England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		22 May 2007

MRS JUSTICE BARON:

1. This is an appeal by FES ("the husband") from an order made on 9 August 2006 by District Judge Jacks sitting in the Stafford County Court. On that occasion the learned District Judge made the following order:

"IT IS ORDERED SUBJECT TO DECREE ABSOLUTE THAT

1. BY CONSENT, the husband do transfer all of his interest in the property at 14 Midmar Crescent Aberdeen to the wife subject to the mortgage thereon.

NOT BY CONSENT

2. The husband do pay a lump sum to the wife of £199,216 by 9th September 2006."

He also made a pension sharing order, such that each of the parties was to receive one half of the extensive pension funds.

2. Pursuant to section 24(1)(c) of the Matrimonial Causes Act, he ordered that there be a variation of settlement for the benefit of the children of the family, appointing the wife to be a trustee with the husband of settlements created by the husband for the benefit of the children, with the Leek United Building Society and the Equitable Life Assurance Society. He made other orders in relation to the transfer of various chattels, provided for a clean break and made no order as to costs. He also ordered that, if there was an appeal in relation to his order, that the matter be transferred to the High Court to be dealt with by a Judge of the Division, with a time estimate of one to one and a half days.
3. His order was premised on the basis of an equal division of all of the family assets, including the pensions, save for two assets held in the sole name of Mrs JS ("the wife"), which he ring-fenced and left in her sole ownership. The justification for such being the facts that (i) the two assets had emanated from her family in 1996 and (ii) had been retained by her as separate property during the course of the marriage. The two assets consisted of a 50 per cent share in her parents' matrimonial home at Duthie Road, Aberdeen (which was worth about £72,500) and a bond (worth about £114,200) which had been purchased with funds which had emanated from her family. Those two assets totalled £186,700 and represented about 8.6 per cent of the overall family assets. Accordingly, by ring-fencing those assets in favour of the wife, the final division of family assets produced a 17 per cent differential between the parties. It is the husband's case that that was unfair and plainly wrong in the circumstances of this particular marriage.

The Factual Matrix

4. The husband was born on 1 December 1948 (now 58 years old). The wife was born on 1 June 1956 (51 years old). The parties married on 2 July 1983 when they were respectively aged 34 and 27 years. It was their first marriage. Of course, it is immediately apparent given their ages that each had established themselves prior to their marriage. So far as I can tell, the husband had gone to university and had graduated in 1974 with a BSc. Thereafter he took an MSc and DPhil. He took up a job with Conaco. The chronology indicates that as early as 1975 he purchased his first home in Louth. Thereafter he moved to London and purchased a small two bedroomed flat in Ealing. In 1997 he joined Oxidental Oil, which later transmogrified into Total Oil. His job took him to Aberdeen where he purchased a property at 7 Westward Crescent (that being a three bedroom detached house) with an 85 per cent mortgage. He joined his company pension scheme. He was working in the oil industry, which at the time was, as everyone knows, one of the higher paid jobs available.
5. The indication is that by the date of the parties' marriage in 1983 he had acquired savings of between £30,000 and £50,000, together with insurance policies and the equity in his home.
6. The wife also had a career, albeit that it was not as highly paid as the husband. She has informed the court through her counsel that she believes that throughout her life she has suffered from undiagnosed dyslexia with the result that she has always lacked confidence with written work. As I understand it, in her early years, she worked for her father in his hire business. Shortly after the marriage, the wife gave up her employment in order to care for her husband and, when they arrived, their two children.
7. Until about 1990 this couple lived an expatriate lifestyle, working in many incommodious places. In the end, they returned to the United Kingdom, primarily for the benefit of their children. I doubt that this wife would have worked outside the home, even if she had not had commitments to the children and endured the expat life which I have described. This was a conventional marriage of breadwinner and homemaker.
8. Each party brought to it different talents and made equal, if incommensurate, contributions to the welfare of their family - the husband through his prodigious earnings and the wife through her care for the family. In addition, the wife came from a prosperous family, which hailed from Aberdeen. Her father, A, was born in April 1921 (now 86 years old). Her mother, C, was born in February 1924 (now 83 years old). The wife is their only child and she is close to her parents. Whilst the marriage subsisted and the parties were on good terms, the husband to a degree helped the W's parents with their financial affairs, although there is a suggestion that on following his advice, they lost some money. In any event, he was privy to their wills. It was his evidence that in 2001 he knew that they had made mutual wills to the effect that there was to be a payment of the nil rate tax band to the wife, a life interest to the survivor of each of them, be that either the father or the mother, some small bequests to cousins and, after the death of the survivor who held the life interest, the balance to the wife. It was the husband's evidence before the District Judge that he believed that the wife's parents had assets of between £1 million and £1.5 million, although he was unable to be specific it is right to point out that his information was outdated in the sense that he had not had any communication with them since about 2001.
9. The wife was unable to give any evidence in relation to the contents of her parents' wills. She told the District Judge that she had never discussed the issue with her parents and so did not know about their testamentary dispositions. Under cross-examination she was asked whether she expected her parents to make any provision for her or would be surprised if they did not. Her reply was, as the District Judge pointed out, that any daughter would have expectations.
10. The issue of her potential inheritance was one which detained this District Judge for a great deal of the trial. He made the following findings:

