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England and Wales Family Court Decisions (other Judges)
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FI v DO [2024] EWFC 384 (B) (20 December 2024)
URL: http://www.bailii.org/ew/cases/EWFC/OJ/2024/384.html
Cite as:
[2024] EWFC 384 (B)
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Neutral Citation Number: [2024] EWFC 384 (B) |
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IN THE FAMILY COURT AT Manchester
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Manchester Civil Justice Centre |
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20th December 2024 |
B e f o r e :
District Judge Crisp
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Between:
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FI
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Applicant
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- and -
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DO
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Respondent
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Mr. George Paterson (instructed by MSB Solicitors, Liverpool) for the Respondent
Hearing date: 19-20th December 2024
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HTML VERSION OF APPROVED JUDGMENT
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Crown Copyright ©
This judgment was handed down on the 20th December 2024 by circulation to the parties and by release to the National Archives
- This is an application for a lump sum order, property adjustment order, periodical payments order and pension sharing order on behalf of the husband issued on the 22nd September 2023. It was agreed at the start of the hearing that the parties would be referred to as husband and wife.
- On the 23rd of February 2024 the husband issued a further application for a shared care order and return in relation to the parties golden retriever puppy. There appear to have been previous civil proceedings also relating to the dog which settled seemingly based on the claim having been paid in full. I am not entirely sure this is correct given the claim was for a substantial sum.
- There was a previous Family Law Act Order made against the husband on the 23rd June 2023 for one year.
- Due to this the Court directed at an earlier hearing on the 17th June that the husband would be prohibited from cross examining the wife and appointed a QLR for this hearing.
- The wife is represented by counsel, Mr Paterson and the husband has the benefit of a QLR . After questioning was completed and after I had put some questions to the wife, I asked the husband if he wished to ask any further questions which I put to the wife on his behalf.
Background to the Marriage and Asset base.
- The parties were married on the 10th of December 2010 and separated in November 2022. An application was made for a divorce on the 31st of October 2022 and a conditional order was pronounced on the 4th of May 2023. The final order has not yet been pronounced. On the basis that the parties confirmed they had not resided together since the date of the conditional order I also give permission for the wife to make an application for the final order.
- The parties have two children namely AB born on the 22nd May 2011 and CD born on the 1st February 2017. There are proceedings in relation to the children before the Court. The children reside with their mother and are currently not having any contact with their father.
- The parties jointly own a property "the family home" which is subject to a mortgage. They had started off their married life in rented accommodation. Both parents had assisted with the purchase of the family home although the husband's mother had been repaid the monies, she had loaned them.
- The husband is working as a self-employed mechanic and is in partnership with another person. He says that his income has declined over the last year or so.
- The wife works part time as a Dental nurse having reduced her hours after the parties separated to assist with the care of the children.
- Both parties accept that the family home needs to be sold and both currently accept that they cannot purchase another property but hope to do so in the future.
Issues
- The husband seeks the sale of the family home with the net proceeds divided equally. He seeks a pension sharing order in relation to the wife's pension or an offset to cover his loss under that pension.
- He seeks the return of the sum of £544.37 being an amount he is owed from a split share account the parties set up shortly after they separated to cover financial outgoings. He seeks a declaration of ownership of the family dog and a shared care arrangement.
- The wife seeks a sale of the family home and an unequal division of the net proceeds 70% in her favour. She also seeks the retention of the family dog on the basis that the dog can accompany the children to the home of the husband if such contact is permitted by the court.
- The wife during the hearing changed her position regarding the dog and stated that she did not think it was in the dog's best interests to spend time with the husband due to his behaviour on the 12th of December. A fact that I will determine later in this judgment
- The parties had agreed during the hearing not to pursue the issue of the gold and the cash held in the safe. Further the wife agreed with the return of personal belongings set out in the husband's position statement.
- Both parties agreed to divide the chattels in the family home prior to sale and both seek a clean break.
Assets
Family Home |
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290,000 |
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Net |
142,485 |
Aviva Pension |
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10,300 |
Liabilities
Wife |
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£26,656 such sum includes £20,000 towards her legal aid costs |
Husband |
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15,611 |
Evidence
- The bundle before the court bearing in mind the level of the assets exceeds the 350-page limit by some margin. There are 1337 pages of evidence. The court has not given permission for such a bundle to be filed. It is a mark of this litigation that the section 25 statements only total 6 pages.
