Shlomo Zalman Kliers v Miriam Kliers

JurisdictionEngland & Wales
JudgeMr Cusworth,Mr Nicholas Cusworth
Judgment Date07 April 2020
Neutral Citation[2020] EWHC 1026 (Fam)
Docket NumberCase No: BV18D20848
CourtFamily Division
Date07 April 2020

[2020] EWHC 1026 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Nicholas Cusworth QC

(SITTING AS A DEPUTY HIGH COURT JUDGE)

Case No: BV18D20848

Between:
Shlomo Zalman Kliers
Applicant
and
Miriam Kliers
Respondent

Christoper Wood (instructed by GN Law) for the Applicant

Joseph Rainer (acting pro bono) for the Respondent

Hearing dates: 11 th – 13 th March and 7 th April 2020

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.

Mr Nicholas Cusworth QC (SITTING AS A DEPUTY HIGH COURT JUDGE)

This judgment was handed down in private on 7 th April 2020. It consists of 72 paragraphs and has been signed and dated by the judge.

The judge hereby gives leave for it to be reported.

Mr Cusworth QC:

1

This is a husband's claim for a financial remedy, heard together with a wife's claim for an order for sale of the former family home to conclude TOLATA proceedings brought by her in the Chancery Division of the High Court.

2

In that Chancery application, brought by the wife to assert a beneficial interest in the property, Mr Murray Rosen QC sitting as a Deputy heard evidence from the wife, but not from the husband, who chose to take no part in those proceedings until the conclusion of the fact-finding exercise. He was not the only defendant. The other, a brother of the wife named Mordechai Schmerler (‘Mordechai’), is the legal owner of the property, which is at 98 Kyverdale Avenue, London N16.

3

Mr Rosen QC gave his judgment on 30 April 2018. He found that Mordechai held the property on bare trust for the parties, which they held in proportion to their initial contributions to the purchase price in 2004 – which he declared to be 75% from the wife and 25% from the husband. I will deal with the substance of his judgment below.

4

To enable me to determine these applications, I have heard oral evidence over 3 days from both of the parties, as well as from the wife's now fiancée, Mr Peter Walters, and from Mr Irving Lichtman, Managing Director of Ezer Leyoldos Ltd., a Jewish charitable organisation which has provided a very significant amount of funding to assist the husband in both sets of proceedings, and to defray very significant indebtedness on behalf of both of them, in the circumstances which I will outline.

5

The evidence and submissions in the case concluded on 13 March 2020, since which time the restrictions caused by the Coronavirus pandemic have been introduced in England. Consequently, this judgment has been disseminated in writing, and formally handed down at a hearing conducted remotely by video-link.

Background

6

The parties had married on 30 May 1995, and separated on 24 December 2012. A Get was pronounced on 12 May 2013, after which long-drawn out proceedings in relation to the parties' children followed. Those children are Z (born in June 1996 and now independent and married); N (born in January 1998, independent and married); T, born on 26 September 1999, so aged 20, and living with the father: she is engaged to be married this summer, when it is anticipated that she too will leave home; and finally M, who was born on 8 November 2007 and so is now 12. She too lives with her father in the former family home. Sadly none of the children are presently seeing their mother.

7

Throughout the marriage, and from birth, both parties had been members of the Slonim Community of the Jewish faith, who are an Hasidic group, based predominantly in this country in the Stamford Hill area of North London. The wife has now left the community, which has caused a significant rift between her and her children, as well as her former husband and the rest of their respective families. She has been interviewed in the press about her experiences before leaving the group, which has not been well received in the community.

8

The wife says that she was prevented from issuing divorce proceedings during this period by the husband's obfuscation over the production of the parties' marriage certificate. Eventually the husband himself petitioned for divorce on 22 July 2018, and Decree Nisi was pronounced on 3 December 2018. However, by then he had already long previously gone through a religious ceremony of (re)marriage in New York in May 2016, with his present wife Malka.