"The description by the husband of the assets of the parents and the contents of their Wills carried with it for me the ring of truth. I am satisfied and find as a fact that the husband's recollection is accurate, particularly as there is no evidence from the wife to contradict what he says. I therefore find as a fact that in 2000/2001 each of the wife's parents had made an identical Will leaving at least the amount of the inheritance tax relief to the wife, and possibly the remainder of their estate to her, subject to bequests, as a contingent interest."

He carried on that he was not clear what had happened in the intervening period. His specific finding in relation to that is as follows:

"It seems to me that there is no firm evidence upon which I can find as a fact, on the balance of probabilities, that the wife will inherit on the death of her father, or her mother, whoever dies first, nor that it is remotely possible to assess the present value of their assets. I am therefore not satisfied that that which is owned by the wife's parents is property which the wife "has or is likely to have in the foreseeable future"."

Further he added:


"… if I am wrong in that, there is one principle which emerges very clearly from all the previous cases, and that is that an adjournment has been ordered where it is not possible to do justice fairly between the parties in relation to their existing assets and the settlement thereof. In the case of Mr & Mrs S, they have accumulated during the marriage substantial assets, which can be divided fairly between the parties such as to provide comfortably for the needs of each of them. To use the words of Mrs Justice Bracewell, it is not necessary for there to be "an order for an adjournment as the only means whereby justice could be done to the parties"."

