D v D
| Jurisdiction | England & Wales |
| Judgment Date | 11 March 2010 |
| Neutral Citation | [2010] EWHC 138 (Fam) |
| Docket Number | Case No: MA06D00505 |
| Court | Family Division |
| Date | 11 March 2010 |
[2010] EWHC 138 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Manchester District Registry
Mr Justice Charles
Case No: MA06D00505
Nicholas Francis QC and Nicholas Bennett (instructed by Pannone) for the Applicant
Ann Hussey QC (instructed by Jones Myers LLP) for the Respondent husband
Hearing dates: 11 and 14 to 17 December 2009
Draft circulated 2 February 2010
Charles J
Introduction
I shall for convenience refer to the parties as the wife and the husband. The wife seeks an order for ancillary relief. The main assets are (i) a private company (the Company) and therefore the case raises a number of the difficulties associated with such an asset, (ii) the old matrimonial home and (iii) the husband's new home.
At the PTR I directed that each side should "plead" their case. They did so, and I found this to be a helpful exercise.
General background and current circumstances
The parties were married on the 25 th January 1986. There had been one year of pre marital cohabitation. On marriage the wife was aged 29 and the husband 26. The wife is now 53 and the husband 49. There are two children of the marriage a boy aged 20, and a girl aged 18. The children were privately educated and are supported financially by their father. Both children are at University.
At the time of the marriage the wife was employed fulltime as a manageress at an Early Learning Centre and the husband was a farmer. The husband had joined the family farming business when he was 16 and then went to Agricultural College returning in 1981, aged 21, having graduated. At the time of the marriage he was fully engaged in the business which included farming at CH Farm where he lived and had a tenancy which the landlord had granted to him (not the Company) some 2 years earlier.
The first matrimonial home was the tenanted CH Farm House. In 1994 the parties bought CG Farmhouse, which was their last and only owned matrimonial home (the matrimonial home). The surrounding farm land (CG Farm) was purchased by the Company. The wife remains living at the matrimonial home.
The matrimonial home is set in 1.05 acres of garden together with a further paddock of 3.49 acres. It was valued as at 8 October 2009, by jointly instructed valuers, at £975,000 (£945,750 net of selling costs). The valuation excludes outbuildings which are owned by the Company. It is free of mortgage and until 2012 subject to a claw back in the event of development.
The husband moved out of the matrimonial home in November 2003. Initially he lived in a rented property. In November 2006 he purchased a home for £499,000 using a deposit of £160,000 and raising the balance by way of mortgage. He intends to remain living at that property (the husband's home). That property has been valued at £499,000 and net of mortgage (£261,331) and selling costs at £223,100.
The wife filed her petition and Form A in May 2006. Decree Nisi was granted in August 2006. There is as yet no Decree Absolute.
The Company
The Company was incorporated in April 1952. Prior to that the farming business that became the Company's business had been operated as a partnership between the husband's father, uncle and grandfather.
Earlier history is:
i) The husband's Great Grandfather and Grandfather purchased a farm, GE Farm, of which they had been the tenants. They traded in partnership and this farm is now owned by the Company.
ii) The husband's father joined his father and grandfather in their farming business at GE Farm. (I do not know when the husband's uncle joined and left, but this does not matter).
iii) In 1947, the husband's grandfather acquired a tenancy of WE Farm for growing fruit and the family farming business started one of the first "Pick Your Own" fruit enterprises in the area at that farm.
iv) In 1951, the husband's father went to America on a Nuffield farming scholarship and studied the growing of vegetables. He was there for under a year but acquired useful knowledge and experience from more advanced and different methods that were used in America (in this context broccoli and rhubarb were specifically mentioned in the evidence).
The shareholdings on incorporation were 14,250 shares divided between the husband's father (42%), his uncle (42%) and his Grandfather (16%). I do not know how his uncle's shares devolved, but this does not matter.
