G v B
| Jurisdiction | England & Wales |
| Judge | Mr Justice Blair |
| Judgment Date | 07 November 2013 |
| Neutral Citation | [2013] EWHC 3414 (Fam) |
| Date | 07 November 2013 |
| Court | Family Division |
| Docket Number | Case No: FD12D02043 |
[2013] EWHC 3414 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Blair
Case No: FD12D02043
Mr Ian Cook (instructed by Bircham Dyson Bell) for the Applicant
Ms Rebecca Bailey-Harris (instructed by Miles Preston) for the Respondent
Hearing dates: 21, 22, 23, 24, 25 October 2013
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment is being handed down in private on 7 November 2013 It consists of 17 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
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.
This judgment follows the hearing of the wife's application for financial remedies. The main assets are the former matrimonial home, and resources available to the husband from a Liechtenstein foundation. Both parties approach her claim as a needs case. The principal issues for decision are the quantum of her housing fund, the quantum of periodical payments for her and the child of the marriage, and the duration of the spousal maintenance component. The main factual dispute has been as to the extent of the husband's resources, the wife's case being that he has failed fully to disclose his assets.
In her s.25 statement, the wife made a considerable number of evidential points, which I have taken account of even if not expressly referred to below. The hearing took place over four days. Both wife and husband gave evidence. There was other evidence before the court in the form of reports from various experts, which were not the subject of challenge. The case for the respective parties was set out in concise written arguments, and the court was much assisted by a schedule of assets that (subject to the wife's non-disclosure case) was largely agreed for the purposes of this hearing. The husband's skeleton argument valuably contained references to the authorities, which were not in dispute.
History
The husband is now aged 62. His family moved to the UK when he was a child, though he is not domiciled here for tax purposes. He is described in the agreed chronology as a property investment manager, but he has never worked in what might be described as a conventional sense. His life appears to have been largely financed by his father who was described by Connell J in proceedings arising out of the dissolution of the husband's previous marriage as an astute business man with a successful track record. He had three children of that marriage who are now aged 25, 23 and 21.
The wife, now aged 46, is Russian. She graduated from Moscow State University with a degree in mathematics in 1991. She moved to Sweden, where she was employed in the insurance industry. She was married in Sweden, but divorced 2 years later. She is now a Swedish national.
The parties met in 1999, and in 2000 the wife moved to London. They disagree about when they started to live together, but it was at some point between 2000 and 2003, probably closer to the former. They lived in the husband's rented 3 bedroomed flats in Mayfair. They were married on 20 February 2004, and on 16 March 2004 their son M was born. Later that year, the parties moved to what is described in the evidence as a 3 bedroom penthouse at a rent of £1400 per week.
The husband is an only child, and a feature of this case, as in the previous case before Connell J, is his financial dependence on his father, Mr MB. This appears to have gone beyond simple finance. Connell J records him as saying that "my father is my brother, my God, my friend". The father had been a successful businessman in the property field, and lived the last 25 years of his life in Monte Carlo. While he lived, father and son talked on the phone daily.
With his father's support, the couple were able to enjoy a very good standard of living. It does not appear to be disputed that some £200,000 p.a. was drawn from the foundation by the husband. There is an issue as to the extravagance of their lifestyle. It is not in issue that the wife became friendly with a circle of wealthy Russians, and had an active social life. It was apparently suggested at an earlier hearing that they lived a "sub-oligarch" lifestyle. Whoever the wife's friends may have been, I am satisfied that the evidence does not support the view that their lifestyle came anywhere near the level of wealth implied by this term.
The establishment of the S foundation
By 2004, the husband's father was very poorly. He died on 27 January 2005. Over the period 2004 to 2005, a Liechtenstein foundation called the S Foundation was formed, and his father's assets were transferred into it.
There was considerable dispute at the hearing as to the timing of this process. In short, the husband says that the foundation was formed and the assets transferred prior to his father's death. The wife says that the assets were transferred after his father's death, and though the foundation had been formed in 2004, it was acquired posthumously as a vehicle "off the shelf" at the suggestion of his advisers.
However, to quote the husband's skeleton argument it is "fully acknowledged by him" that the assets of the foundation are 'financial resources' within the meaning of MCA s. 25(2)(a). As was made clear on behalf of the wife in closing, the issue goes to credibility, her case effectively being that he is lying about it.
Since both husband and wife gave evidence, counsel are agreed that I must set out my appraisal of them as witnesses. By way of a late request, the wife gave evidence initially through an interpreter, but was able after a while to give evidence in English with the occasional assistance of the interpreter. English is her third or fourth languages, and she speaks it very well, though not perfectly. She kept a diary throughout the marriage, and was able to cite dates of events which she considered important.
The husband claimed that she pried into his records to establish his financial position. In the case of the only document of which there was evidence in this respect at the hearing (a manuscript note with some figures which he wrote on the notepad of the New Midi hotel in Geneva), I am satisfied that she found this by looking through his papers, and not on the floor where it had accidently fallen as she claimed. However counsel took a pragmatic approach, and did not raise Hildebrand type issues.
In her evidence, she expressed her view that financial provision should be made which would enable her, their son and her mother (who came to stay with the parties at some point) to live in Kensington or Chelsea. She rejected any suggestion that she might live in Battersea close to her son's school, describing the borough as "rife with crime". She was reluctant to accept that the husband had obligations towards his three eldest children by his previous marriage.
On his part, the husband has not complied with previous court orders in two respects. He was in breach of an undertaking not to visit the former matrimonial home between the hours of 8pm and 8am, although he explained that he did so in order to let M into the house in his wife's absence. He has not been complying with an order to make periodical payments by standing order, instead doing so by cheque, the most recent of which has not been provided. It is accepted on his behalf that he was voluble and emotional, and I would add that his evidence was imprecise and unfocused.
I am sure that the manner of both parties' evidence was largely due to the stress of the proceedings, and I mean no disrespect to either husband or wife in saying that I consider that neither of them was particularly reliable as a witness. However it does not follow that their evidence was untruthful, and in some important respects, when assessing it against other evidence where available, I have accepted the evidence of one or other of them.
With that in mind, I turn to the establishment issue. The material concerning the establishment and governance of the S Foundation that I have seen is not extensive. Statutes have been produced which show that the foundation was established on 30 March 2004. However, there is no indication as to who the beneficiaries may have been, if indeed there were any at that stage. This document proves nothing as to when the father's assets were transferred into the foundation.
The funeral of Mr MB took place on 3 February 2005. On 20 February 2005, husband and wife travelled together to Geneva where his late father's advisers and bankers were based. A letter dated 19 February 2005 was typed by the wife to the effect that, in the absence of a will, her husband expected an equal allocation between his two families, that is, his wife and M, and the three children of his previous marriage. It is pointed out on behalf of the wife that the list of contacts given in the letter includes no reference to the foundation or any officer of the foundation.
The wife's case is that the suggestion of a Liechtenstein foundation as a vehicle for holding his late father's assets were made by the advisers at that time. She says that her husband was excited by this proposition, and duly reported it to her.
In her s. 25 statement dated 3 October 2013, the wife says that she "…was with [the husband] at the...
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