11. It is clear to me that a great deal of the three day hearing before the District Judge was taken up with consideration of whether the husband's application for a lump sum and transfer of property order should be adjourned to await the outcome of the wife's prospective inheritance, whether he should receive a designated percentage proportion of it or whether, were it to come to fruition, he were to receive a greater proportion of the current family assets to adjust for the fact that the wife had a future and, as he put it, "expected" inheritance. It was a topic of hot debate.
12. In fact this case took a great deal more than the estimated three days which I have already outlined. During the course of the hearing, an issue arose as to whether the children's bank accounts and insurance policies which had emanated from the husband's resources, should be subject to a transfer of property order. Thus, although the hearing was in November, the learned district judge reserved his judgment and in the following four weeks, he wrote to the parties' solicitors seeking clarification in relation to the issue of the children's trust. He asked for an affidavit to be prepared to assist him with this point. After he had received that document, he took further time to consider the matter, and in about February 2006 wrote for further information by way of a "questionnaire".
13. He did not have the benefit of statements from the parties, setting out their respective detailed section 25 cases. It seems to me that cases such as this, which are not simple or run of the mill, a Form E is not sufficient to give the Court sufficient and full information. Therefore, as a matter of course, parties should set out their case clearly in statements before the commencement of a trial. This would avoid circumstances as arose in this particular case, with points arising during the course of the hearing which obviously caused the tribunal some concern. By February 2007 the matter had been long delayed. The District Judge finally handed down his judgment in April 2006.
14. That in itself was not the end of the matter, for a further hearing was required to determine the terms of the order and consequential matters. That was listed for half an hour in July 2006. That hearing had to be adjourned for lack of time and a final hearing was offered to the parties on the 9^th August 2006. That was the day upon which the District Judge made his final order. It is easy to see that many months had passed since the proceedings were dealt with by him. To my mind this chronology is most unsatisfactory for the parties and the court alike, particularly as it is costs-generative. All delays mean that the litigation continues, with all professionals concerned required to read the papers each time there is a hearing. That in itself is costly. I do not consider that it is appropriate for any hearing of this type to be delayed in this way. The costs before the District Judge were very high. The husband's side have told me that their costs were £60,000; the wife's some £30,000. That is a total of £90,000, which I remind myself is about 4 per cent of this family's wealth. The costs of this appeal have added to that burden. Some £22,000 worth of costs on the husband's side and £14,700 on the wife's side, another sum approaching £37,000.
15. The total bill of costs now is £127,000 in the round, which is nearly 6 per cent of this family's assets. It is immediately apparent to me it approaches the amount of the assets that were "ring-fenced" by the learned District Judge. It is a tragedy for this family that this amount of money has had to be spent.
16. In this case the parties did not have an effective FDR. When the matter came before District Judge Jack on the date fixed for the FDR, he was informed that it could not go ahead. His involvement on that occasion was so slightly that both of the parties accepted that he could, despite the rules, undertake the final hearing. Obviously he had not sought to mediate in any way between these parties. The FDR procedure must be undertaken in an effective way in every case, for it gives every party the opportunity to settle the litigation, to air the issues and to have neutral judicial evaluation at a time before the costs have denuded the parties' assets in the manner in which they have in this case. As a general principle, therefore, I make it clear that where an FDR is not effective, it is incumbent upon the court to fix another appointment as soon as practicable in order to ensure that there be such mediation. It must come before an experienced tribunal and it must be given sufficient time to enable that tribunal to read the papers fully and to engage with the parties/their professional teams in order that the matter can, if possible, be sorted out.
17. The unsatisfactory chronology in relation to this case is in some part due to tactical decisions that were made in relation to the divorce itself. The parties are not ad idem as to whether the marriage broke down in 2001 or 2003. The precise date is irrelevant to my judgment, but the wife commenced proceedings initially in Scotland.
18. By the end of the marriage the parties had two homes, one in Aberdeen and another in Uttoxeter, England. As the couple lived abroad, the husband had been able to accumulate savings with which he reduced the family mortgages and eventually enabled him to buy a second property in Staffordshire. The latter property being a necessary base because the children were being educated in England.
19. I have not mentioned the children in great detail, but L was born on 18 August 1985 (now 22 years old). She attends Dundee University where she has taken a degree course in American Studies. She is fast approaching full independence. The parties' second child is C, was born on 4 June 1988 (nearly 19 years). She is in her final year at Abbott's Home School. This school specialises in dyslexia from which C suffers. It is hoped that on completion of her public examinations, C will undertake some further training. She would like to read English at university. But, if she is unable so to do, she will certainly do something suited to her talents. In any event, she is now also a young adult and will soon be fully independent. The girls are Mr and Mrs W's only grandchildren. They have made generous provision for each of them in terms of an insurance policy or policies currently worth in excess of £200,000 and due to provide some £400,000 upon the death of the last surviving grandparent. Those policies are written in trust for the benefit of the girls. I understand that the trustee(s) are the mother and members of her immediate family.
