Moher v Moher

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Moylan,Lady Justice Rose,Lady Justice King
Judgment Date21 Aug 2019
Neutral Citation[2019] EWCA Civ 1482
Docket NumberCase No: B6/2018/2975

[2019] EWCA Civ 1482

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT

FAMILY DIVISION

HIS HONOUR JUDGE WALLWORK

Sitting as a Deputy High Court Judge

LV16D01674

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lady Justice King

Lord Justice Moylan

and

Lady Justice Rose

Case No: B6/2018/2975

Between:
Moher
Appellant
and
Moher
Respondent

Brent Molyneux QC and Juliet Allen (instructed by Judge Law Solicitors) for the Appellant

Sally Harrison QC (instructed by Bps Family Law Llp) for the Respondent

Hearing date: 9th May 2019

Approved Judgment

Lord Justice Moylan

Introduction

1

The husband appeals from a final financial remedy order dated 4 th May 2018 made by His Honour Judge Wallwork, sitting as a Deputy High Court Judge.

2

The husband challenges some specific provisions of the order but also submits that the judgment as a whole is deficient because it contains neither a sufficient evaluation of the husband's financial resources nor a sufficiently reasoned explanation for the award of a lump sum of £1.4 million. These issues arise in the context of a case in which the judge determined that the husband had comprehensively failed to comply with his obligation to give disclosure of his financial resources.

3

At its core, the husband's challenge to the judgment is based on the submission that a judge is required to evaluate the scale of the undisclosed wealth by providing a figure or a bracket of figures. This submission is based significantly on NG v SG (Appeal: Non-Disclosure) [2012] 1 FLR 1211, in particular [16(iii)], in which Mostyn J said that: “If the court concludes that funds have been hidden then it should attempt a realistic and reasonable quantification of those funds, even in the broadest terms”. This, Mr Molyneux QC (who did not appear below) on behalf of the husband submitted, required the judge, at least in this case, to provide a figure for or a bracket of the scale of the husband's non-disclosed assets. The result of the judge's failure to do this is said fatally to undermine his judgment such that the case should be remitted for a rehearing.

4

In summary the husband's grounds of appeal are as follows:

(a) The judge failed to quantity the extent of the husband's financial resources and as a result failed to undertake a necessary element of every financial remedy judgment;

(b) The judge's calculation of the award of £1.4 million was not properly reasoned and, in any event, was flawed in that it was more than was properly justified by the wife's needs;

(c) The judge was wrong to award interest on the lump sum and periodical payments;

(d) The judge was wrong to order that periodical payments for the wife should continue until the grant of a Get by the husband; and

(e) The costs order was wrong.

5

I am grateful to counsel for their focused but comprehensive submissions.

Background

6

The judgment below, and the skeleton arguments, contain few background facts. What follows is, therefore, a very brief summary.

7

At the date of the hearing below the husband was aged 53 and the wife 45. They married in 1995 and separated in 2016. They have three children aged between 10 and 21 all of whom remained financially dependent.

8

During the marriage the husband was a businessman and, it appears, owned and ran a company which imported goods. The wife looked after the home and the children and had “some small part-time employment”. Since the parties separated, she has obtained more substantive employment and also undertakes occasional other work.

9

The judgment refers to schedules of assets as produced by the parties but does not set out what they contained nor does the judgment contain any schedule or summary of, what were described in Behzadi v Behzadi [2009] 2 FLR 649, at [16], as the “visible” assets. I deal with this omission further below, at [113]–[114]. In his submissions for this appeal, Mr Molyneux stated that the “identifiable assets” were said by the wife to be £1.875 million from which had to be deducted the husband's debts of some £177,000 giving net assets of, very approximately, £1.7 million.

10

The financial proceedings were, as the judge found, “far more complex than (they) need have been, largely due to the failure of the husband to provide adequate disclosure and his lack of adherence to court orders”.

11

The husband was convicted of assault and harassment of the wife after the parties' separation. The judge also found that the husband had interfered with the sale of the former matrimonial home by contacting prospective purchasers. The judge considered that, if possible, it was “imperative” for there to be a complete clean break between the parties, not just financially.

12

The proceedings concluded with the final order dated 4 th May 2018 which followed a four-day hearing. As set out in the judgment, the husband proposed that the wife should receive £960,000 while the wife sought a lump sum of £1.5 million. The wife's case was that “what the husband has disclosed and the values disclosed are likely to represent a significant undervalue of the true extent of the assets”. The wife advanced a similar case in respect of the husband's income. The judge essentially accepted the wife's case as to the effect of the husband's failure to provide proper disclosure and rejected the husband's case that he had provided the court with “a true picture of his finances” and of his current difficulties.

13

In so far as relevant to this appeal, the final order contained the following provisions.

