G and G (Needs, Discovery and Coercive Control)
| Jurisdiction | Northern Ireland |
| Court | King's Bench Division (Northern Ireland) |
| Judge | Master Bell |
| Judgment Date | 09 April 2024 |
| Neutral Citation | [2024] NIMaster 5 |
1
Neutral Citation No: [2024] NIMaster 5
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: 2024NIMaster5
ICOS No:
Delivered: 09/04/2024
IN THE HIGH COURT OF JUSTICE OF NORTHERN IRELAND
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FAMILY DIVISION
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BETWEEN:
G
Petitioner;
and
G
Respondent.
(Needs, Discovery and Coercive Control)
------
Miss Trainor (instructed by King and Boyd) for the Petitioner
Miss Brown (instructed by Flynn & McGettrick) for the Respondent
------
Master Bell
[1] On the face of it this is a simple case. The wife seeks 100% of the equity
in the matrimonial home together with a 38.6% share of the husband’s
pension. On the other hand, the husband argues that the equity in the home
ought to be divided on the basis of the wife receiving 65% and him receiving
35% and that there ought to be a 21% pension sharing order. Nevertheless,
despite the apparent simplicity, the decision in this case required the
consideration of a number of issues, namely the general principles to be
applied in ancillary relief proceedings, the needs-based approach, the
importance of discovery, and whether the evidence demonstrated the
2
existence of coercive control. I shall deal with the law on the first three of
those matters before I summarise the evidence. Once I summarise the
evidence, I shall consider the Article 27 factors which were relevant in this
case and, when dealing with the factor of conduct, I will explain why it was
necessary to consider the issue of coercive control and why I concluded that it
had not been present in this case.
GENERAL PRINCIPLES TO BE APPLIED
[2] Miss Brown submitted that this was a needs-based case. Miss Trainor
submitted, on instructions, that this was not a case to be decided on the basis
of the needs-based approach but rather one which ought to be decided on the
basis of the sharing principle. This disagreement provides a useful
opportunity to restate the fundamental principles which apply in ancillary
relief proceedings.
[3] In WC v HC [2022] EWFC 22 Peel J summarised, in a Mostynesque
fashion, the principles which are to be applied in ancillary relief applications:
“The general law which I apply is as follows:
i) As a matter of practice, the court will usually embark on a
two-stage exercise, (i) computation and (ii) distribution;
Charman v Charman [2007] EWCA Civ 503.
ii) The objective of the court is to achieve an outcome which
ought to be "as fair as possible in all the circumstances"; per
Lord Nicholls at 983H in White v White [2000] 2 FLR 981.
iii) There is no place for discrimination between husband and
wife and their respective roles; White v White at 989C.
iv) In an evaluation of fairness, the court is required to have
regard to the s25 criteria, first consideration being given to
any child of the family.
v) S25A is a powerful encouragement towards a clean break,
as explained by Baroness Hale at [133] of Miller v Miller;
McFarlane v McFarlane [2006] 1 FLR 1186.
vi) The three essential principles at play are needs,
compensation and sharing; Miller; McFarlane.
vii) In practice, compensation is a very rare creature indeed.
Since Miller; McFarlane it has only been applied in one first
instance reported case at a final hearing of financial remedies,
a decision of Moor J in RC v JC [2020] EWHC 466 (although
3
there are one or two examples of its use on variation
applications).
viii) Where the result suggested by the needs principle is an
award greater than the result suggested by the sharing
principle, the former shall in principle prevail; Charman v
Charman.
ix) In the vast majority of cases the enquiry will begin and
end with the parties' needs. It is only in those cases where
there is a surplus of assets over needs that the sharing
principle is engaged.
x) Pursuant to the sharing principle, (i) the parties ordinarily
are entitled to an equal division of the marital assets and (ii)
non-marital assets are ordinarily to be retained by the party
to whom they belong absent good reason to the contrary;
Scatliffe v Scatliffe [2017] 2 FLR 933 at [25]. In practice, needs
will generally be the only justification for a spouse pursuing a
claim against non-marital assets. As was famously pointed
out by Wilson LJ in K v L [2011] 2 FLR 980 at [22] there was at
that time no reported case in which the applicant had secured
an award against non-matrimonial assets in excess of her
needs. As far as I am aware, that holds true to this day.
xi) The evaluation by the court of the demarcation between
marital and non-martial assets is not always easy. It must be
carried out with the degree of particularity or generality
appropriate in each case; Hart v Hart [2018] 1 FLR 1283.
Usually, non-marital wealth has one or more of 3 origins,
namely (i) property brought into the marriage by one or other
party, (ii) property generated by one or other party after
separation (for example by significant earnings) and/or (iii)
inheritances or gifts received by one or other party. Difficult
questions can arise as to whether and to what extent property
which starts out as non-marital acquires a marital character
requiring it to be divided under the sharing principle. It will
all depend on the circumstances, and the court will look at
when the property was acquired, how it has been used,
whether it has been mingled with the family finances and
what the parties intended.
xii) Needs are an elastic concept. They cannot be looked at in
isolation. In Charman (supra) at [70] the court said:
"The principle of need requires consideration of the
financial needs, obligations and responsibilities of the
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