H v H (Financial Provision)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SINGER,Mr Justice Singer |
| Judgment Date | 17 March 2009 |
| Neutral Citation | [2009] EWHC 494 (Fam) |
| Docket Number | Case No: FD06D00385 |
| Court | Family Division |
| Date | 17 March 2009 |
[2009] EWHC 494 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Singer
Case No: FD06D00385
Nigel Dyer QC (instructed by Manches LLP) for the Applicant Wife
Martin Pointer QC and Katharine Davidson (instructed by Alexiou Fisher Philipps) for the Respondent Husband
Hearing dates: 4, 5, 7, 11 and 12 February 2008
Approved Judgment
(Sgd.) Peter Singer
This judgment is being handed down in private on 17 th March 2009. It consists of 103 paragraphs and has been signed by the judge. The judge hereby gives leave for it to be reported in anonymised form only: see [3] below.
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.
Preamble
I heard these applications for ancillary relief over six days between 4th and 12th February 2008. The issues to which they gave rise are wide-ranging and I had no option but to reserve judgment. I had no reason to anticipate that it would not be until now, a year later, that I would be concluding preparation of that judgment. The parties would in the normal course of events long since have received this and been able to regulate their affairs in its light. But, as they know, I have in the intervening months sustained two successive and lengthy periods of ill-health which, I regret, have led to this delay.
I have received no information concerning either party or their personal financial affairs since final submissions concluded last year. I can only deal with the case upon the evidence and in the circumstances in which it was when I heard it. This judgment is therefore to be read as speaking as of that date.
The case concerns Mr and Mrs H (H and W). They were represented before me by Mr Dyer QC (for W) and Mr Pointer QC and Miss Davidson (for H). A large section of the controversy relates to H's situation as an employee of one or other company within an international financial conglomerate to which I will refer as ACo. Mr Blair QC appeared for ACo on the opening day of the hearing. Some of the information which I received is commercially sensitive from the point of view of ACo. Accordingly this judgment will only be available in anonymised form.
The formal applications before me, all launched by W, were (by application dated 12th May 2006) for the full range of ancillary relief, including adjustment of property orders for the five properties (three in London, one in Ireland and one in Spain) to which I shall refer. W also seeks periodical payments for the parties' child, which the court has jurisdiction to order notwithstanding the provisions of the Child Support Acts as W and the child are habitually resident outside the United Kingdom.
On 30th October 2006 W made application for maintenance pending suit, which was compromised at a hearing on 29th November 2006, no doubt based so far as W and her advisers were concerned upon information at that stage provided by H as to his income situation. The consent order provided for H to pay £7,500 per calendar month from 1st December 2006, and remains in force.
In relation to W's dissatisfaction with the disclosure made by H of his financial arrangements with ACo three inspection appointments took place before Mr Justice Charles on 10th December 2007, before Mr Justice Bodey on 11th January 2008, and subsequently before a deputy judge.
Only days before the final hearing commenced, on 28th January 2008, W issued an application to set aside pursuant to section 37 of the Matrimonial Causes Act 1973 what was alleged to be the reviewable disposition whereby H elected in April 2006 to have £1 million paid into an International Pension Plan (his IPP: see below). That application was, rightly, not pursued at the hearing before me.
Background
H and W were born and brought up in Ireland and met when in their early teens. That a serious relationship was well established between them by June 1997 is evident from the fact that W followed H to live in London once, in that month, he had moved here to take up employment with ACo. That employment continued at the time of the hearing before me.
The spouses celebrated what transpired to be an ineffective marriage in Spain in September 1998. Notwithstanding the technical (but obviously important) impediment that the ceremony was not validly recognised they clearly regarded themselves as married from that point onwards, and emphatically remedied the defect by 'remarrying' four years later in England in September 2003. Meanwhile their only child, a daughter, C was born in September 2001. There was no dispute but that I should treat marital cohabitation as having commenced in September 1998, preceded by some period of cohabitation.
Less free from controversy is the question when their cohabitation ceased. The break came after a disagreement in February 2005. The rights and wrongs of the break-up were not debated before me. W claims that the marriage lingered on until the summer of 2005, or even later. H claims that what indeed proved to be the permanence of their rupture can safely be dated from March or April, or at latest May 2005 when he purchased and moved to a new home in London. By then W and C were effectively living in Ireland, initially with H's parents. In their evidence H and W disagree about the duration and extent of the concluding phases, post February 2005, of their physical relationship.
Not only can I not divine where the truth lies on this, more to the point I do not believe anything turns on it. I suspect that H's account may be nearer the truth than W's, because she no doubt believes that her financial case is stronger the later she can establish the marriage lasted. Sadly this has been an application, both during its gestation in documentation and its investigation in oral evidence, where both H and W have undoubtedly (and sometimes deliberately) reprocessed elements of the history for perceived tactical advantage.
The marriage was no longer viable within weeks after the February 2005 arguments, in my view. W accepted in her evidence that marriage counselling efforts which followed were regarded by H as a means to help her to accept that the marriage was over, rather than to investigate the potential for its repair.
This then was a relatively short marriage comprising cohabitation over around seven years. More significant than its short duration ending when the parties were both in their early thirties, however, is the fact that W is likely to continue to be (as since the separation she has been) the primary day-to-day carer of C who will not reach the age of 18 until September 2019.
The employment history of the parties
From June 1997 H has been continuously employed by one or other company within the ACo conglomeration. His employer until April 2006 was an England-based company and since then has been an associated entity in Singapore. H trades, in London, as a broker in derivatives.
A somewhat simplified account of his very complex remuneration package over the years is as follows. From at least 1999 until April 2006 his pay was primarily made up of two elements: a basic salary (£100,000 p.a. in his November 1999 contract, raised to £250,000 from December 2003); plus a bonus payable quarterly and calculated as the sum whereby a percentage of the preceding quarter's revenue attributable to him exceeded the basic salary element. A further factor which might have come into play (but which, such was H's success, rarely did) was a guaranteed minimum annual bonus.
H's efforts (which involved long and, I have no doubt, punishing endeavour) were valued by ACo such that in May 2001 and in November 2003 they established (for him and for others) Employee Benefit Trusts (the 2001 EBT and the 2003 EBT) with which I later deal in more detail.
The last contract which followed the pattern I have described in the penultimate paragraph was that dated 15th December 2005. Its key elements were to continue the £250,000 basic pay and the fixed bonus calculation described above. In addition H was to receive £750,000 (described to me as a loyalty bonus) if he remained employed by ACo until the expiry of that contract on 31st March 2009. By side letter it appears that for a time in late 2005 and early 2006 he was entitled to receive that £750,000 entirely up-front. Indeed it is referred to by him and by others in internal communications as his 'up-front' or as his 'sign-on' payment. But (for whatever reason and as eventually was made clear—or became the case—at the end of a succession of contradictory side letters) H was entitled (if ACo agreed, which as it happens it always did) to draw down in anticipation of that entitlement, although he would be due to reimburse if indeed he left ACo's employment. That is a facility which, by the time of the trial, he had utilised to the tune of £605,000, so that there remained £145,000 (£86,000 after tax) available.
A further and now (as became apparent on day three of the hearing) contentious (as between H and ACo) element of the December 2005 contract was the provision for guaranteed minimum bonus (on the face of it, therefore, in addition to his basic £250,000 salary) of £750,000 in year one and £500,000 in each of years two and three. On this basis his guaranteed total...
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