20. As I have already reported, the husband has also been generous to the girls. He put monies into insurance policies for their benefit. His contributions appear to have included some £21,000 which came from his family. The funds transmogrified over the years. The girls now benefit from insurance policies worth about £20,000 of which they are the primary objects (together with the husband's siblings and any other children he may have) plus bank accounts worth about £150,000 in the round, which contain the proceeds of policies which have clearly matured. Those funds were placed in building society accounts with the Leek Building Society in the husband's name but held for the benefit of each girl. There is no formal trust documentation relating to these accounts, but clearly given the children's age, the husband holds those accounts as bare trustee for them.
21. A great deal of argument was, as I have already outlined, taken up with these particular funds, for the wife sought to be made a trustee of the accounts/policies. The District Judge found in her favour because he considered that the husband had acted "capriciously" in relation to his dealings, in particular, in relation to C's school fees and a trip that she wanted to take to New Zealand. Ultimately he agreed to pay the fees and assisted with the costs of the trip, but he had caused initial difficulties which the District Judge obviously deprecated.
22. The order which the District Judge made effectively locked these parties into a situation whereby they were joint trustees and might well argue about the use of the trust funds. It seems to me that this was an inappropriate use of section 24 in the circumstances of this case. In fact I considered he was plainly wrong given the girls' ages and the amount of the funds involved. During the course of submissions, I gave certain indications to the parties' counsel about these funds. Having scrutinised a schedule produced by the husband, it seemed that he had undertaken expenditure on behalf of the children which totalled about £40,000, which could legitimately be deducted from the bank account monies. Fortunately, the parties have come to terms in relation to that part of this appeal. It has been agreed that the insurance policies shall remain extant and there is no need to change the terms of the various policies. So far as the building society monies are concerned (totalling in excess of £150,000) the parties are agreed, subject to the girls' final approval, that the monies which are due to the husband for his expenditure, namely some £40,000, shall be deducted from them and shall be divided equally between the parents. The remaining funds shall then be divided equally between the two girls. One of the bank accounts will be placed in the mother's name for the benefit of C, the other account will remain in the father's name for the benefit of L.
23. The Court should be slow to interfere with bank accounts in the way that this District Judge thought was appropriate in this case. The application made in the course of the trial failed to take account of the fact that both of these "children" were in fact adults and, therefore, were sui juris. Equally, it failed to take account of the rules set out in the Family Proceedings Rules as to the service of necessary parties in relation to such an application. These must be followed. Fortunately I do not need to comment further as this issue has now been resolved.
24. There was no decree nisi when the case came before the District Judge in November 2006. Apparently the husband's petition was filed in England in about 2003. The wife having issued a petition in Scotland prior to that date. The Scottish proceedings were dismissed for lack of jurisdiction with the result that the husband began proceedings in England. By that stage each of the parties was habitually resident in England and therefore it was clear that this was the appropriate jurisdiction. Despite this the wife made a tactical decision to stall the English proceedings because her advisers thought that it was inappropriate for there to be a decree nisi before the case had either been settled or adjudicated. Apparently this was in the belief that the decree nisi would inevitably lead to a decree absolute, which might prejudice the wife's rights as a widow under the various pension schemes which make up about 50 per cent of these parties' wealth. Accordingly, when the matter came before the District Judge in November, there was no decree nisi.
25. Counsel for the wife indicated that there was no way to stop the decree absolute once the decree nisi had been pronounced, but I do not accept that that is a good proposition of law. In such a case as this where the wife would risk a great loss were a decree to be made absolute, I would have expected the court to delay the pronouncement of the decree absolute or, if it was to be pronounced, to have ensured that she was compensated for such prospective loss.
26. The decree nisi was only granted when the matter came before the court in August 2006. Accordingly, there was no possibility of the decree being made absolute until a six week period had elapsed and the husband was entitled to apply. Had he failed so to do, the wife would have had to wait for a further three months, that being the prescribed period. Neither party sought to have the decree absolute expedited and so it was not granted until the 27^th March 2007. This has been a matter of importance because the lump sum order was made on the basis that it would be paid on the 9^th September 2006, and yet the whole order was posited on the basis, as it had to be, that it was subject to decree absolute.
27. Mr Cohen QC on behalf of the husband therefore submitted that no interest was due in relation to the lump sum order, whatever its amount, on the basis that it could not and was not due until the 27^th March 2007, that being the date of the decree absolute. He pointed to section 23(5) of the Matrimonial Causes Act 1973 which provides:

"Without prejudice to the power to give a direction under section 30 below for a settlement of an instrument by conveyancing counsel where an order is made under subsection (1)(a), (b) or (c) on or after the granting of a decree of divorce, neither order nor settlement made in pursuance of the order shall take effect unless the decree has been made absolute."

The argument being raised by Mr Cohen QC that the order could not take effect and was unenforceable until the decree absolute was pronounced.

28. In my experience, if parties agree a payment on a date earlier than decree absolute, it is dealt with in the body of the order by way of an undertaking. If they fail to agree then in practice, the court makes the order on the expected date of the decree absolute. In the event that the court considers that the payee should be compensated for the delay than the court makes an order for maintenance pending suit, to ensure that there is no loss of interest arising form the delay in the payment of the lump sum.
29. The assets in this case are not in dispute and were not in dispute before the learned District Judge. As at 25 November 2005 there was a document entitled "Schedule of Assets" on which he wrote a number of comments. I note that he deducted the £14,000 of outstanding legal costs which the wife owed her lawyers. The assets were £1,279,336 being liquid assets, and £912,065 being pension funds. The precise asset schedule is appended to this judgment as annexe 1. The schedule also sets out the parties' total net income. The husband's being some £32,000 and the wife's about £20,200. Those figures being taken from the parties' respective Form Es. In addition, the wife had free accommodation during term time (as a result of her work as school assistant at her daughter's school).
30. The husband retired in about 2000 and since then has undertaken some consultancy work. He was forced to retire because his then employers, Elf Petroleum, were taken over and he had to resubmit his CV in order to secure his employment. He did not succeed was unable to extend his term. He took early retirement and his pension from Total Oil is now in payment. He has estimated that undertaking consultancy work he is able to produce about £5,000 per annum by way of net income. Of course, he is only 58 years old and so he could work for another seven years. In my view, he has the option, if he so wishes, to work harder than he appears to be doing at the present time, even if the work which he undertakes is not in line with his particular expertise, so as to increase his potential earnings. I note that the wife is earning about £12,000 net per annum, I see no reason, given the husband's age and experience, why he could not, if he so wished, have earnings at about that level. His total pension is already in payment. In addition to the "ordinary" pension he receives some £2,960 per annum extra until he is 65 to compensate him for early retirement.
31. When the parties separated, the wife made her home in the parties' home in Aberdeen. The husband remained in Uttoxeter. As C was still at school in England the wife had no home close to her daughter when she was at school. She dealt with this practical problem in, if I may say so, a most sensible way, by taking up employment as a house mistress/classroom assistant at Abbott's Home School. This gave her a base with accommodation plus free board and lodging during term-time. It also gave a 66.6 per cent reduction in the school fees. The employment has paid her about £10,600 net per annum, more likely to be £12,000 per annum given a pay increase. She has also been in receipt of working tax credit. It is expected that she will reduce her workload once C leaves school. The wife expects to work three day a week basis. Even so, although she will lose her child benefit and child tax credit, her income will remain at the current level of about £12,000 net because she will receive working tax credit. I have not received detailed figures from counsel in relation to the expected future earnings, but all seem content for me to work upon this basis.
32. During the course of this marriage, it is clear that these parties made different but equal contributions. In the mid 1990s, the wife received £70,000 from her father and a further £12,000 by way of an inheritance from another relative. She used these monies to reduce the mortgage on the Aberdeen property. She also received the two additional family assets outlined above. The first being 50 per cent interest in her parents' home at Duthie Road (worth about £72,500). Of course, this property has been her parents' home for some 30 years, and the wife will not be able to obtain the "cash" value of it whilst they require to live in it. The home will continue to increase in value in line with property prices, but it will not produce an income until her parents move.
33. In addition, she received the monies which had been referred to by the parties as the Rothschild Bond, which provides her with an income in the region of about £5,000 per annum net.
34. The District Judge made findings in respect of those assets. He said:

"In that respect there is a strong argument for agreeing with the approach on the part of the wife …"

That is that the property at Duthie Road and the Bond should be regarded as non-matrimonial assets in the light of the fact that they were provided for by her parents. He said:


"[That was] particularly so since an inheritance by the wife from her parents of £70,000, and monies from an uncle of £12,000, all appears to have been put into Kingswell by way of a reduction in the mortgage, thereby increasing substantially the equity in that property and providing it with equivalent equity [for that of the English property]."

The District Judge seems to have been beguiled by the origin of those funds and made the following specific findings:

"Having reviewed the evidence I conclude that the husband did provide a great deal of financial expertise towards acquiring and then to retaining the family's assets and did so through hard work using his not inconsiderable intelligence and ability, but to classify that as a "stellar" contribution justifying an unequivocal division of the matrimonial assets, or to conclude that it "weighs more heavily" than that of the wife, is a step too far and a conclusion which is not justified on the facts of this case.

For the reasons given above, and taking into account Section 25 of the Matrimonial Causes Act 1973, I can see no justification for departing from a more or less equal division of the assets. Duthie Road should be left out of the equation, as should the wife's Rothschild Bond. There should be no change to the personnel of those who are Trustees for the children (ie the wife, and her parents). In respect of the children's assets I am satisfied that the wife can be trusted to use those funds for the benefit of the children, there is in any event a balancing check provided by the wife's parents, and there is no justification for the husband to be made a Trustee as the trust was not created by matrimonial assets."