- The wife does not have a borrowing capacity and whilst the husband has not filed details of his borrowing capacity given the level of his income and the fact that he is self employed I doubt that he has a significant borrowing capacity.
- There are separate statements filed relating to the family dog.
- The husband says he is working 35 hours a week and has a net income of approximately £17,500. He is maximising his earning capacity. He says that his wife works part time and that she could increase her hours and achieve an income of about £33,000.
- He says that both parties have equal housing needs, and that the wife is in breach of a 50/50 child arrangements agreement that she signed when they separated.
- Since Covid he suffers from anxiety and depression, and this has significantly impacted his day-to-day activities. He has had to reduce his working hours due to this. He maintains that this is a long-term condition and qualifies as a disability under the Equality Act.
- He sets out at length the fact that he and his wife never shared a joint bank account and that he was solely responsible for payment of all household expenses and gave his wife cash regularly. She kept all her own income. After they separated, they operated an app called split wise
- The husband says that the dog N was purchased by him for £1200.00 cash. The wife did not make any financial contribution towards the purchase.
He was the one who trained the dog and registered her as a Disability Support dog supported by a letter from his medical practitioner. He sets out that he suffers from a mental health disability. He requires the return of the dog to assist with regard to his anxiety and depression. He said that after the parties separated the wife did not look after the dog and she refused to feed or walk her. He became the sole carer for her.
- He says that the incident on the 12th of December arose when he was out in the community visiting his previous dog's grave when he saw what he thought was his dog running freely in the area. He said that he took the dog, and she was happy to go with him. He was later arrested by the police who removed the dog and returned her to the wife.
- Under cross examination he said he was exercising his legal rights and that he had more right than the maternal grandmother who was walking the dog, so he took her. He said he always kept a lead, harness etc in his car, he had not planned to take the dog. He accepted that the dog had run off back to the family home and that he had followed. He denied dragging her but accepted that the dog had run off as she had not recognised him initially. He said that it would not have been distressing for the grandmother, the wife was not there so she shouldn't be upset, and the children should not have been told. It was his dog and he paid for it out of his pocket.
- He said in relation to his debt that he had taken out a loan in November 2022 of £20,000. He said he had a mental breakdown, and it was to cover living costs whilst he was unable to work.
- He accepted when I asked him that he had had the benefit of the sale proceeds of matrimonial assets after the parties separated.
- The wife confirmed that she was working part time and had to reduce her hours to provide support for the children. She was not able to increase her hours as there were no available positions. She disputes the level of income which the husband advises he earns. She receives only £7.04 a week for the children following a CMS assessment.
- She says that her liabilities are marital debt and disputes that the husband's liabilities are matrimonial as he took out the loan after they separated, and she filed for divorce.
- She maintains that the husband has caused her to incur excessive legal costs with inappropriate questionnaires, supplemental questions and schedules of deficiencies . In addition he issued civil proceedings relating to the parties dog. He had provided no proper disclosure and his explanation for the drastic reduction in his income was not plausible.
- The wife's evidence is that N was purchased by the family jointly and their daughter used £320.00 of her birthday money, she contributed £280, and the husband paid the balance of £600.00. The dog was purchased as the children were distraught after the loss of their previous dog She is the registered keeper, she registered her at the Kennel Club and pays for all her veterinary bills, insurance and the like.
- She does not accept that N was ever registered as a disability support dog whilst they were together and says that her husband issued civil proceedings for loss of earning relating to the dog. The letter that she received stating that the dog was registered as a disability support dog was dated 26th February 2024.
- The husband on the 12th December forcibly took the dog from the maternal grandmother whilst she was out walking the dog. She said that her mother who is aged 72 called her in distress at 1.10 saying the dog had run off because of the husband and that he was chasing her. She had recorded him dragging the dog into his car from the family home where the dog had run back to. The husband was arrested by the police and has been reported to the RSPCA. The dog was returned with damage to his paws from being dragged away by the husband. The children have been incredibly upset over the incident.
