WS v WS
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Lord Meston |
| Judgment Date | 11 December 2015 |
| Neutral Citation | [2015] EWHC 3941 (Fam) |
| Date | 11 December 2015 |
| Court | Family Division |
| Docket Number | Case No. FD13D04106 |
[2015] EWHC 3941 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
His Honour Judge Lord Meston QC (sitting as a deputy High Court Judge)
Case No. FD13D04106
Nigel Dyer QC instructed by Sears Tooth for the Applicant
Robert Peel QC instructed by Alexiou Fisher Phillipps for the Respondent
Hearing dates: 7–11 December 2015
His Honour Judge Lord Meston QC:
Introduction
This judgment is given following the hearing of the applications by Mrs WS for financial remedies under the Matrimonial Causes Act 1973 following the dissolution of the parties' marriage.
It is apparent that considerable efforts had been made to resolve the financial disputes and to define and narrow the issues. Subject to the very recent suggestion of a pension attachment order, it is common ground that there should be a 'clean break'. It is also common ground that the matrimonial property should be divided equally, there being no argument to suggest that any departure from equal sharing would be justified in the circumstances of this case. As the case has developed there have been fewer factual disputes of relevance. With the assistance of experts' reports the value of the property and business assets available for distribution are largely agreed, with only some relatively minor disputes as to value.
During the hearing the court heard evidence only from the husband and the wife. Although these proceedings have been somewhat protracted and there was an unsuccessful private FDR appointment, in their written and oral evidence the parties have shown restraint and avoided any unnecessary point-scoring.
Background
Mrs WS (the wife) is 56 years of age. Mr WS (the husband) is 61 years of age. They began cohabitation in 1983 and were married on 18th May 1985. There are 2 children of the marriage, a daughter who is almost 25 years old and in employment; and a son who is just 21 years old and at university. There is no dispute as to the parties' remaining responsibilities towards their son.
The parties separated in 2012. Divorce proceedings were brought by the wife. A decree nisi was pronounced on 14th April 2014. It has not yet been made absolute.
There is reference in the statements to the wife's relationship with another man and she gave evidence about it indicating some uncertainty about how it might develop: there has been no evidence or argument about whether the relationship is likely to have any practical or financial consequences of relevance to this case.
In this case the evidence is clear that at least until the breakdown of the marriage both parties made a full, substantial contribution and that no proper distinction can be made between them in that regard. In the agreed case summary it is stated that the assets are a mixture of properties (residential and commercial), cash, listed and unlisted investments and pension funds, and that broadly speaking the assets have been acquired during the marriage and the parties have made equal (but different) contributions. Although the parties' financial positions are not wholly similar, neither of them could be categorised as the weaker party in economic terms or is likely to be significantly weaker following the equal division of assets.
For much of the marriage the wife has pursued a successful, high-earning career in investment management. She was formerly employed by Morburg Bank and for some time has been managing director of SGR Investments Ltd which is part of an international bank. In her Form E in September 2013 she stated her gross earned income from SGR in the last financial year as shown on her P60 to have been £357,207 gross and from her 2 non-executive directorships to have been £55,000 gross. Her P60 for 2014–15 shows income from SGR Investments Ltd of £704,490 gross which, in evidence, she explained was a combination of salary, bonus and vesting of bank shares. In a recent statement she explains that reorganisation within her company has meant that her role has ceased and that she has given notice of her retirement in February 2016.
She hopes then to acquire perhaps 2 further non-executive directorships. It therefore appears that she has future earning potential, albeit probably not at the same level as hitherto.
She is presently living in rented accommodation in Hampstead.
The wife has recently received notice from HMRC claiming £254,240 for tax on the benefit of a written-off loan from her employers which, if justified, might also involve liability for interest and penalties. She has taken advice and is challenging this claim, and may also seek an indemnity from her company.
The husband was a stockbroker until redundancy in 1990 since when he has worked from home as a consultant and on property projects, mainly with CDP Ltd and its related holding company Avon Trust Ltd. It is apparent he has also involved himself in other ventures in Britain and abroad.
For a period the wife's employment took the family to America, and on their return in about 1996 they acquired the final family home High Trees Farm, with about 60 acres.
The husband has developed the parties' business and property assets. In his recent statement he has said that the result of the family's financial affairs being built up in that way over 30 years is that the wife is left with a very substantial earning capacity, while his ability to earn is tied up in the capital assets.
The husband has remained in High Trees Farm on his own since the end of the marriage. In 2013 the wife ended her monthly payments of £5,000 into the joint house account. The husband's recent statement refers to what he has found to be a growing administrative burden. He has suffered from depression and anxiety for which he has required medical attention, and a report has been provided describing his current problems and symptoms. It is to be hoped that these will reduce once these stressful proceedings have concluded.
The husband has an investment with a Kenyan company called YZ Fuels which, according to his answer to a questionnaire, he regards as a source of future income for so long as he continues to work in the business, rather than as a capital asset. In his most recent statement he described the nature of the business and his involvement with it and he suggested that his interest in it was worth £200,000. He has disclosed irregular but substantial consultancy payments received from YZ Fuels.
Because of the efforts and financial acumen of both parties the family appears to have enjoyed a high standard of living and to have acquired the assets now available for distribution. The wife has been able to maintain a high standard of living which includes renting a property in Switzerland and acquisition of a yacht.
The proceedings
The wife's application was activated by a notice in Form A dated 30th August 2013 in which she sought the full range of available financial remedies including property adjustment orders relating to 7 properties. There has been no cross-application by the husband.
An order made on 13th November 2014 by Mrs Justice Parker gave necessary directions leading to a final hearing. The order recited various agreements by the parties. One agreement was for the sale on the open market of 6 of the properties (with a provision that either party might seek to purchase any of the properties at open market value). Another agreement was as follows:
"The parties agree that neither of them will seek a pension sharing order, but instead will invite the court to consider offsetting in its approach to the difference between their respective pension provisions based on cash equivalent values".
Parker J refused an application by the husband for an expert pension sharing report and refused permission to appeal from that decision.
The remaining directions made by Parker J were designed to obtain evidence to assist in the efficient realisation of the assets.
At a pre-hearing review before District Judge Robinson on 9th October 2015 it was recorded that the parties agreed that the following issues then appeared to be in dispute:
(a) The value of residential properties subject to a report by Savills
(b) Which assets should be retained by either party.
(c) Whether a discount should be applied to the net asset value of CDP Ltd/Avon Trust Ltd if either party retains the shares.
(d) The methodology for offsetting between the parties' pensions.
(e) The value of certain assets.
The assets and liabilities
Given the agreement as to values it is unnecessary to reproduce in full the schedules of assets. Apart from pensions the assets are as follows:
(a) There are property assets worth a total of £4,333,437 net of mortgages, costs of sale and CGT. This includes High Trees Farm worth £3,500,000 before deductions. The mortgage to Lloyds Bank (formerly the Bank of Scotland) is £1,000,000 which is repayable as to half in December 2015 and half in December 2016, although an extension of the first repayment has been agreed until February 2016.
(b) There are joint accounts and investments of £47,613.
(c) The husband has bank accounts and investments (less liabilities) amounting to £1,973,228. This is subject to an adjustment in respect of the husband's outstanding legal fees to £97,954, and to a dispute as to value of the husband's in a venture in Canada called Lecare.
(d) The wife has bank accounts and investments (less liabilities) amounting to £2,557,098.
(e) The parties' partnership known as High Trees Farm & Consultancy was shown in the schedule as worth £50,000 based on the husband's Form E, although the husband says...
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