The District Judge did not undertake any analysis on the figures to work out where this ruling left the parties.

35. This of course is an appeal and therefore I am guided by the principles set out in the well-known authority of Cordle v Cordle [2002] 1 FLR 207. Any appeal from a decision of a District Judge in ancillary relief should only be allowed by the judge if it has been demonstrated that there has been some procedural irregularity or that in conducting the necessary balancing exercise, the District Judge has taken into account matters which were irrelevant or ignored matters which were relevant or had otherwise arrived at a conclusion which was plainly wrong. I am fully cognisant of that ruling and take it fully into account in making the decision which I do today.
36. I have also been referred to a number of other authorities. I also am clear that this court is now subject to the guidance which the House of Lords had given in the recent authorities of White v White and Miller v McFarlane. From the case of White I draw the following conclusions set out so clearly in the judgment of Lord Nicholls where he said that the court should ensure a fair outcome in any given circumstances after the application of section 25 of the Matrimonial Causes Act. He said:

" Self-evidently, fairness requires the court to take into account all the circumstances of the case. Indeed, the statute so provides. It is also self-evident that the circumstances in which the statutory powers have to be exercised vary widely … But there is one principle of universal application which can be stated with confidence. In seeking to achieve a fair outcome, there is no place for discrimination between husband and wife and their respective roles. Typically, a husband and wife share the activities of earning money, running their home and caring for their children. Traditionally, the husband earned the money, and the wife looked after the home and the children. This traditional division of labour is no longer the order of the day. Frequently both parents work. Sometimes it is the wife who is the money-earner, and the husband runs the home and cares for the children during the day. But whatever the division of labour chosen by the husband and wife, or forced upon them by circumstances, fairness requires that this should not prejudice or advantage either party when considering paragraph (f), relating to the parties' contributions. This is implicit in the very language of paragraph (f): "the contributions which each… has made or is likely … to make to the welfare of the family, including any contribution by looking after the home or caring for the family." (Emphasis added.) If, in their different spheres, each contributed equally to the family, then in principle it matters not which of them earned the money and built up the assets. There should be no bias in favour of the money-earner and against the home-maker and the child-carer."

Of course, he also indicated that in most cases after the exercise has been carried out by going through the statute, the judge may have reached a conclusion that is for an equal division of the assets. He pointed out that in most cases this is not so and said:


"More often, having looked at all the circumstances, the judge's decision means that one party will receive a bigger share than the other. Before reaching a firm conclusion and making an order along these lines, a judge would always be well advised to check his tentative views against the yardstick of equality of division. As a general guide, equality should be departed from only if, and to the extent that, there is good reason for doing so. The need to consider and articulate reasons for departing from equality would help the parties and the court to focus on the need to ensure the absence of discrimination."

He also pointed out that the fact that property was inherited or given to the parties during the course of the marriage, was one of the circumstances of the case to be given the weight appropriate in the circumstances. Such property could be seen as a contribution made to the welfare of the family by one party, however, where a claimant's financial needs could not be met without recourse to the inherited or given property, the source would carry little weight.