- She said that she, her mother and the children were very distressed and that neither of the children could sleep. She had told the children as they had asked where the dog was, and when she tried to fudge the answer, her daughter asked "has dad taken her" to which she answered truthfully.
She was asked under cross examination about the cost of the dog, and she said she was told by her husband that if they wanted to purchase this dog it was too much, and they would all have to pay towards it. She said that J had money from her birthday and that they both paid one half of the cost
- She said she was not surprised the dog did not recognise him as it had been 18 months since he had seen her and 18 months in a dog's life was a significant period.
- She was not able to increase her hours now as there were no opportunities, but a member of staff was pregnant, and she may be able to increase at some point in the future. She had reduced her hours to provide care for the children and support them after the marriage breakdown. She was working 20 hours now instead of 35.
Costs
- The costs of the Wife total about £21,000 and I estimate that a further £5,000 will be expended on the Children Act to finalise. The wife will be subject to the statutory charge.
- The husband is a litigant in person and does not have any outstanding costs.
The Law
I remind myself of the following provisions of section 25 of the Matrimonial Causes Act 1973:
Matters to which the court is to have regard in deciding how to exercise its powers under section 23, 24 and 24A
(1) It shall be the duty of the court in deciding whether to exercise its powers and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not yet attained the age of eighteen
(2) As regards the exercise of the powers of the court in relation to a party to the marriage, the court shall have regard to the following matters-
(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in capacity which it would in the opinion of the court be reasonable to expect a party in the marriage to take steps to acquire.
(b) The financial needs, obligations and responsibilities which each of the parties has or is likely to have in the foreseeable future
(c) The standard of living enjoyed by the family before the breakdown of the marriage
(d) The age of each party to the marriage and the duration of the marriage
(e) Any physical or mental disability of either of the parties to the marriage
(f) The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contributions by looking after the home or caring for the family.
(g) The conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it.
(h) In the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
I have also been referred to the case of RK v RK [2011] EWHC 3901 (Fam) Moylan J in relation to the dog.
" I do not consider it appropriate to make any order in respect of one of the dogs, because on the evidence I have heard, they would seem to have been principally looked after by the husband"
Findings of fact
- Both parties gave evidence which veered off the point at times albeit I accept that both are upset, and the husband does have a mental health disability. It has not helped this case that such a level of information was put before the court about who paid for the dog and who owned the dog. As I said during their evidence it matters not who paid for the dog. The dog is a chattel. At times it seemed to me that I was in the realms of a Children Act application which featured the dog when the wife was cross examined about the dog's welfare and shared care arrangements. I set this out because I have no doubt that if this feature could have been agreed other matters may have been able to be agreed.
- It is of course trite law that the burden of proof falls on the party alleging the fact and that it is the civil standard which I must apply, that is the balance of probabilities
- I do not accept the husband's stated level of income. If it was to be accepted that he only earns £17,010 gross. I ask myself how does he manage to incur expenditure as set out on his Form E of £4,067.00 a month. I accept that some of that is inflated but even if I were to accept half of this perhaps that shows the true level of his income. Even if this were correct the husband would face a finding being made that he is not maximising his income.
- He held in January 2023, just after the parties separated, the sum of £11,907.88 in his current account. That sum together with a further £3,877.84 paid in from HMRC was spent by the 11th of April 2023. The monies were used towards personal expenditure such as eating out, holidays and clothing amongst other expenditure. I do not accept as he maintained in evidence that it was furnishing his property and supporting the household. The bank statements do not support that. That is a sum of approximately £4,000 per month.
- He maintained he had cash "savings" which he paid into that account. I find it was work that he has undertaken for cash either during these proceedings to reduce his stated income or previously undeclared income. From April 2023 to November 2023 there was £8460.00 paid into his account.
In addition to this he received the sum of £6010 for the sale of a yacht part owned by him; £7999 in respect of a motor vehicle sold by him and £4550.00 in relation to the sale of a motor bike. Those monies with the exception of the final balance of the motorcycle were received from May to December.
That totals £24,119 which the husband has had the sole benefit of from joint assets since April to December 2023. That I remind myself is in addition to his income from which he pays the wife approximately £400.00 a year in child maintenance.
- The husband also took out a personal loan in November 2022. It is clear from the documents provided, that there was no rationale for taking out this loan as the husband had monies in his current account. I do not accept that this is a matrimonial debt, rather that he has used the same for his own purposes.
