MB v KB
| Jurisdiction | England & Wales |
| Judge | MRS JUSTICE BARON |
| Judgment Date | 07 March 2007 |
| Neutral Citation | [2007] EWHC 789 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD06P00830 (FD01D00518) |
| Date | 07 March 2007 |
[2007] EWHC 789 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Mrs Justice Baron
Case No: FD06P00830 (FD01D00518)
Mr Anthony Geadan appeared on behalf of the Claimant
Mr Justin Warshaw appeared on behalf of the Defendant
This is an application on behalf of Mr KB (to whom I shall refer as the father) to strike out an application made by his former spouse, MK (to whom I shall refer as the mother). She issued an application on 25 April 2006 under section 15 and schedule 1 of the Children Act 1989 by which she seeks a settlement of property order and/or lump sum on behalf of the parties' daughter, A, who was born on 30 September 1999 and so is 7 1/2 years old.
The factual matrix is as follows. The father was born on 15 July 1964 (42 years old). He is the son of F and N. He has one brother, M. They are a successful family. From what I can glean F has been an extremely successful businessman. He owns a number of properties, including a small hotel with 55 bedrooms called the LC, worth, according to the wife's assertions, in excess of £3 million. He also has an interest in a small chain of sandwich shops which operates under the name of KB. It employs about 30 people. Both of the sons took professional qualifications, the father being a chartered surveyor and his brother a chartered accountant. This was clearly a hard-working and enterprising family.
As the boys grew their parents, in accordance with tradition, sought brides for them. Two sisters, M—the mother and her sister, S, were chosen. They married and the sisters came to the United Kingdom. These parties went through the formal ceremony of marriage on 14 September 1997. They set up home in a property, flat 4, C Court in W Road. It was held in the husband's name, apparently so that he could achieve a first-time buyer's discount in relation to the mortgage. At some stage a declaration of trust was entered into indicating that the underlying beneficial interest remained with his father, F.
The marriage appears to have been troubled from the outset and these parties had separated by July 2000. A petition was launched on 25 January 2001. It led to a decree absolute being granted on 15 February 2002. I have mentioned the other sibling in this case. Unfortunately, it seems that S and M's marriage also foundered, they having produced one daughter. It seems that the divorces were dealt with as a package. The sisters moved into accommodation which was owned by F through one of his companies. It is a modest flat at 7 B Court, 1 R Road in West Ealing SW13. So far as I can tell, it contains two relatively small bedrooms. The two sisters and their daughters have been living there since about 2002. During the ancillary relief proceedings the mother was represented by an established firm with a good reputation in respect of matrimonial work called RPC.
An agreement was reached between the husbands and the two sisters. The compromise was encapsulated in a court order made by District Judge Green. The main terms of that order (made on 15 February 2002) are as follows: upon the father agreeing to procure (i) that the mother had a shared grant with her sister of an assured shorthold tenancy in respect of B Court on the terms that she had the right to occupy that property (a) until she or S either cohabited or remarried or (b) for so long as the property remained her primary residence, (c) until the child of the family, A, or S' child, AR, have each attained the age of 18 years or ceased full-time tertiary education, whichever is the later. It was also provided that no person other than a member of the mother's immediate family was permitted to stay overnight in the property without the father's express and prior written consent. Moreover, no member of the petitioner's immediate family was permitted to stay in the property for a continuous period of more than two weeks in any 12 months without the father's express and prior written consent. The parties agreed that if the petitioner's sister, S, should cohabit or remarry or cease to occupy the property as her primary residence, then, subject to the father providing suitable alternative accommodation for the petitioner and her daughter, he was entitled to terminate the tenancy agreement in respect of the property.
