S v M (Maintenance Pending Suit)

JurisdictionEngland & Wales
JudgeMr Justice Coleridge
Judgment Date15 November 2012
Neutral Citation[2012] EWHC 4109 (Fam)
Docket NumberCase No: FD11D03692
CourtFamily Division
Date15 November 2012

[2012] EWHC 4109 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Court No: 31

The Royal Courts of Justice

Strand

London

WC2A 2LL

Before:

Mr Justice Coleridge

Case No: FD11D03692

Between:
Borzou Chaharsough Shirazi
and
Joelle Mantoura

Mr A Thorpe appeared on behalf of THE APPELLANT

Mr C Stirling appeared on behalf of THE RESPONDENT

Mr Justice Coleridge
1

This is an appeal by a husband against two orders made by two different District Judges at the Principal Registry of the Family Division. I say two District Judges. To be entirely accurate, one permanent District Judge and one Deputy District Judge.

2

The first order was an order made by Deputy District Judge Crowther on 14th March 2012 in respect of maintenance pending suit payable to the wife. The order is to be found in the bundle at 1B(3) and I shall read its terms because they are important. The order reads as follows:

"Upon hearing counsel for the petitioner and counsel for the respondent and upon reading the witness statement of the petitioner dated 6th March 2012, (b) the witness statement of the respondent dated 14th March 2012."

I pause there to underline the closeness of the dates.

"It is ordered that: permission to the petitioner to amend her Form A to include a property adjustment order in respect of 59 Kingston House South, Ennismore Gardens, London SW7.

"(2) With effect from 1st March 2012 the respondent shall pay the petitioner maintenance pending suit until decree absolute and thereafter interim periodical payments during their joint lives until the petitioner's remarriage or further order, payable monthly in advance as follows:

(a) Payments of £750 per calendar month payable by standing order direct to the petitioner.

(b) Payments equivalent to the monthly costs of the following outgoings in respect of the property 59 Kingston House South, Ennismore Gardens. (i) Mortgage. (ii) Service charge. (iii) Ground rent. (iv) Council tax. (v) Gas. (vi) Water rates. (vii) Building insurance. (viii) Contents insurance. (ix) Any repair costs that may arise in respect of the building and domestic appliances. (x) Any redecoration costs that may arise.

(c) Payments of £2,400 per calendar month payable directly to the petitioner's solicitors on account of the petitioner's legal costs on account of the petitioner's liability for costs in the proceedings herein to be credited against any ultimate liability of the respondent for the petitioner's said costs.

(d) Payment of the invoices of any valuation or other expert evidence obtained by agreement or pursuant to the directions of the Court.

"(3) Permission to the respondent to appeal.

"(4) Costs in the application.'

The overall value of that order is said to be around £50,000 per annum. Plainly the greatest proportion is the payment to the solicitors on account of their costs, namely £2,400 per calendar month. The payment of the £750 a month amounts to some £9,000 a year and, as I say, the balance is for costs and outgoings on the property mentioned. That is the first order under appeal.

3

The second is an order of District Judge Bowman dated 22nd May 2012. That was a freezing injunction made ex parte and, as Mr Thorpe, counsel for the husband, would say, out of the blue following an application by the wife to enforce the maintenance order which I have just referred to. The terms of that freezing injunction I shall not read out in full but the salient and important part reads as follows:

"Until further order of the Court, the respondent must not dispose of or in any way deal with the following bank accounts without the written consent of the petitioner's solicitors, save that he may withdraw £100 from an account of his choosing for the purpose of meeting his immediate financial needs."

There is then listed six bank accounts of well-known English and continental banks which are caught by the injunction, then:

"(3) Permission to the respondent to appeal.

"(4) Costs in the application.'

It is, therefore, interesting to note that in respect of both orders leave to appeal was granted by the relevant Judge.

4

The background to this appeal and the applications which have given rise to them is very important and extremely unusual and the hearings, which were both very short, were also somewhat unconventional in their form. Let me say something about the background to the applications and the history of the marriage.