- I cannot make a finding that the wife's liabilities are matrimonial as despite the wealth of evidence I cannot ascertain to the requisite standard that her liabilities are matrimonial. They may have been caused due to the level of child support being paid by the husband.
- I find that the registration of the dog as a support dog was first registered in February 2024. If the dog had been registered before it would have been easy to go onto the internet and get a copy of previous registrations. Equally if one considers the civil claim and the letter before action written in January 2024 it does not ask for return of the dog because he is a support dog but that he wishes the dog to be delivered up or a shared care arrangement together with a money claim of £39,600.00 for the loss of litters during the dog's lifetime. Those facts do not support that this was a dog purchased as a disability support dog. Rather that the husband saw the dog as a potential income stream. I find that the husband has registered the dog to support his claim that she should be returned to him.
49. Whilst I believe it is irrelevant to the issues in this case, I accept that the parties jointly purchased the dog. There are documents showing the wife as owner, registrations carried out by the wife but importantly the letter before action written by the husband states – "On the 30th of May 2022 ………… jointly purchased a female Golden Retriever.
- I also accept the wife's evidence as to the payment of the monies from herself and the parties child. This fits in with the husband's demands of the split share account in which the parties were expected to contribute jointly to all matrimonial outgoings.
- Dealing with the split share account I accept the wife did not pay into that account, but I accept her evidence that in June she was forced to take over payments of all household bills including the mortgage payment from July and was worried about paying all the bills by herself without assistance. She should not have to repay any monies to the husband.
- I will deal with the alleged abduction later in this judgment.
Income, earning capacity and other financial resources.
- The husband is self-employed as an MOT tester. No recent accounts have been provided but I do not accept the husband's evidence and believe that his income is more in the region of £25,000 net as suggested by the wife.
- The wife has reduced her hours to provide care for the children. She works 20 hours a week and earns £16,000 a year. She has the benefit of Universal Credit and Child Benefit of £7655.00 in addition. She receives £366.08 a year in child maintenance from the husband. She is maximising her income albeit I accept in the future that she may be able to return to full time work. I bear in mind however the ages of both children especially the younger child.
- The wife has the benefit of a small pension of £10,000.
- She has outstanding liabilities of £26,556 and a further £5000 to pay on legal charges. The husband has liabilities of £15,611
Financial needs and obligations
- Both parties require a property in which they can live. The wife is the sole carer of the children. She accepts that she cannot raise a mortgage and therefore accepts that the family home will have to be sold. She has set out details of rental properties which she has considered which would cost in the region of £1-1200 per month. This is more than the current monthly instalment on the family home which she has been meeting since the parties separated in November 2022. The wife will struggle to meet her expenditure and sadly will have to utilise her capital to allow her to meet both her own and the children's needs. Her monthly needs are likely to be in the region of £2500- £2700 per month set against her income of £2028.
- The husband says he will need a three bedroomed property, but no information has been filed by him regarding rental properties , I assess that he could manage with a 2 bedroomed property, and I assess that would cost in the region of £800.00 – 1,000 per month. His monthly needs I assess in the region of £1500 - 1700. He can meet his needs based on my assessment of his true income.
Standard of living
- The parties had a reasonable standard of living.
Ages of the parties and duration of marriage
- The husband is aged 41 and the wife 46. The marriage was a reasonable length of 12 years.
Any physical or mental disability of the parties
- I accept that the husband suffers from anxiety and depression. There is evidence to that extent from his GP. The wife is in good health
Contributions
- Both parties have contributed to this marriage as I was at pains to pint out during the hearing when the wife was being cross examined as to her financial input as set against that of her husband. Contributions can come in all shapes and sizes and the contribution of the wife as a home carer and importantly in this case to provide for the children cannot be ignored.
- Currently the husband's income calculated by CMS provides a derisory sum in relation to the care of the children. This will mean that effectively the entirety of the financial burden of the children will fall on the wife. This is a fact and the sale of the family home as I have outlined earlier in this judgment will cause the wife financial loss as the rental payments will exceed the current monthly instalments which she is currently discharging. I have already said that I do not think she will be able to meet her expenditure and therefore will need capital to draw from.
