J v J (Ancillary Relief: Periodical Payments)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Bennett,Mr Justice Bennett |
| Judgment Date | 23 January 2004 |
| Neutral Citation | [2004] EWHC 53 (Fam) |
| Court | Family Division |
| Date | 23 January 2004 |
| Docket Number | Case No: FD02DO3334 |
[2004] EWHC 53 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The Honourable Mr Justice Bennett
Case No: FD02DO3334
Nicholas Mostyn Q.C. and Deborah Bangay (instructed by Clintons) for the Applicant
Nicholas Francis Q.C. and Brent Molyneux (instructed by Alexiou Fisher Philipps) for the Respondent
Hearing dates : 12 to 15 January 2004
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 23 January 2004. It consists of 28 pages and has been signed and dated by the judge. It may be shown to the parties upon its receipt by Counsel.
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.
Mr Justice Bennett :
At an FDR held on 24 March 2003 Mrs JS (to whom I shall refer as "the wife") and Mr JL (whom I shall refer to as "the husband") agreed on what capital provision should be made for her. They were unable to agree the rate of her periodical payments. Accordingly the wife's application for periodical payments for herself and the three children of the family came on for hearing before me on 12 January 2004. The consent order made in March 2003 was upon the basis that the wife and the husband agreed that the transfer of property and lump sum order was to be in full and final satisfaction of each of the parties' claims for capital provision against the other. The husband was ordered forthwith to cause the transfer to the wife of the former matrimonial home and a property in Norfolk. Further by the 6 May 2003 the husband was to pay the wife a lump sum of £250,000. Upon completion of the said transfers and payment of the lump sum each of the parties' claims for further property adjustment, lump sum or pension sharing orders were to stand dismissed. It was agreed that maintenance pending suit would be paid at the rate of £100,000 paid per annum paid monthly in advance from 1 April 2003, a global interim provision for the wife and the children. The husband has complied with all aspects of the order recited above
The total capital assets as at the date of the FDR were approximately £3 million. The value of the transfer for the former matrimonial home was approximately £850,000 and the property in Norfolk £20,000. Accordingly together with the lump sum the wife received £1,120,000 or roughly just over 37% of the total assets. It is said by Mr Mostyn Q.C., on behalf of the wife, that the wife accepted a departure from equality in the capital settlement for three reasons. First, in Lambert v Lambert [2002] EWCA Civ 1685, [2003] 1 FLR 139, the concept of special contribution was left open for a narrow class and superstar footballers were mentioned as potential candidates for such an accolade. Second, the length of the marriage warranted some departure from equality even though the parties had three children. Third, a sum of £342,651 of the assets was represented by the illiquid fund of the husband's football pension.
Mr Mostyn asserted that, under current English law, the proper resolution of this case should give the wife just over 37% of the husband's average income, i.e. £1.19 million pounds. Thus the Court should order periodical payments for the wife and the three children in the global figure of £444,000 p.a. Such provisions should run from the 24 March 2003 with credits for sums of periodical payments already paid. Further, in June 2005 the husband's contract with X.F.C will run out. The periodical payments thereafter should correspond to just over 37% of the husband's then net income after tax. By contrast, the husband's open position, as set out by Mr Francis Q.C., is that the global figure for periodical payments for the wife and the children should be at the rate of £120,000 per annum.
I shall now set out the facts. I have heard the oral evidence of the wife and the husband. Each has made for me statements and sworn various affidavits. I have also had the benefit of two reports of Ms Julia Walker ACA, an expert accountant instructed by the wife, of 24 March 2003 and 7 January 200She was not required to give oral evidence.
The wife is now aged 33 having been born in June 1970. The husband is now 30 years old, having been born in March 1973. The wife left school when she was 16 years old with no GCSEs. She had various jobs and when she met the husband in February 1990 she was working for a firm of opticians in Romford. The husband was an apprentice footballer having signed for X.F.C in July 1989. He was then playing in the reserves. At the time they met, the wife was 20 years old and the husband was 17 years old. Their relationship quickly developed. They did not co-habit but lived at the home of their respective parents. Nevertheless it is apparent that the wife spent a considerable number of nights with the husband at his parents' home generally at weekends and sometimes during the week.
In March 1991 the husband was engaged by X.F.C as a full time professional. He made his debut with the first team in January 1992. From then on his financial fortunes improved considerably.
At the end of 1994 it is common ground that the wife gave up her work with the opticians in Romford and has not worked since. She was unhappy in her work and wanted to give it up. She told me that the husband made her give it up. Nevertheless when cross-examined she accepted that she was content to give up the work because of disagreements with her boss. Having listened carefully to both the wife and the husband give evidence I am satisfied that, albeit the wife wanted to give up work, she was encouraged to do so by the husband and that thereafter she became financially dependant upon him.
In the summer of that year whilst on a holiday in the U.S.A. following the World Cup the wife and the husband became engaged to be married. Indeed the ring had been purchased before they went to the United States. However, they did not start to co-habit until May 1995 when their first home was purchased. By that time the wife was pregnant with their first child. C was born on 19 October 1995 and is therefore 8 years old. They talked about marrying at that stage but it was, as will become apparent, delayed until June 199At paragraph 2.6 of the wife's affidavit of 5 March 2003 she said:-
"As was to be the habit during our relationship, L managed all our finances and I took little interest. My job was to run the home and to ensure all his needs were catered for. At no time during our relationship did I ask about what he earned. Money was never an issue between us throughout our relationship. He paid all the bills and gave me cash as and when I needed it."
On 26 October 1997 their second child, F, was born, who is now 6 years old. They decided to buy a larger house. They purchased the matrimonial home. They retained their previous house intending to let it out, but that was not sold until December 2001.
On 5 June 1998 the wife and the husband married and went on honeymoon to Antigua.
On 15 May 1999 their third child G was born and she is therefore now 4 1/2 years old.
In October 2001 the wife and the husband went to Portugal and the husband agreed to purchase a villa costing some £650,000 and three apartments as investments for each of the three children. The wife told me in evidence that the villa was purchased as a holiday home and as a possible future home for them when the husband could no longer continue as a football player.
Shortly thereafter in November 2001 the husband left the matrimonial home and the parties have not lived together since.
In May 2002 the wife began divorce proceedings on the grounds of the husband's adultery. The petition was undefended and a decree nisi was granted on 20 August 2002. The decree was made absolute on23 May 2003.
I now turn to the wife's present situation. She is a full time mother of three children aged 8, 6 and 4. I am satisfied that she bore the brunt of bringing the children up whilst the parties co-habited. Furthermore it is obvious that she will have to bear the burden of bringing them up during their childhood. Thus by the time the youngest child is 16 the wife will have had a further 12 years of caring for the children. If the youngest remains at home until she is 18 then the period would be 14 years. That I recognise at once is, together with her past caring for the children, an enormous contribution. I am satisfied too that she has no earning capacity. She told me in evidence that she made no sacrifices in giving up her work with the opticians in 1994 nor has she been disadvantaged in staying at home. She accepted that she had not given up any career. There is no dispute, as I understand it, that the wife was a marvellous mother and ran the household efficiently and looked after the children and the husband to the very best of her considerable ability.
From a capital point of view the wife is well taken care of. She has two mortgage free properties and has received a lump sum of £250,000. Although she has a boyfriend who has a child of his own, she has told me, and I accept, that she has no intention of marrying him.
As to the husband's present situation, he is living with his partner by whom he has had a child now 1 year old. He, as I have said, is a professional footballer with X.F.C. During...
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