5

The husband appellant is 39 and originally from Iran. The wife is 37 and Lebanese. The parties met in the Lebanon in April 2004, now some eight years ago of course, when the husband was then 31 and the wife 29. Their relationship proper, it seems, began in October of that year. The wife was then living in Beirut. The husband was living in England with his parents in Knightsbridge. In either February or March 2005, the wife moved to London, she says to be near to the husband. The wife moved in to live then with her own mother in her own mother's property in Holland Park in West London. In August 2006, the parties became engaged and they married on 9th August 2007. In January 2008, some few months after the marriage I emphasise, they first began living together at the husband's parents' address in a flat in Ennismore Gardens called 62 Kingston House North. In September 2008, the wife went to live at another property, 59 Kingston House South, belonging to a company called Switch Investments. The separation between the parties can properly be dated from that date in September 2008, although the parties remained on reasonable terms. In other words, however you categorise the relationship from time to time, the real marriage in this case lasted, at best, a little over a year in duration. There were no children and, according to the husband, the marriage was not even consummated, although that might be disputed.

6

There is a dispute as to the circumstances leading to the wife moving into 59 Kingston House South. The wife asserts that it was part of longer term plan that they would live together there and that the property was originally bought to be their matrimonial home. The husband vehemently disagrees and says that the wife moved in there unilaterally in September 2008 while he and his parents were out of the country in Switzerland and the wife moved in there entirely off her own bat and without anybody's permission. At all events, since that time the husband has continued to live with his parents and the wife has continued to occupy 59 Kingston House South and that is the position as at today.

7

There is a fundamental dispute about the ownership of that property at 59 Kingston House South. The husband says, and has always said, that this is an investment property, bought, paid for and owned by his father long before the wedding, long before the parties even were in a relationship and that that is the true position. The wife maintains that in truth the husband is the beneficial owner and has always been.

8

There is also an important preliminary point about the husband's medical condition. The husband suffers from high-functioning Asperger's syndrome and depression. This is confirmed completely by agreed reports in the papers. It is very important and explains many of the unusual features in the parties' relationship and, indeed, the husband's behaviour especially in relation to money. Mr Thorpe says he has an obsession with numbers which, of course, is not an infrequent part of that particular condition.

9

In February 2011, the husband was convicted of making fraudulent VAT claims in relation to property investment activity. He pleaded guilty and was given a 12-month prison sentence suspended. He was also ordered to pay £1.5 million in compensation to HMRC. In fact, the money was paid by the husband's father as part of the deal, as Mr Thorpe put it, with the prosecution and to avoid the husband in this case having to go to prison. The husband's medical condition was very much one of the factors which were taken into account during the trial and clearly helped the husband avoid an immediate prison sentence.

10

The subject of divorce arose on the wife's side in September 20In due course, on 8th July 2011, the wife issued a divorce petition and a decree nisi was pronounced on 1st November 2011. It is clear that there was some correspondence between the parties thereafter, after the filing of the divorce petition, about the financial issues between the parties and there was discussion about disclosure and negotiation. Indeed, a settlement meeting took place but without success. All of these preliminary discussions coincided with the husband's criminal proceedings and his involvement in them and, as I say, they came in fact to nothing.

11

Matters came to a head in late February of this year when husband's father via Switch caused a notice to quit to be served on the wife as his patience over the wife's occupation of 59 Kingston House South was running out. He was undoubtedly losing a very significant amount in rent by virtue of the fact the wife was occupying that property. It was the service of that document which triggered the wife's application in Form A dated 29th February 2012 and that is also the triggering application for maintenance pending suit. It is, says the husband, of significance that there is no claim in the Form A for a transfer of property order in relation to 59 Kingston House South. I think it is doubtful that the application for maintenance pending suit would have been issued had the notice to quit not been served but I speculate.

12

Pausing there, it is only right to say that against that background alone, the claim by the wife to long-term financial provision must be very limited. This was a very short marriage, in reality measured in length at about a year. The parties never really...

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1 cases
  • Amita Rattan v Tushar Kuwad
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 11 Enero 2021
    ...the Family Court Practice 2019 (the “Red Book”), in particular the references there to Tl v ML and to S v S (Maintenance Pending Suit) [2013] 1 FLR 1173. His conclusion was that the maintenance had to be “reasonable”, as set out in section 22, and that “it should deal with immediate expendi......
1 books & journal articles
  • Financial Remedies
    • United Kingdom
    • Wildy Simmonds & Hill The Single Family Court: a Practitioner's Handbook - 2nd Edition Contents
    • 30 Agosto 2017
    ...pending suit must attach: 79 MCA 1973, s 22. See TL v ML [2005] EWHC 2680 (Fam), [2006] 1 FLR 1263; S v M (Maintenance Pending Suit) [2012] EWHC 4109 (Fam), [2013] 1 FLR 1173. 80 Civil Partnership Act 2004, Sch 5, Part 8. 81 A v A (Maintenance Pending Suit: Provision for Legal Fees) [2001] ......

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