B (Appelant) v B
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Roberts |
| Judgment Date | 28 November 2014 |
| Neutral Citation | [2014] EWHC 4545 (Fam) |
| Date | 28 November 2014 |
| Court | Family Division |
| Docket Number | Case No: FD13D00542 |
[2014] EWHC 4545 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Roberts
Case No: FD13D00542
Stephen Lyon (instructed by SBP Law Solicitors) for the Appellant
Duncan Brooks (instructed by Lee and Thompson solicitors) for the Respondent
Hearing dates: 10th and 11th November 2014
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
A. Introduction
These are cross-appeals by an appellant husband (H) and respondent wife (W) against parts of a raft of final orders made by DDJ Airey in the Central Family Court following a three day hearing of W's application for financial remedy orders. The hearing took place between 24 and 26 March 2014, although the order was not perfected until 2 July 2014. As part of that order, H applied for, and was refused, permission to appeal.
The relevant parts of the order made in those proceedings following divorce provided for:-
i. the sale of the FMH.. Specific provision was made in terms of the "lotting" and timing of the sale in circumstances where W and at least one of the children of the family were living in a converted barn adjacent to some adjoining land in respect of which there is an extant application for planning permission. W was given sole conduct of the sale;
ii. From the net proceeds of sale, various liabilities were to be met (including the mortgage) with the balance being divided equally between the parties;
iii. The proceeds of sale from another property in Hambledon (then being held by conveyancing solicitors) were to be divided equally between the parties;
iv. Cash held in various bank accounts was to be equalised by means of a payment to W by H of just over £10,700 together with an account by H to W of 50% of any sum he received in respect of an end of service indemnity bonus;
v. Pension funds were equalised by means of a pension credit in W's favour;
vi. W was awarded periodical payments on a joint lives basis at the rate of £6,500 per month (£78,000 per annum) with effect from a date in June 2014.
For the sake of completeness, the order included a recital, reflecting a specific finding made by the DDJ, that W should retain absolutely her contingent 25% interest in her mother's property which came to her as part of the testamentary provision made by her late father under his Will.
The former matrimonial home has yet to be sold, although it is currently being marketed for sale. I was told that an offer has just been received, subject to contract, for the Barn and some amenity land in the sum of £890,000 (a sum in excess of the formal valuation). I have been told that there are ongoing proceedings in relation to an occupation order which W secured during the proceedings. There is a further court hearing in January 2015. These are not matters with which I need to deal in this judgment other than to observe, as I have earlier, that the ongoing costs of this litigation are likely to prove ruinous for this couple if common sense does not prevail at some point, and soon. To put matters in context, it is clear from the asset schedule which is appended to the judgment of DDJ Airey that the total liquid assets available for division (excluding pension) may well be less than £90,000 if the parties are unsuccessful in securing planning permission in respect of the FMH. Even if that permission is granted, the available liquid assets are unlikely to exceed £577,000 and that is all that will be available to rehouse them both after a marriage which has lasted more than 30 years.
Following the conclusion of the hearing on 26 March 2014, judgment was reserved. It was handed down to the parties and their advisers in written form on 19 May. It provoked a series of written questions from Mr Lyon (who represents H) seeking clarification of some aspects of the decision. Those questions were addressed by the DDJ in a letter dated 6 June 2014.
H filed an appellant's notice on 9 June 2014, together with Grounds of Appeal. Notwithstanding the absence of a sealed order at that stage, he sought to challenge:
i. the quantum of the periodical payments order made in W's favour;
ii. the retention by W of the inheritance she had received from her late father's estate and any potential future inheritance she might receive from her mother's estate in the event of her death;
iii. the sole conduct of sale of the former matrimonial home which was left in W's hands; and
iv. the division of the bank accounts which had resulted in a lump sum order in her favour of just over £10,700.
In terms of the relief sought in the event of a successful appeal, H sought a reduced maintenance obligation which reflected his own income needs; an equal share in W's inheritance from her late father and from her mother in due course; a recalibrated payment to equalise the bank accounts; and joint conduct of sale in relation to the marketing exercise which was to be undertaken in relation to the FMH.
On 2 July 2014 (per bundle index), W issued a Respondent's Notice whereby she sought to challenge the equal division of the balance of the net proceeds of sale of the Barn and the adjoining land. Whilst not specifying her capital target in relation to housing, she sought an uplift to reflect the finding made by the DDJ that H had a mortgage capacity of £340,000 (a figure predicated on a multiplier of net income x 2). She also sought permission to appeal the refusal of the DDJ to secure the award of periodical payments in her favour in the sum of £100,000. In addition, W indicated that she would be applying to permission to adduce fresh evidence at the appeal in relation to H's failure to comply with the lump sum orders made by the DDJ and by Cobb J on 16 July 2014.
On 16 July 2014, the cross-appeals were listed for directions before Cobb J. After hearing argument, he made an order to the effect that H's proposed appeal would be listed for an inter partes permission hearing with appeal to follow provided that he complied with two conditions. The first was the payment to W of the capital orders made by the DDJ; the second was the payment to her of 50% of the spousal periodical payments with effect from 9 June 2014. Permission to appeal the order giving W sole conduct of the sale of the FMH was refused. Directions were made for the filing of skeleton arguments in relation to the substantive appeal and cross-appeal and a schedule was agreed in relation to the contents of the appeal bundle. With the exception of the transcript of the oral evidence (which has not been made available), all the relevant documents have been provided within the two court bundles which were available to me, and I have read the contents of both.
I have also had the benefit of reading three skeleton arguments filed on behalf of H by Mr Lyon (dated, respectively, 23 June, 15 September and 24 September 2014) and two skeleton arguments filed by Mr Brooks on behalf of W (dated 10 September and 24 September 2014).
B. Background
The factual background is set out in detail in the written judgment handed down by the DDJ. Given that this is in the nature of an ex tempore judgment, I do not propose to rehearse it at any length, save insofar as is necessary to understand the context of his findings and my decision in relation to the cross-appeals.
At the date of the hearing, H was 53 and W 54. They married in April 1983. Some 30 years later, in February 2013, W issued a petition seeking dissolution of the marriage. At the same time, she launched her claims for financial remedy orders. Whilst it appeared that the matter might have been proceeding on a defended basis, H having issued an Answer and Cross-Petition in March and April of this year, good sense prevailed and Decrees nisi were pronounced on the basis of cross-decrees on 10 April 2014. They have yet to be made absolute.
There are two children of the family: F, 23, is financially independent of the parties. Her younger sister, P, is now 20 (but was 19 at the date of the hearing). She is part way through a law degree. At the time of the final hearing in March this year, both children were living with their mother at the FMH.
For a significant part of the latter years of the marriage, H has worked overseas in Dubai where he has enjoyed the benefits of an ex-patriate package which provides him with a tax free income and various allowances. He contends that the cost of acquiring and renovating the FMH, together with the costs of putting the girls through university, provided a financial imperative for living abroad apart from his family. Although part of their married lives together was spent in Dubai, W returned to make her home with the girls in England.
Since 2009, H has been employed by X CO in Dubai. There are several elements to his remuneration package. His salary (the fixed element from that employment) is £87,714 per annum. He is also paid an allowance in respect of the accommodation which he rents locally (just under £38,000 per annum) and to cover car expenses (just over £9,500 per annum which covers the cost of leasing and running a car for use in Dubai). Because these allowances are paid in local currency, they fluctuate from time to time. He has also received, at least for the last two years, a non-contractual discretionary bonus. In his Form E, he made his financial presentation on the basis...
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