WF v HF
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Macur DBE,BACKGROUND |
| Judgment Date | 05 March 2012 |
| Neutral Citation | [2012] EWHC 438 (Fam) |
| Docket Number | Case No: FD10D04494 |
| Court | Family Division |
| Date | 05 March 2012 |
[2012] EWHC 438 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Macur DBE
Case No: FD10D04494
Mr M Pointer QC (instructed by Vardags Solicitors) for the Petitioner & Mr N Yates
Mr L Marks QC (instructed by Manches LLP) for the Respondent & Ms C Cowton
Hearing dates: 17 January to 24 January 2012
PRELIMINARY OBSERVATIONS :
This ancillary relief dispute has been the subject of 3 substantive directions hearings and conducted at final hearing by specialist matrimonial leading and junior counsel on each side, instructed by specialist matrimonial solicitors and costing the husband and wife £2.4 million between them. Both the husband and wife have been surrounded by a legal entourage of at least 5 personnel throughout the 8 days of proceedings in court. I regret that these statistics have not ensured compliance with rules of evidence, the Pre-action Protocol and Family Proceedings Rules 2010 or the spirit of Practice Direction 25A effective for proceedings commenced post 6 April 2011. In these circumstances the raised emotions, distrust, entrenched positions and consequent waste of court time were entirely predictable. The position has not been ameliorated by the apparent disinclination of Counsel to communicate throughout the hearing save in the Court room itself culminating in the necessity for me to direct the exchange of written closing submissions before I was addressed on the same since otherwise "the usual practice" of providing them just at the moment when the address began would have been followed. It is difficult to conceive that either party can have their expectations realistically managed in such a scenario.
The open offers of husband and wife to resolve this case, dated 11 May 2011 and 12 January 2012 (superseding that of 29 June 2011) respectively, are irreconcilable in any degree save as they relate to child maintenance payable by or on behalf of the husband to the wife and a clean break in life and death. Amongst other proposals to settle the matter the wife seeks to vary the terms of the Peyton Place settlement and share agreement as described below so as to rescind the husband's life interest in the matrimonial home and in the Franklin shares, tantamount to leaving him an employee with a restricted salary of no more than £200,000 per annum. Conversely, the husband seeks to transfer the life interests he and the wife hold in Peyton Place to properties purchased with half of its proceeds of sale each and to remove the wife as director and shareholder of the company. I am not surprised that a privately funded family dispute resolution hearing before a retired judge of the division failed to achieve its aim.
The agreed and comprehensive chronology prepared for trial can be exhibited to this judgement. The relevant background, as I find it to be, may be summarised as follows. This is the husband's third marriage. He has been widowed and divorced. He has 4 children from his first marriage now aged 44, 41, 37 and 35. He has no continuing financial ties to his second wife. The wife in these proceedings has never been married before. At the date of their marriage on 20 December 1993 he was 62 and she was 32. They are now 81 and 50 respectively. Decree nisi was pronounced on 11 January 2011. They have 3 children together aged 17, 16 and 12.
The wife is acknowledged by the husband to be a loving and devoted mother. She relinquished her career on marriage and has been the main homemaker throughout. The relatively modest net proceeds of sale from her London flat, purchased in 1985 and sold in 1997, being £152,000 were invested upon the husband's advice in a portfolio managed by Singer & Friedlander. It has been augmented by contributions from the husband and has increased in value and inter alia utilised during the marriage for the purchase and/or renovation of properties for the use of the family.
The husband was a wealthy man at the time of his marriage to the wife. He is the chairman of the company he founded in 1971, Franklin Plc ("Franklin"). It has survived previous recessions and thrived. It looks well placed to survive the present recession and emerging competition from Asian markets. Patently, it is and has been well managed and directed. It is the origin and continuing mainstay of the family wealth. The husband had and has utilised the high financial rewards of his employment and shareholding to invest and create further wealth, purchase or enable the purchase of residential property and permit the family a conspicuously high standard of living.