14

The order provided that it is “with effect from Decree Absolute”. The husband was ordered to pay the wife “a lump sum of £1.4 million by 4.00pm on 25 th May 2018”. It is additionally provided that, if the husband failed to pay all or any part of the lump sum by that date, interest would accrue at the judgment debt rate. I will consider the effect of these provisions below when I deal with the husband's challenge to the imposition of interest in addition to periodical payments.

15

The husband was ordered to pay the wife maintenance pending suit until decree absolute and thereafter periodical payments at the rate of £22,000 p.a. until the later of “the grant of a get” or “the payment in full of the lump sum together with any interest accrued thereon”.

16

An order was also made under section 10A of the Matrimonial Causes Act 1973 (“the 1973 Act”) prohibiting the husband from applying for decree absolute until a declaration had been filed by the parties that they had taken such steps as were required to dissolve the marriage by means of a Get.

17

Finally, the husband was ordered to pay just over £52,000 towards the wife's costs.

18

I now turn to the judgment below.

The Judgment

19

As referred to above, at the outset of the judgment the judge commented that the case:

“has become far more complex than it need have been, largely due to the failures of the husband to provide adequate disclosure and his lack of adherence to court orders.”

The judge specifically rejected, as “simply an excuse”, the husband's assertion that his ability to make full disclosure had been impeded because “a large amount of financial information remained in the former matrimonial home upon his departure”. The judge was satisfied that the husband “would have been able to access all information required to give full disclosure”. He returned to this issue a number of times during the course of his judgment.

20

For example, the judge found that the “husband has undoubtedly provided misleading and incomplete information in his Form E”; that the “difficulties in ascertaining the precise level of capital and of the husband's income are manifest”; that the husband's evidence was “unreliable for a number of reasons” which included that his litigation conduct had been “appalling” and that “he was generally obstructive in order to obfuscate and to prevent an accurate evaluation of the parties' true financial position”; and that the husband's evidence “did not stand up to scrutiny”.

21

The judge was “mindful of the case law in respect of non-disclosure”, adding: “in particular, whilst the court can draw adverse inferences from a failure to disclose, the court should make some attempt to evaluate the extent of the assets in endeavouring to achieve a fair outcome”. He later added that, because the wife, “with some degree of pragmatism”, put her case “on a needs basis rather than on a sharing basis” he did not need to identify “with the precision which might otherwise have been necessary the exact size of the parties' capital”.

22

The judge accepted the wife's case and found that “it is likely that there remain assets which have not been disclosed”. The judge also referred to the “principal business operated” by the husband at the time of the separation and that despite “requests for evaluation of the husband's interest, there has been no satisfactory response”. Only abbreviated accounts had been produced.

23

The judge also rejected the husband's case that he was “unable to generate the same income as hitherto”. The judge found that, despite his denials, the husband was “both involved and intends to become more active in” another business to which he had transferred “stock and money”. He also found that, even if the husband was only currently earning what he alleged, “he will undoubtedly be able to significantly increase his earnings should he choose to do so and generate higher income in the future”. The husband's “skills and business contacts” were such that he would be able to generate an income “at a much greater level than he presently admits and in line with his past earnings which enabled him and the family to amass both capital and to have income to enjoy a comfortable lifestyle”.

24

The husband's earning capacity was “considerable and far greater than that of” the wife. The wife's earning capacity was...

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7 cases
  • XW v XH
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 18 December 2019
    ...and since the hearing of this appeal: “Every financial remedy judgment should clearly set out how the award has been calculated”, Moher v Moher [2019] EWCA Civ 1482, at 87 In terms of guidance, what Lady Hale termed the “great leap forward”, Miller at [134], came in the decision of White. ......
  • Tcp v Kls
    • Hong Kong
    • Family Court (Hong Kong)
    • 23 March 2020
    ...the principles set out in para [16] (iii) and (vii) of NG v SG (Non-Disclosure), in the English Court of Appeal case of Moher v Moher[2019] EWCA Civ 1482; [2020] 2 WLR 89; [2020] 1 FLR. 225; [2019] 3 FCR. 244. The court held that in the event of non-disclosure of a party's financial resourc......
  • Tcp v Kls
    • Hong Kong
    • Family Court (Hong Kong)
    • 23 March 2020
    ...the principles set out in para [16] (iii) and (vii) of NG v SG (Non-Disclosure), in the English Court of Appeal case of Moher v Moher[2019] EWCA Civ 1482; [2020] 2 WLR 89; [2020] 1 FLR. 225; [2019] 3 FCR. 244. The court held that in the event of non-disclosure of a party's financial resourc......
  • Richard Rothschild v Charmaine De Souza
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 18 September 2020
    ...the thought processes through which he passed on his route to conclusion.” 72 I also quote what I said more recently, in Moher v Moher [2020] Fam 160, about the need for an appropriate degree of detail in a financial remedy judgment in the context of non-disclosure: “[114] In summary, as a ......
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