FF v KF
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 12 May 2017 |
| Neutral Citation | [2017] EWHC 1093 (Fam) |
| Docket Number | Case No: MA13D01518 |
| Court | Family Division |
| Date | 12 May 2017 |
[2017] EWHC 1093 (Fam)
Mr Justice Mostyn
Case No: MA13D01518
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Robert Peel QC (instructed by Camilla Baldwin) for the Appellant
Patrick Chamberlayne QC (instructed by Sears Tooth) for the Respondent
Hearing dates: 11 May 2017
This judgment was delivered in private. The judge directs that this anonymised version of the judgment may be published. No report of the case may identify the parties.
I shall refer in this judgment to the appellant as "the husband" and to the respondent as "the wife".
On 30 August 2016, His Honour Judge Wallwork gave his principal judgment. Following requests for amplification from both parties he gave a supplementary judgment on 29 March 2017. This is my judgment on the appeal by the husband against both judgments.
The appeal was listed to be heard "in open court". This was an administrative error. Appeals to the High Court from the Family Court are governed by FPR 27.10. Thus, the default position is that they are heard in private, but representatives of the media may attend by virtue of FPR 27.11 and PD 27B. Should they do so, then in a case concerning children, section 97 of the Children Act 1989 will prevent identification of the child. In any event, a reporting restriction order preventing identification of the parties and of their financial affairs may be made (see Appleton v News Group Newspapers Ltd [2015] EWHC 2689 (Fam)). In this case no order was made under rule 27.10 on the granting of permission directing that the appeal be heard in open court. I was not asked to make such an order, and I heard the case, in the usual way, in private. I have decided that there is no good reason why the parties should be identified, and that therefore this judgment should be anonymised.
By virtue of FPR 30.12(3)(a) this court may only allow the appeal if it is satisfied that the decision below was "wrong" (the husband does not argue that rule 30.12(3)(b) applies). Where the decision below is the result of the exercise of a discretionary power, and where there is no complaint about the findings of fact made, the appellant demonstrates wrongness by showing that the discretion miscarried. A miscarriage will be shown where the court has failed to apply binding authority or otherwise erred in principle; or has taken into account irrelevant matters; or has failed to take into account relevant matters; or has failed sufficiently to set out its reasoning.
The husband is now 65, and the wife is now 38. They commenced their relationship in 2004. They became engaged and a marriage ceremony was fixed for 27 December 2007. However, three days before the ceremony the husband called it off, with the consequence that the wife, who is Ukrainian, had to leave the country. In October 2010 the parties rekindled their relationship. They resumed cohabitation in April 2011. They married in Las Vegas on 3 October 2011. They separated on 23 September 2013. So, the actual marriage was for less than two years, although the most recent period of cohabitation was for 2 1/2 years. However, the parties' relationship stretched over nine years punctuated by a separation of three years. Everyone seems to have been content to have characterised this as a "short marriage", although I do not find that label helpful in determining this appeal.
In his judgments, the judge sets out the significant aspects of the evidence. I highlight the following:
i) The husband is a very rich man having assets valued in the region of £37 million, virtually all of which was liquid or capable of being easily liquidated. The great majority of this predated the marriage although the judge found that a little over £2 million had arisen during the marriage.
ii) The parties enjoyed a very high standard of living. They had three homes in Cheshire, Knightsbridge and Marbella with a combined value of over £5 million.
iii) The wife had suffered serious psychological harm as a result of the married life and its breakdown. This was diagnosed by a consultant psychiatrist instructed as a single joint expert. The wife was not raising conduct or casting blame but her medical condition was an undisputed fact. She left this marriage in a condition of great damage and vulnerability. As such the future for her, particularly in relation to any earning capacity, was very uncertain.
This case was heard in Manchester over five days in June 2016. Swathes of evidence and time were devoted to an enquiry as to the scale of the marital acquest, which with hindsight seems almost completely irrelevant and unnecessary. The wife's case was that the acquest amounted to just over £3 million. Given that the husband's open offer was for more than half of that figure one can see that this was always going to be from first to last a needs case. Indeed, both parties' open positions were predicated on an assessment of the wife's needs and so it is very difficult to understand why the court allowed this elaborate enquiry to be played out.
The wife's open position was that she should be awarded a lump sum of £6 million on the clean break basis. Given that she had debts of just under £300,000, principally of costs, this would leave her with £5.7 million. Of this she aspired to spend approximately £2.6 million on a two bedroom flat in Marylebone and to meet other capital requirements, leaving £3.1 million as income fund. On a full life Duxbury basis this this would provide around £120,000 net spendable annually. This was to be compared to her annual budget of £165,000.
The husband's open position was also on the clean break basis, and was for a lump sum of £1.75 million. After payment of the debts of £300,000 this would leave her with £1.45 million. She could spend around £500,000 purchasing a property leaving, as the judge put it, "a little less than £1 million to meet income and other needs".
By the time it came to closing submissions the husband's then leading counsel accepted that the wife deserved £950,000 to purchase a property in Cheshire. She said that an award "approaching £2 million" would be fair and reasonable. This would seem to suggest, after account is taken of the wife's debts, that the husband was conceding that around £800,000 for the income fund was reasonable. In that regard his leading counsel said "the husband's case represents a discounted award in respect of capitalised maintenance". I take this to mean that the husband accepted that a capitalised award in respect of the income requirement was justified but that it should not be on a full life Duxbury basis.
It can thus be seen, notwithstanding the distraction of the arguments about marital acquest, that the architecture of the two cases presented to the judge was identical. Both parties accepted that the wife should receive a lump sum on the...
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