I find on the evidence, principally revealed in a recently produced bundle relating to a tax investigation being conducted in 1992, that his many diverse financial interests at that time were not confined to Franklin. Of note, given the significance afforded to them on behalf of the wife, it is clear that the husband has had, and continues to do so, a particular interest in antique clocks and time pieces which is not confined to their aesthetic worth. There is no satisfactory evidence that these other financial interests continue to exist and whether they do or not is largely irrelevant in the circumstances of this case in that they would clearly constitute non-matrimonial property.
The marriage has been in difficulties on several occasions during the 16 + years before presentation of the wife's final petition. The wife has sought reassurance as to her own and the younger children's financial security at these times against the background of generous financial assistance and lifetime dispositions to the older children by their father resulting in the transfer of a valuable investment portfolio to the wife, creation of trusts, the deletion of beneficiaries from existing trusts and a share management agreement.
TRUSTS/SETTLEMENTS:
On 21 February 1996 the husband settled the "irrevocable" HF Family Settlement ("the 1996 trust") for the benefit of his children and remoter issue, their spouses, widows, widowers and their children and his own widow. A letter of wishes of the same date sought that his younger children's needs be considered a primary call upon trust funds during their education "and would not envisage payments being made to other beneficiaries" but thereafter, when they became independent, to make adequate provision for his widow if not sufficiently well provided for from other sources, to support the efforts of any child who appeared to be making a career in Franklin and, subject to these factors, for the benefit of all of his children equally. The husband endowed this trust with 30% of the issued Franklin shares in March and April 1996.
In May 1996 the wife was appointed additional trustee of the 1996 trust and in August 1996 became a non-executive director of Franklin. Thereafter it appears that in June 1997 a further "Letter of Guidance" was drafted upon the husband and wife's joint instructions to "make no mention of the [husband's] elder children". This letter has not been produced. I do not know whether it was executed. A signed letter of guidance dated July 1999 does not exclude his older children nor any of their children as potential beneficiaries in certain prescribed circumstances, but retained priority for the couple's own children and the husband's widow as before.
In July 2001 the husband transferred a further 18% of the total issued shares in Franklin to the 1996 trust. By deed of appointment in July 2003 the wife's sister was made an additional trustee and the elder children and their children were effectively excluded as beneficiaries of the 1996 trust.
The matrimonial home is Peyton Place, purchased after the marriage by the husband from the proceeds of sale of his former residence, another substantial country house. Following renovations Peyton Place was conveyed into the parties' joint names in 1994. On 4 July 2003 it was settled by the husband and wife in the "irrevocable" Peyton Place Settlement. The trust fund is defined as "the property and all property from time to time representing the same". The beneficiaries include the settlors, their children and their children's children. The settlors are expressed to have the beneficial use and enjoyment of any property that forms part of the trust fund.
In October 1998 SCI Amandier was incorporated in France, 90% of the shares being held by the wife and the remainder by the husband. The property, L'Amandier was purchased in the approximate sum of £900,000. Renovations/refurbishments were made. The husband and wife disagree substantially as to the cost of the same. They agree that more recently a budget of €1.5 m francs was assigned to further works – this to obtained from the portfolio held by the wife. In July 2004 the husband had transferred an additional plot of land to the SCI and thereafter endowed his 3 youngest children with his shares, merely retaining a usufruct.
On 4 July 2003 a shareholders' agreement was also drawn up between the husband, wife and 1996 family trustees ("the share agreement"). By that agreement the shares were re-classified into A, B and C ordinary shares and assigned as to 48% A and B shares to the 1996 family trust; 52 % of the A shares to the wife; 52% of the B shares to the husband; approximately 49 % of 14,444 C shares to the husband and 51% to the wife – they to be converted numerically like for like into A shares upon the husband's death and 7,000 bequeathed to FX, managing director of Franklin. The B shares carried all voting rights; the A shares all...
To continue reading
Request your trial