M v M (Financial Provision)
| Jurisdiction | England & Wales |
| Judge | Mrs. Justice King |
| Judgment Date | 19 October 2010 |
| Neutral Citation | [2010] EWHC 2817 (Fam),[2011] EWHC 3574 (Fam) |
| Docket Number | Case No. FD10F00551 |
| Court | Family Division |
| Date | 19 October 2010 |
[2010] EWHC 2817 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Mrs. Justice King
Case No. FD10F00551
MR. Nigel DYER QC and MISS Juliet CHAPMAN (instructed by Mishcon de Reya) appeared on behalf of the Applicant.
MR. Tim SCOTT QC and MR. Brent MOLYNEUX (instructed by Farrer & Co.) appeared on behalf of the Respondent.
This is an application by the wife for interim periodical payments following the breakdown of her marriage to her husband. The wife's application for financial relief is made under Part III Matrimonial and Family Proceedings Act 1984, leave having been given by me for the wife to commence her application for financial relief on 20 th July 2010.
At the hearing on 20 th July, directions were given for the wife to file an affidavit in support of her application for interim maintenance, that affidavit to be filed by 7 th September, and thereafter for the husband to file his affidavit in reply by 7 th October 2010.
The case was listed on 20 th July for hearing on 18 th October 2010 (yesterday). At the July hearing a freezing order was made against the husband in relation to a number of properties in London. Directions were given in the usual way at that hearing for the husband to file an affidavit of means.
The wife filed her affidavit in support of her application for maintenance a little late, on 9 th September 2010. The husband has not filed an affidavit in reply and offers no explanation for its absence.
The matter was listed for directions in front of Parker J. on 5 th October. The husband was represented by counsel but chose not to attend. The matter came on before me yesterday afternoon. The husband again chose not to attend. I am told he "has an infection", but that was not given as the reason for his non attendance. No medical report has been produced.
The husband was and is represented by leading counsel and junior counsel. No explanation has been offered for his failure to file an affidavit. When the matter did not get reached until late in the day yesterday and the matter has, accordingly to go over until today, the husband did not take the opportunity to file an affidavit overnight.
Mr. Dyer QC on behalf of the wife indicated yesterday that it was his intention to submit to the court that under the principles in Hadkinson given the circumstances outlined above the husband should not be heard in relation to the application before me.
BACKGROUND
The brief background is as follows. The parties are Russian nationals in their mid-40s who have lived in England since August 2005. They married in Moscow in 1991. Including pre-marriage cohabitation the marriage lasted for nearly 20 years. There are two children of the marriage who are 16 and 12 years of age. Both the boys are educated in England and both are attending boarding school. The parties each have a child from a previous marriage. The wife's daughter is 25 years old and was adopted by the husband in Russia. The family's connection with England started as long ago as 1998, when the wife's daughter was first sent to school in the UK. The husband's son, is 23 years of age and he, it would appear from the limited information available to the court, is very involved with the husband in his business affairs.
It appears from documents which were obtained on the wife's behalf from Companies' House, that shortly after the parties separated, the wife's 50% share in a property holding company was transferred to the husband's son. It is alleged by the wife that this was done without her knowledge and consent. Indeed, Parker J. at the recent directions hearing ordered the husband to produce the transfer in order to allow the signature to be examined. Parker J attached a penal notice to that order. I have not got a copy of the draft order and do not know not the date when the transfer was to be filed.
The parties moved to live in England, as I have already indicated, in 2005. After a year or so living in rented accommodation they bought their first London home for approaching £4 million. This property was and remains in the parties' joint names. This is where their family life was conducted and it was to there that the boys returned to from boarding school during the school holidays. Before the breakdown of the marriage the family moved into rented accommodation whilst the former matrimonial homewas being renovated.
In the autumn of 2008 the parties separated. The wife left the property they were then living in, and moved to rented accommodation where she still lives with the boys when they are not at school.
The husband has remained living in London in a property in north London.. He also spends some time living at a property in the West country which he bought last year. The husband has given the wife no financial support of any type since 10 th September 2009. His only financial contribution has been to pay the boys' school fees and to give the boys some form of allowance or gifts. The wife has been living off the generosity of a wealthy friend and her husband. That couple currently pay the rent on the property which in itself amounts to £12,000 a month.
The husband has engaged with the litigation on only the most superficial level. The order of 20 th July required him to produce an affidavit in response to the freezing injunction, together with the relevant supporting documents. These were to be produced by 31 st August. The wife agreed an extension of time to 7 th September. The wife's legal team were no doubt encouraged by a letter sent by the husband's legal team at Farrer & Co which said that "the affidavit for which you have just agreed an extension will not be limited to the matters in paragraph 5 of the injunction order. It will be considerably wider in its scope and it will also respond to your wife's affidavit sworn on 13 th July 2010."
Despite the promises, the affidavit did not arrive until 1 st October 2010. It had no supporting documentation whatsoever, and as Mr. Scott sensibly and realistically concedes on the husband's behalf, it is very limited in the information it gives. In fact, it is more than limited; it gives the court absolutely no idea of the extent of the husband's wealth other than the properties already identified by the wife and frozen under the July order as being in the United Kingdom; he says that a Forbes estimate of his wealth at £150 million was an exaggeration. Income is not even mentioned.
Meanwhile, the wife's team was also waiting for the affidavit in reply to the application for interim maintenance. Once again, Mishcon de Reya were chasing that affidavit. In a letter written on 12 th October Farrer & Co., on behalf of the husband, were driven to saying as follows:
"I regret that I was unable to serve an affidavit of my client on 7 th October in relation to interim maintenance. Equally, I regret that I cannot tell you when I shall be in a position to serve it. In the circumstances, I cannot suggest a particular period or date for an extension of time. When I am in a position to serve an affidavit I will ask you to accept it and treat time as extended, or my client will have to apply to the judge for an extension."
That letter seemed to indicate that Farrer & Co, even as of 12 th October (six days before the hearing) had not given up hope completely that they would be in a position to file an affidavit as ordered by the court. It should be noted that there was no suggestion in that letter or any other correspondence that this court had no jurisdiction to make such an order. Mishcon, now denied the affidavit for the foreseeable future, wrote back asking for a run of the husband's bank statements and credit cards. None have been forthcoming.
The court therefore finds itself in a position whereby, three months after the hearing was listed, it has not had a single piece of documentary evidence from the husband as to his financial position and there has been no attempt by him to give the court any picture of his wealth, or, of particular relevance to this interim hearing, his income. In the unsatisfactory affidavit he has filed, he did make reference to maintenance, but only to say that he believed that the wife had sufficient means of her own and that she would have asked him if she needed financial assistance.
Mr. Scott QC appears today, as he did yesterday, with junior counsel and with a partner from Farrer & Co. He again came with no explanation or justification for his lay client's continued contempt, or any evidence with which to fill the void in the court's knowledge which would allow it properly and effectively to exercise its judicial discretion in determining the application of the wife. Mr. Scott, as always, has been moderate and careful in how he has put his case in what must have been an extremely difficult position for him.
Mr. Scott seeks to argue that as a matter of principle no order should be made. Mr Dyer, for his part, submits that the court should decline to hear the submissions of Mr. Scott and proceed to hear the application which has been listed before the court for three months and against the backdrop of a wife who has had no financial support of any type, shape or description from her husband for a year.
THE LAW
In Hadkinson v. Hadkinson [1952] FLR 287 Denning LJ said:
"Those cases seem to me to point the way to the modern rule. It is a strong thing for a court to refuse to hear a party to a cause, and it is only to be justified by great considerations of public policy. It is a step which a court will only take when the...
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