706
    160,809
    Totals
    113,481.55 (29.71%)
    268,384.55(70.29%)

    100. The wife's open position is that:

    a) The former matrimonial home be transferred to the husband;

    b) There should be a pension sharing order in her favour in respect of the De La Rue pension (which after tax and pension sharing charges she would receive about £98,620.00);

    c) There should also be a pension sharing order in respect of the Standard Life Pension in order to discharge the costs orders made against the husband at interim hearings (which after tax and pension sharing charges will realise about £4103.00);

    d) The husband should retain the swimming pool cleaning business (and presumably, the taxi services proceeds);

    e) She should retain her savings from her inheritance;

    f) The husband should pay the costs of the proceedings due to his litigation misconduct, which the wife says are £21,285, by way of a further pension share from one or more of the husband's other pensions.

    101. That position has the following effect:

    Asset £
    Wife £
    Husband £
    Former matrimonial Home (in its present condition) €144,150 x 0.89 = £128,293.50
     128,293.50
    Cash (including debt owed by son)
    63,735
    6,511 I have assumed that it is intended that the husband shall have the contents of the joint account
    Pensions
    De La Rue Standard Life and retains her own 165,310
    Sun Life of Canada x 2 Phoenix life 49,779
    Totals
    229,045(55.37%)
    184,583.50(44.63%) from which the wife contends that £21285.00 should be paid to her by way of costs


    102. Both positions represent a departure from equality. However, it is necessary to consider the nature of the pension assets. Generally they are considered to be illiquid assets and intended to provide an income in retirement. They are often treated differently to liquid assets. The husband and wife in this case are 63 and 61 years of age respectively. The wife's pension is in payment and the husband is able to draw down on his pensions immediately if he so wishes. The pension rules now enable individuals to treat their pensions as a fund from which to draw down funds when required. Pension funds have recently been compared to bank accounts. Drawdowns (subject to the tax free sum that is able to be taken) are liable to tax. The wife's position is that if pension sharing orders are made, she will immediately cash in her share so that she can house herself and not have to rely on the rental market. In view of those factors, particularly the age of the parties, it seems to me that it is not appropriate to treat the pension funds, available as they are now, any differently to the other assets.

    103. In deciding what order to make, the court must consider the factors set out in S25 of the Matrimonial Causes Act 1973. I have considered them all. Some factors will have more significance than others, depending on the circumstances of the particular case. In this case the following factors are of significance.

    104. The wife is already retired and has minimal income from her pension. She may be entitled to benefits. She does not seek periodical payments from the husband. The husband is 61. He suggests that he will be able to continue in work for only 18 months, but I do not accept that is the case. There is no evidence to support that contention. He is able to cater for his needs.

    105. His housing needs will be met if he retains the former matrimonial home. It requires some repairs but is habitable. There was evidence (not disputed) that beds had been installed at the property. It is suggested that he may be letting rooms. The husband says that they were installed for guests. Whatever is the true reason, it suggests to me that the house is habitable. He will be able to maintain it and himself from his income.

    106. The wife is presently staying with a friend. She requires housing. Her reasonable needs will be met by her being able to buy a small property in the town where she had lived before relocating to Spain, which she says she will be able to do if an order is made in the terms she seeks. The wife's capital needs are set out at page C22 in her form E. They were not contested with any vigour and I accept that they are her needs, generously interpreted. She is likely to have to shop around for property a little cheaper than her estimated needs would suggest she requires.

    107. Her income needs will not be met, but she is prepared to manage, without payments from the husband.

    108. There is no prospect of income or capital gain in the future.

    109. The parties' pension positions, if the wife's proposals are accepted, would be roughly equal, given that she will have to cash in her share of the husband's pensions to fund the purchase of a house. They will be left with very modest pension income. I have considered the fact that some (even a large part) of the husband's pension accumulation may have been acquired before the marriage, but he did not provide any evidence of the relevant proportions. In any event, the wife's capital needs dictate that the funds must be accessed in order to provide for them.

    110. A similar position applies to the wife's inheritance.

    111. The marriage was not a long marriage, but the parties had established themselves financially together.

    112. The assets should as far as possible, be divided equally. The wife's position represents a departure from equality (55.37% to 44.63%) but that departure is justified on a number of grounds. Firstly the husband's non-disclosure should not result in unfairness to her. Secondly, her capital needs justify it. Thirdly, I have not taken into account the value of the husband's business which he will retain. Such retention has the effect of reducing the departure from equality to 46.60% to the husband and 53.40% to the wife.

    113. The husband's position represents a significant departure from equality with no conceivable justification and I reject it.

    114. I must consider the question of the costs of the application. The usual or normal position is that the parties bear their own costs. The wife has chosen to have legal representation (as she was entitled) and the husband has chosen to represent himself (with some help from Mrs Bennett). His litigation misconduct has undoubtedly caused the costs of the application to increase out of all proportion to the issues in the case. A considerable amount of judicial time has been spent, not only in court, but also in preparing this judgment, in order to address (and I hope that I have done so fully) the peripheral issues that raised their heads, before the substantive issues could properly be considered.

    115. The general rule as to costs in Financial Remedy proceedings is that the court will not make an order for costs to be paid by one party to the other (FPR 28.3 (5)). That rule is subject to Rule 28.3 (6) which gives the court power to make an order for costs against a party where the court considers that it is appropriate to do so because of the conduct of a party in relation to the proceedings. For reasons articulated earlier in this judgment I take as a starting point that the husband should pay the wife's costs. In doing so I have considered Rule 28.3 (7) with the exception of sub rule (f), which I do now.

    116. Sub rule (f) requires the court to consider the financial effect of any costs order upon the parties. This means both parties. If I do not order an additional pension share in favour of the wife to satisfy the costs order that I will make, she will have to fund her solicitor's costs out of the funds that are to be earmarked for her housing needs. That would amount to considerable prejudice to her. A further pension share would be prejudicial to the husband because he will be left with very little from which to derive an income in retirement. I considered whether I should simply order the husband to pay the wife's costs, without the security of a transfer to ensure that they are paid, but I consider that any unfairness to the husband is outweighed by the unfairness to the wife if a transfer order is not made (considering the words of Thorpe J as he then was, in F v F (see paragraph 92 of this judgment).

    117. Although I did not have a translation of the documents of title to the house in Spain, I am satisfied that it is jointly owned. If I am wrong then I simply order that the husband shall retain it. Otherwise there must be an outright transfer to the husband.

    118. The wife shall retain her existing cash assets and the proceeds of the joint account shall be the husband's.

    119. There shall be transfers of 100% of the De La Rue and Standard Life pensions to the wife. The wife will retain her own pension.

    120. To satisfy the costs order which I make, namely that the husband shall pay the wife's costs of £21,285.00 (which I consider proportionate), there shall be such percentage transfer of the Sun Life of Canada pensions to the wife as is required to satisfy the costs.

    121. There will not be an order for periodical payments.

    122. There will be a clean break as to income and capital and neither party should be able to make any claims consequent upon the death of the other.


Published: 21/09/2017

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