9

The wife was thus prevented on her case from making any financial application arising from their marriage before the husband had already and consciously taken on significant further obligation. Malka now lives with the husband, T and M in Kyverdale Avenue, together with her 2 children of a previous marriage, and the baby born to their union, J, some 8 months ago.

10

The wife is living with Mr Walters in York, in a modest rented cottage.

The Judgment of Mr Rosen QC

11

Although the husband chose not to be represented in the Chancery proceedings until after Mr Rosen had delivered his judgment, he was aware that those proceedings were continuing. He told me that he did not get involved as he did not believe that they had anything to do with him. I cannot accept that explanation. The husband is an intelligent man, and must have been well aware of the significance at least of his wife's application. I find that he was aware of and played a part, together with others in the community, in the decision that only the wife's brother would have any involvement in the initial proceedings. As matters developed, Mordechai, who is a part-time teacher living in Israel with 6 children of his own, also played little part in the process. However, for reasons which will become clear, I take findings in the Chancery judgment as the starting point for the issues which I have now to decide.

12

Mr Rosen found, amongst other things, as follows:

a. At the time of the purchase of the property the wife gave evidence that she had provided £103,800 toward the purchase price, her husband £32,900.

b. The husband was largely unemployed as a student in Israel and London, whilst she was the principal homemaker, as well as working in a series of jobs to make a financial contribution to the family.

c. The parties' fathers, and their community leaders, set out to structure the purchase of their family home in a ‘particular and unfortunate manner’. The parties would not otherwise have been in a position to buy the property which cost £418,000 in 2004.

d. The property was bought, as indicated, in the name of the wife's brother Mordechai, subject to an interest only mortgage with Bank of Scotland for £300,000. Mordechai provided no funds for the purchase, and made a false declaration at the time that the property was being purchased for his sole occupation.

e. The parties entered into a purported tenancy agreement with Mordechai, in order to obtain housing benefit. They made payments to Mordechai to cover the mortgage interest, but received a significant amount in housing benefit at the same time from the local authority – the London Borough of Hackney.

f. Mordechai was at all times a bare trustee, acting as nominee for the parties in their purchase of the property, and his taking on the mortgage as a nominee did not fall to be treated as a contribution to the purchase price. The family and community leaders upon whose directions and requests the parties relied and obeyed had an agreement that the property would be the parties' family home for which they would make all the necessary payments.

g. The parties' respective contributions were the best evidence of their common intention. The way matters proceeded was very heavily reliant on the wife to put everything into the purchase as both breadwinner and homemaker.

h. Some of the moneys were provided by community loans or other joint payments; and the parties made joint payments to Mordechai to cover the mortgage, but those factors did not outweigh the court's inferences about the division of interests.

i. The purpose of putting the property into Mordechai's name, and the creation of the tenancy, were to obtain funds from the mortgage, from housing benefit from the London Borough of Hackney, and from the Department of Work and Pensions.

j. The court had to consider the question of illegality of its own motion and volition; and that a plan of this nature is common practice amongst respected religious and community leaders is a cause of very great concern.

k. This arrangement resulted from the exercise of undue influence on the wife; being the pressure exerted on her by her father and others, which purported to have the backing of religious leadership; pressure exercised by dominant males within the community.

l. This is not a case where the parties involved were on anything like an equal basis when formulating or implementing the plan. The wife's interests were being put at risk, although she had concerns both about her and the family's wellbeing and about illegality.

m. The public policy against fraud is strong; but did not militate against the wife's remedy in this case as regards to declaration. The illegal activities had to be undone and remedied, which was assisted by the grant of declaratory relief.

n. The orders and judgments of the court would be referred to the tax authorities.

The Current Position

13

After that judgment was handed down, the husband decided that he would re-engage with the process, and sought to have the wife's application for possession and for a sale of the property transferred to the Family Division, where he had now launched an application for a financial remedy after issuing a civil divorce petition. That he had made such an...

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