The current share holding in the Company is that the husband holds 85.65% and his mother owns the balance (14.35%). The acquisition of his shares by the husband has been by way of gift and can be summarised as follows:
| Date | No. of shares |
| Source |
| 28.10.77 | 1500 |
| Cousin |
| 07.04.82 | 500 |
| Mother |
| 03.04.83 | 500 |
| Mother |
| 19.03.91 | 1144 |
| Grandmother |
| 30.04.94 | 5538 |
| Father |
|
| 9182 |
|
|
The husband's percentage shareholding was increased when, in 1995, the Company bought 3645 shares held by his brother for a sum of £965,500 payable over two years. Thereafter, his brother played no part in the family business and sadly was subsequently killed in a motor cycle accident in 2000.
The husband's father died in July 2009 and his shareholding passed to his widow. Up to his death he had maintained an active and, I was told and accept, an influential involvement in the business. The husband's mother takes no active part in the day to day running of the business save that she discharges her responsibilities as Company Secretary.
As can be seen from this history the husband is now the majority shareholder and since the death of his father has been the only director responsible for the day to day running of the Company's business. It is therefore now effectively his company (although he said that he thought that his mother may leave her shares to his children rather than to him). Through it he still farms the farm bought by his Great Grandfather and Grandfather in 1926 (GE Farm) and the farming heritage of his direct male line at that farm and in the area can be traced back to 1815 and his Great Great Grandfather.
The Company's business now has three component parts, namely:
i) farming (mainly vegetables but also cereal and a traditional rhubarb crop),
ii) packing, i.e. mainly packaging for supermarkets, and
iii) a processing unit which in broad terms washes, chops and packs vegetables for supply to amongst others the producers of ready made foods, supermarkets, schools, and restaurants.
The husband provided helpful maps (agreed by the wife) showing the land owned and farmed by the Company now, and their dates of acquisition. The maps also show land that is tenanted by the Company now, but not that tenanted over the years. The tenanted land played no part in the valuation of the Company for the purposes of these proceedings. Also its role over the years, and in the future, was not gone into in any detail. The Company now owns and is the tenant of land to the east and west of W. The land to the west was all acquired during the marriage.
To the east of W:
i) In the 1950s, the Company owned and farmed GE Farm and some small areas very close by, and also some tenanted land further away (that was later bought in 1996).
ii) In the 1960s, it rented a smallish area of land very close by.
iii) In the 1970s, it bought three areas of land slightly further away (the largest of which is some 121 acres).
iv) In 1983, CH Farm was rented initially by the husband and later by the Company. This is very close to GE Farm.
v) In 1987, the Company bought HH Farm.
vi) In 1990, the Company bought a business YRG, which was renamed, and in 1991 sold a small area of land to assist in funding that purchase.
vii) In 1993, the Company bought further land abutting CH Farm and very close to GE Farm.
viii) In 2002, the Company became the tenant of a farm close by (it abuts HH Farm). That tenancy expires in 2012. The Company has no security and has been told that the owner is contemplating a sale of the land.
The packing and processing operations are also based to the east of W and very close to GE Farm.
The packing operation comprises a range of steel portal frame buildings with parking facilities and a vehicle storage yard. The plant now has an internal area of some 45,000 square feet and has three main units. The Company bought the original pack house in 1991 and the husband was given the responsibility by his father of running this new facility. The husband's brother was then also working in the business, mainly on the farming side. This new venture was successful and to upgrade its operation the Company extended its site and built a new pack house in 1999. And it built a new cold store in 2003.
The packing operation became and remains integral to the sale / marketing of the vegetables grown at the farms owned and tenanted by the Company. The provenance of the crop is important, as is quality and its packaging. The main customers are supermarkets. They are demanding customers in a number of respects, for example, as to quality, price and the terms and timings of their orders / contracts.
The diversification into processing commenced in July 2004 with the acquisition of a company involved in that business for £100,000. In 2005, the Company bought the site at which the processing unit is now based (the OG Site) and invested around £3m (the exact figure was not established and does not matter) in buying and equipping the processing plant.
As I have mentioned, all of this land and the operational base of the Company is to the east of W and centred on GE Farm which has been in the husband's family (directly or through a family company) for generations and the packing and processing units are very close to it.
The land to the west of W was, as I have mentioned, all acquired and let after the marriage:
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