Exercise of the Court's powers.
- The starting point of any financial division should be on an equal basis. The court can depart from equality on needs. Needs however as was submitted on behalf of the wife can be elastic and are not confined to the purchase of a home. They are to meet the needs of the children in this case which are in turn met by the wife.
- The assets in this case amount to £142,485 being the net equity of the family home In addition the husband held £11,907 in his bank account and £24,119 which was either sale of matrimonial assets or cash he had access to . The husband accepts that he has used these monies to the exclusion of the wife. It would not be correct to add this sum back in full as it is not wanton dissipation, I have set it out for the benefit of the husband as to assets he has had the sole use of given his insistence on equal division of all assets. I have not added in the pension as it is not a liquid asset, it is a minimal sum, and the wife is some 6 years older than the husband. The wife should retain that in full.
- That provides on an equal division £71,245. There are also the legal liabilities which the wife has incurred and will have to be paid back. That sum is £26,000 and some of those costs have been incurred unnecessarily. If one deducts the costs therefore that would provide each party with £58,242.50. Whilst the husband may object to the costs being deducted, I am satisfied that he has caused unnecessary costs given the wealth of questionnaires, supplement questions and the pursuit of issues such as the ownership of the dog
- The wife I believe will need a capital cushion to cover her expenditure for some 24 months. I assess that at £14,400. Each party would I hope at some point in the future be able to purchase a property and the wife should have security of housing for herself and the children. The capital from the family home should assist to provide each party with a deposit.
- The wife should receive therefore the sum of £98,642.50 which is 69.23% of the net proceeds of sale. That would leave the husband with £43,842.50 but I remind myself he has had the benefit of at least £36,026 in addition which is higher than the sum the wife will receive after payment of her legal costs. That sum would enable the wife to pay her legal costs cover her capital expenditure for the next two years and leave her with a lump sum after discharge of her liabilities to purchase a property.
- The husband's needs I find can be met from income. He will have a lump sum from which he can purchase a home in the future even after paying his liabilities. I assess his housing costs at less than the wife as she is the main carer for the children.
- The final issue in this case is the ownership of the dog. This is a thorny issue between the parties. Both parties jointly purchased the dog. I found the wife's evidence compelling when she said "I would not force a dog to come away when he didn't know me " when talking about the alleged abduction of the dog. She has lived with dogs all her life and they are an integral part of her's and importantly the children's lives. The husband has no inclination as to the upset that will have been caused to the grandmother ,the wife and the children when he forcibly removed the dog from the grandmother outside of the family home. I do not accept that he did not take the dog forcibly as he suggested. Of course the grandmother would have been upset as she was responsible for the care of the dog, similarly the children as they will see it as their dog. Whilst I may understand the husband's actions as he sees the dog as his right "I have more right than the grandmother" he fails to understand the implications of his action which impact the family and the dog . I also do not accept his evidence that the wife did not care for the dog after they separated, her evidence was far more in tune with someone who has the welfare of the dog at heart.
- The legal authority to which I have referred provides assistance as to who has principally looked after the dog. Not who has purchased the dog, that fact in my view is not as important as who the dog sees as her carer. This is not who had previously looked after the dog, but who does now. It is an agreed fact that the parties separated and the dog has been cared for solely by the wife since that separation some 18 months previously. I accept what the wife says 18 months is a long time in a dog's life. It was clear when the dog ran back to the family home after he had been taken by the husband that the dog considered that to be a safe place and where he belonged. The wife's evidence as I have set out was compelling but more importantly in my view showed someone who understood about dogs, was compassionate and would always put the dog's interests first. The dog's home is with the wife, and she should stay there. It would be upsetting for both the dog and the children were those arrangements to alter. The husband has managed without a dog for 18 months and it does not therefore seem necessary for his support, even if that were the case which I do not accept was the position at the time the parties separated.
- The order should therefore provide for sale of the family home based on a 69.23% in favour of the wife. Any sale monies received over the sum of £290,000 should be shared equally. Both parties should have conduct of the sale.
- Each party should retain the assets in their sole name free from claim
- The wife should retain ownership of the parties dog
- The contents should be divided at the point of sale. The personal belongings and the photographs should be returned to the husband within 28 days from today.
- Clean break between the parties