S v S (Ancillary Relief After Lengthy Separation)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Singer |
| Judgment Date | 22 September 2006 |
| Neutral Citation | [2006] EWHC 2339 (Fam) |
| Docket Number | Case No: FDO3DO3 133 |
| Court | Family Division |
| Date | 22 September 2006 |
[2006] EWHC 2339 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Mr Justice Singer
Case No: FDO3DO3 133
Mr Andrew Moylan QC and Miss Sarah Phipps (instructed by Alexiou Fisher Philipps) for the Petitioner Husband
Mr Nicholas Cusworth and Mr Tom Carter (instructed by Messrs Dawson Cornwell) for the Respondent Wife
Hearing dates: 25 to 28 April and 4 May, 13 July and 20 September 2006
JUDGMENT APPROVED BY THE COURT
The original copy of this judgment which consists of 121 paragraphs has been signed and dated by the judge.
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.
I give leave to publish this judgment ONLY in this more fully anonymised form which I approve for publication: the judgment in this form is therefore FOR PUBLICATION.
Over five and a half days between 25 April and 4 May 2006 I heard evidence and submissions in this ancillary relief application made by Mrs S ('W') upon the termination of her marriage to Mr S ('H'). By common consent the delivery of this judgment has been deferred until after the decisions of the House of Lords in the conjoined appeals of and Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 1 FLR 1186, have become available, since when I have received further written and oral submissions from counsel, Mr Cusworth and Mr Carter for W and Mr Moylan QC and Miss Phipps for H.
H and W are respectively almost 54, and 51. H comes from a Mediterranean family which removed from North Africa to England in 1959. H was educated here and is fully integrated into English life. He met W in 1973 or 1974 when she would have been 18 or 19 and shortly thereafter (H puts it in 1975) they commenced cohabitation in rented accommodation in South west London. They were married in September 1977. Notwithstanding a number of medical interventions it transpired that they were unable to have children, a fact which continues to be a cause of considerable regret to both of them. Passing for the moment over the intervening years, they separated in March 1996 when H moved out of the final matrimonial home (LM House) where W continues to live. He rented accommodation until August 2001 when, with the assistance of significant mortgage facilities, he purchased his current home.
In broad terms, therefore, these parties cohabited before their marriage for a year or two, and as a married couple for a further 18 1/2 years. I am asked to have regard to what W, in particular, asserts was or might have been the absence of finality about that separation in March 1996, an uncertainty which continued she suggests until some time late in 2000. But on any view of the matter their physical separation took place ten years ago, and during the intervening period it is the fact (and in no sense a recrimination) that H has developed his business without any form of support or contribution from W. She however argues that as he has not until now had to deal with her capital claims he has in effect had the use of money or assets which should be regarded as hers, and thus that her contribution has continued.
This is a submission with which I will deal in due course, but for the moment I simply observe that although (as correspondence produced by H evidences) some desultory requests for financial information with a view to settlement negotiation were requested from him in 1998 and 1999, the reality is that neither party felt emotionally able to face up to the unpleasantness of divorce and ancillary relief resolution until, in March 2003, H presented a petition relying on five years' separation. Decree absolute was pronounced in September 2003, and W initiated these financial proceedings in November 2003. They were to have been heard by Baron J on 13 June 2005 but were adjourned until this April because of late developments in the valuation dispute concerning H's shares in his company T Ltd.
For reasons which will become apparent that was, to say the least, unfortunate, and must be a significant feature of the development of the costs bills on each side. These were in round figures estimated at £361,000 for H and £207,000 (revised in July to £235,500) for W, a total therefore of just short of £600,000. By 20 September the aggregate costs bill was about £650,000. These amounts are wholly disproportionate in the context of the parties' present liquidity, the value of their assets (excluding pensions and H's T Ltd shares) amounting to something under £2M.
H accepts that throughout the course of their marriage W contributed to the fullest extent, and makes no criticism whatsoever of any aspect of her conduct. They did not initially seek to have a family. W found her work as a teacher (at which she had commenced just prior to the marriage) fulfilling, moving as necessary from one school to another when the parties came to live north of London at a time when H started to work with his brother in a civil engineering contracting company which I shall refer to as YD. That was in 1979, and W continued teaching until 1988 or 1989 when she branched out into writing educational books. Although she still derives some very modest income from that source, since the early 1990s she has developed an interest in antiques which, again, over the years has brought her in some relatively small income. She still has some stock but no or no secure trading premises. H recognises that nothing she earns or which it would be realistic to anticipate she might earn from these or any other sources is of significance in the context of the issues before me.
By 1991 H had a shareholding in YD and was chief executive of that company while his brother was chairman. Between them they had come to hold all the shares. H's financial situation had improved significantly over the previous decade when in November 1991 LM House was purchased in joint names for £540,000 with a considerable mortgage. It is a very extensive property indeed, and is now to be valued, in my view, at £1,310,000, which disregards notional sale costs but takes into account £60,000 which was the price H recently paid for the acquisition of some adjoining land to resolve a dispute with neighbours. The property is subject to a mortgage standing currently at just over £298,000.
LM House stands in almost five acres of grounds. It is a substantial three floor Victorian building with eight bedrooms and a variety of reception rooms. It has attractive formal gardens and a tennis court. W lives there alone and wishes to continue to do so. It is H's desire that she should be left in a position where she owns the property free of mortgage and may have the means to continue to live there indefinitely.
Although brief reference is made in documentation filed prior to the hearing to the fact that work needed to be done to the property to bring parts of it up to the extremely high standard of the rest, it was only at a late stage in the hearing before me that W produced her own detailed list of the repair and renovation works which she regards as essential. There is no professional estimate of what these works may cost, but something of the order of £150,000 to £175,000 would not seem untoward. What has been happening to date, over the years since separation at least, is that maintenance and refurbishment works to the house and garden have proceeded piecemeal at an average annual cost of about £16,000. This has been met by ad hoc contributions from H supplemented by W's income from all sources including the disposal of quite a number of items of household furniture (as opposed to her trading stock). She has also taken bank loans to help defray the refurbishment costs which debt stood at £30,000 by July 2005.
In June 2005 Baron J decreed that pending the outcome of this hearing H should pay W at the rate of £2,000 per month and should in addition discharge the monthly mortgage payments. He was also to pay outgoings and utilities, to include £300 a week towards the wages of the cleaner and gardener employed at the property. In fact, the cleaner and the gardener cost more than this, and W contributes a further £105 per week from her own resources. Thus staff costs at LM House are running at £21,000 annually. H has also since June 2005 paid W some £30,000 on account of her ongoing legal fees.
No very great scrutiny was directed during the course of the hearing at the detail of W's historic annual expenditure. She produced a schedule in early 2004 which threw up a total of £81,300 per annum, but when the mortgage interest and ongoing fees for a dispute which is now resolved are stripped out this reduces to about £65,000. Almost £10,000 of that is put down to repairs, decoration and maintenance of the property. As against that staff costs were then running at about £6,000 less than they now are. H's approach to resolution of the case assumed that W would be able to live at LM House with a net annual income, currently, of about £70,000. In his final submissions for W, in which he put forward a significantly revised proposal for the appropriate outcome, Mr Cusworth contended for ongoing maintenance at the rate of about £107,500 per annum net.
As for the husband's career and current circumstances, during the period of cohabitation he too clearly contributed fully. He would from his own description appear to be something of a workaholic, and indeed W suggested that his inability to take time off work for domestic life may have been a factor in their estrangement. I have no doubt that he has put and continues to put very considerable effort and commitment into his business endeavours. He told me that he lives for his work and that the reason...
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