JS v RS
| Jurisdiction | England & Wales |
| Judge | Sir Peter Singer |
| Judgment Date | 06 November 2015 |
| Neutral Citation | [2015] EWHC 2921 (Fam) |
| Docket Number | Case No: GL13D01112 |
| Court | Family Division |
| Date | 06 November 2015 |
2015 EWHC 2921 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Peter Singer
Case No: GL13D01112
Mr Frank Feehan QC (instructed by Banks Kelly Solicitors) for the Applicant Wife
Mr Jonathan Southgate QC and Mr Robin Rowland (instructed by Harrison Clark Rickerbys Ltd) for the Respondent Husband
Hearing dates: 11 to 14 May and 6 November 2015
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 6 November 2015. It consists of 77 paragraphs and has been signed and dated by the judge.
Signed: [Peter Singer] Dated: 6 November 2015
Introduction
I shall refer to Mr and Mrs S as H and W notwithstanding that their marriage ended in December last year. They are aged 42 and 43 respectively and have no children.
Each party comes from a relatively modest financial background. Each of them worked hard to achieve the qualifications and experience which each of them brought to their relationship at the start of the six years for which their cohabitation and marriage lasted. W since before the parties met worked continuously for one employer and proved her value as a trader in a particular sector of the wholesale fuel trade. H was from before they met in mid-2007 continuously till October 2012 employed by an international company involved with IT. Their basic salaries were not very different in the early years of their cohabitation, around the £100,000 p.a. mark. But there was this significant difference, that W received discretionary annual bonuses until her trading activity recently became limited as a result of developments which affected her industry. For the central 5 years of their relationship W's bonuses totalled £10.5M, whereas any bonuses H's employment brought were comparatively trivial. The parties were both continuously employed until in October 2012 H took voluntary redundancy in circumstances which have been the source of one of the many challenges and disputes in this case.
The parties commenced cohabitation in rented accommodation at about the end of 2007, became engaged to marry in August 2008 and did so in June 2009. In anticipation of that marriage in November 2008 they purchased their first home, SD, in a Gloucestershire town. The property was purchased outright in joint names with funds, some £1.02M, provided exclusively by W. That figure includes some £200,000 spent on extensive works to the property undertaken over a number of months so that they did not actually move in until a couple of months before their wedding. But while they were on honeymoon it was extensively damaged and the consequent repairs made it impracticable for them to resume living there until about January 2010.
It was in October 2012 that the parties surrendered to the attractions of a house I shall call LC which had just come on the market at an asking price of £2.25M. They saw it and made an offer of £2M which was accepted. Speedy contract exchange was one of the vendors' requirements but there were some conveyancing complications which delayed the sale until March 2013. Meanwhile and for some months thereafter the parties remained living at SD while work was done to suit LC to their taste. He says the works were extensive: she says they were cosmetic. Either way they cost a good deal of money which, together with the purchase price, was again provided by W. LC also was purchased outright and acquired in the parties' joint names. H maintains that as with SD (but even more so given that he was now redundant) he assumed a lead role in the organisation and supervision involved in carrying through the work done to LC. W maintains that he has exaggerated his input and its value. I will say very little about this dispute save to underline its essential futility in the context of this case.
They moved in to LC in September 2013. SD was then placed on the market for sale at an initial asking price of £1.25 million but even successive reductions did not attract a purchaser. The single joint valuation attributed for the purpose of these proceedings to SD is £1.1 million, and to LC £1.5 million. Both parties are naturally disappointed as sales at these prices would not in effect recoup the money lavished upon them, and indeed in the case of LC would amount to a large loss.
As described, the parties agreed to purchase LC in October 2012 and it was not long after that when difficulties in their marriage which had led to their living increasingly separate social lives and becoming emotionally distant from each other developed an extra dimension. By late 2012 or the beginning of 2013 what H says started as an acquaintance resumed between him and another woman whom I will call C developed to the point where by February 2013 they spent a clandestine holiday together in Dubai. Wind of the affair came to W. H through lies and subterfuge parried her accusations and enquiries. W filed her divorce petition in early December of that year. Their physical separation did not take place until H moved out in July 2014. He has since been living at SD and W has continued to live at LC. He did not come clean about the Dubai trip until a court hearing in December 2014, and by then had committed himself to a number of lies and evasions in relation to the nature of their relationship and the true assignation of a number of suspicion-arousing credit card entries. More revelations were not to come until he gave evidence before me. "Not wanting to upset her" if at all true as his rationale may have been an unsuccessful tactic: such obduracy in the face of her well-founded belief concerning this area of his behaviour may have made her more upset than a frank admission would have, and to some extent may have induced W to cast the net of her suspicions wider than was either reasonable or objectively supported by anything more than mere conjecture.
The parties' polarised positions
They are virtually a gulf apart apart from the fact that both agree the outcome should be on a clean break basis, as must be right. The order which I make shall moreover include the exclusion of any claim by their survivor against the estate of his or her deceased former spouse.
Although this started in form as W's application for all forms of financial remedy, until the commencement of the final hearing before me what she in substance sought was the transfer to her alone of the parties' two successive matrimonial homes, and for the court to fix what H should receive from her in return for that redistribution and for the final financial disengagement which a clean break would bring. She suggested that £400,000 (in addition to what he otherwise has: on the figures a negative balance) would purchase outright a suitable home after a marriage of these dimensions for a man who at the commencement of their relationship had only a modest beneficial interest in a mortgaged flat which when sold in 2011 realised net only about £11,000. By the time for final submissions however her enhanced proposal was to transfer SD unencumbered to him and in addition to pay a lump sum of £130,000 which would have been sufficient to meet his outstanding costs liabilities to his legal team. Throughout she has contended that nothing should be done to reflect the disparity in the value of their respective pension schemes. Including their worth at the commencement of the parties' cohabitation by the time of the hearing W's in aggregate had a value some 5.75 times greater than his: in round figures £800,000 against his £140,000.
H by contrast seeks to leave this marriage and these proceedings with £3M (and would wish to keep SD as part of that).
In addition H seeks the transfer to him of the benefit of 23.8% of her pensions, that being the stake in them which a pensions expert instructed by H alone has determined would be required to achieve equality of benefit between the two of them in relation to the increase over the span of their relationship which there has been in their respective pensions. The calculation was not challenged although, as indicated above, the principle most certainly was. To put this into context, in CETV terms this would involve an order that H should share in £168,000 worth of W's current pension values. That would reduce the overall imbalance between them to an aggregate of £632,000 to W and £308,000 to H. I was told that this would purchase at his retirement age of 63 in 20 odd years an annual income of some £5300 (subject to income tax) for the remainder of H's life. He would need to survive to take the benefit, and although actuarially there is a good chance that he would the life tables perforce also reflect those who do not stay the course. The alternative approach which I postulated in final submissions, if indeed any compensation for this pension imbalance is to be awarded, of an offsetting capital payment by W to H which would leave her pension expectations intact, seemed not to have been considered on either side nor was it the subject of any approximation or evaluation by the pensions expert. I will deal with the pros and cons and indeed the ins and outs of this below, but Mr Feehan QC for W predictably reacted on her behalf with enthusiasm (if, that is, her objection in principle to any redistribution of pension funds were not to win the day) to the figure of £40,000 upon which, to test the water, I had invited response: whereas Mr Southgate QC who with Mr Robin Rowland represented H equally predictably suggested that anything less than £100,000 would be too little.
The parties' current financial landscape and their future prospects
At the...
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