The father undertook to pay nursery fees for A until she began to start state primary school. He also agreed to pay one half of the “rent”, the service charge, the electricity, gas and council tax in respect of the property until further order. A mirror order in like terms was made in respect of S. In essence, therefore, the two brothers agreed to provide a rather insubstantial housing arrangement for their former spouses. The father agreed that he would take reasonable steps to ensure that the mother obtained the child benefit allowance. An order was also made giving the mother periodical payments at the rate of £1,200 per annum, payable monthly in advance during their joint lives until her remarriage or further order. Some £3,600 per annum, payable monthly in arrears, was to be paid to A. On that basis each of the parties' claims for secured provision, lump sum, property adjustment and pension attachment. Sharing orders stood dismissed, as did the mother's application under section 37 of the Matrimonial Causes Act. There was provision in relation to the small amount of costs that had been incurred, totalling about £2,000 including VAT. The order was made against a background of the father indicating that he had no other real assets.
By giving effect to the agreement the District Judge exercised his powers under the Matrimonial Causes Act. The force of that order under English law is clear upon Authority which does not need to be reiterated by me. The wife cannot seek further capital for herself, whether by lump sum or by seeking any property adjustment order for herself under section 24 of the Matrimonial Causes Act. Of course, she did not compromise her claims for continued periodical payments nor did she compromise her child's rights for periodical payments or lump sum under section 23 of the Matrimonial Causes Act. The latter forms of order can, as the statute makes clear, be made “from time to time”.
In 2004 the wife applied for a variation upwards of her periodical payments. The counter from the father was that her application should be dismissed and his liability under the terms of the previous order should be extinguished. The matter came before District Judge Segal. He heard counsel for the mother and her sister. It appears that the applications were conjoined. Both the father and his brother appeared in person. The District Judge heard evidence from each of the former wives. The former husbands declined to give evidence, as is their right, choosing simply to make their statements from, as it were, counsel's row.
The District Judge had no doubt that he preferred the evidence of the wives as from the submissions of their former spouses. He made an order increasing the periodical payments. It is right to point out that the wives had limited their claims to the shortfall between their expressed income needs and the amount of monies coming into their household. In the intervening period each of the sisters had worked to the best of their ability. The mother as a shop assistant for a period of time and her sister apparently training as a hairdresser.
The District Judge made an order to the effect that the father would pay £650 per calendar month in advance, made up as to £200 worth of arrears and £450 per month by way of current maintenance. He totalled the arrears at some £4,640 and indicated that once they had been paid the order would reduce to £450 per calendar month. In addition, he made periodical payments for the benefit of A at the rate of £350 per month until she reached 17 years old or ceased full-time secondary education. He made the father pay the costs of the mother's application.
DJ Segal was clear that where there was a difference between the evidence of the sisters and their former husbands, he preferred the wives' version of events. He went on to note that the father in this case had made very serious allegations against his former wife, which included the allegation that she had used the entire marriage as an “economic scam”.
By this time, the husband had moved from the former matrimonial home and he was living at a property in Kingston, number 1 J Terrace. Apparently this had been purchased for about £265,000 with a mortgage of £200,000. It was held in the name of F. That property was the husband's home on and off between 2003 (or thereabouts) and 2005. He indicated that he also spent a good deal of time at his parents' own home at M Place, particularly as he was suffering from depression. He continued to work in the family businesses, not simply as an operative within the sandwich bar company, but as a manager and assistant to his father. The District Judge in the context of the family's situation made a specific finding at paragraph 36:
“I have come to the conclusion that the various properties and businesses about which I have heard are family property in the broadest sense, ie that is as between Mr F and his sons there is no clear cut distinction between legal and beneficial ownership, and that the properties and profits from the businesses are freely available for the sons on a generous basis. But that, should any member of the family have a dispute with a third party, for example a former wife, then Mr F and his sons will not only draw nice distinctions...
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...provision)[2004] EWHC 1848 (Fam), [2005] 1 FLR 261. J v C (child: financial provision)[1998] 3 FCR 79, [1999] 1 FLR 152. MB v KB[2007] EWHC 789 (Fam), [2007] 2 FLR 586. P (a child: financial provision), Re[2003] EWCA Civ 837, [2003] 2 FLR 865. PK v BC (financial remedies: schedule 1) [2012]......
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