37. The complaint made in this case that the District Judge was discriminatory because he failed to take into account the husband's contributions during the marriage and that he came to the marriage with significant savings and a fledged career. This included his work-related pension, which when the parties married in 1983 had acquired 26 per cent of its value in terms of time. The scheme itself was final salary based and so the 26 per cent had not accumulated in terms of value. However, it cannot be gainsaid that in terms of time a quarter of it had been accumulated prior to this marriage.
38. The second complaint is that the District Judge was discriminatory in regarding the wife's contribution by way of capital, namely (i) the £82,000 towards the reduction of the mortgage and (ii) the assets that emanated from her parents, as being greater than the husband's contribution. He was, therefore, discriminatory ring-fencing them. Thirdly, it is asserted that he was plainly wrong when he ignored the wife's inheritance prospects and took no account of them. He should, so it is submitted, have adjourned the case or given the husband a proportion of such inheritance as the wife received or, at the very least, have made an order that adjusted the current assets in the husband's favour to take account of this potential disparity. Thus, the husband should have received 60 per cent to the wife's 40 per cent.
39. Finally, it is asserted that the District Judge failed to analyse the parties' positions in terms of their needs with the result that the judgment which he imposed upon them left the husband with insufficient assets for his needs as it left the wife with about 60 per cent of the overall assets and the husband with a mere 40 per cent.
40. I accept that elements of the District Judge's judgment indicate that his analysis was plainly wrong. I do not accept that he was wrong in his findings or conclusions in relation to the wife's inheritance. He heard evidence over three days. He applied the law correctly, as is clear from the terms of his judgment. His conclusions were open to him and his discretion in that regard is, to my mind, unimpeachable.
41. It is clear on the evidence which he heard, that he could not put a figure on the current wealth of Mr and Mrs W, nor could he be confident that the wife would (or will) receive any inheritance from her parents given their age and needs. The fact is that they may use their funds during their lifetime. I accept he was entitled to make that finding.
42. Commonsense would suggest, given their position in 2001 and given that the wife's "inheritance" cannot now be under attack in terms of adjourned orders or a proportion being paid to the husband that she is likely to receive something from her parents. However the timing and amount are uncertain and unclear. Therefore, at its highest, this factor can only be used as a background factor which weighs lightly in the overall analysis of fairness in this case.
43. Accordingly, that aspect of the district judge's judgment will stand, and should stand given there is a clear line of authority in these courts that there is freedom of testamentary disposition. The older generation may require their assets and the courts cannot assume that monies will be forthcoming. Indeed, tax planning may dictate that the wife should not receive monies from her parents. So I am clear, on the principles enunciated in the case of Miller v McFarlane, the husband is not suffering a loss in respect of which he requires compensation. Moreover, such assets, if any, as are acquired by the wife from her parents, will be long after this marriage has ceased and he cannot, it seems to me, seek a share in such monies. Therefore, even on the basis of that part of the ruling in Miller v McFarlane, there is no entitlement in this case in relation to that inheritance.
44. This is quintessentially a needs case for, although the parties' assets are somewhat in excess of £2 million, given each of them are relatively young and each of them needs a home, all their monies will be required to fund their lifestyle in the long-term future.
45. I am clear that the District Judge did not direct himself to a clear analysis of the figures in order to calculate the effect of his order on each of these parties. By failing so to do, he was plainly wrong and so it is open to this court to reconsider the terms of the order. It has been suggested that his lacuna in the judgment was capable of correction and the husband's counsel should have pointed this out and taken him through precise figures after he had handed down his judgment in April. Whilst I accept that it is correct, per the authority of Thwaite v Thwaite, that the court can reconsider its orders whilst they are still executory, it is no answer for the District Judge's failure to analyse the figures that the husband's counsel should, as a matter of course, have asked him to clarify his reasons.
46. A District Judge has a duty to clarify his judgment without the parties asking him to make further specific findings. Indeed, it seems to me that this husband was entitled to challenge this defect on appeal. The fact that there is no analysis in the body of the District Judge's judgment, means that this court can form no view about his rationalisation of the figures.
47. This is not a big money case, particularly as half of the assets are held in pensions, the largest of which is already in payment. Given the background factor of the wife's possible inheritance and the parties' respective needs I do not consider it was right to ring-fence the wife's assets which had emanated from her parents. All of the assets which came into this marriage have to be available to cover the parties' requirements. To that extent I am clear that the District Judge was plainly wrong in his analysis.
48. Each of these parties made a full and proper contribution and there is nothing in the factual matrix which would permit of a finding that the wife made an additional contribution in circumstances where the husband had assets which he brought into the marriage and where he worked extremely hard during its existence.
49. The parties each require a home and I have no doubt that the properties set out in the assets schedule, which are each worth about £300,000 net are appropriate. They each have similar income needs in the long-term. In the case of Miller v McFarlane, their Lordships may have suggested that the court should not pay much attention to the argument that a spouse who is "fully fledged" before the marriage has made a contribution which is valuable and should be taken into account. I take particular note of what Lord Nicholls stated. This pronouncement was appropriate in the context of the unusual factual matrix in Miller v McFarlane, but it flies in the face of the reality in cases such as this. That is not to say that this type of contribution offers a definitive solution to this or any other case, but it is one of the factors which illuminates the fairness of the division of the parties' assets based on need. This case is typical of many and I consider that it would be unfair and discriminatory to ignore each of the parties' contributions, whenever made, including that made by bringing monies in at the beginning of the relationship. As time goes by, all assets become amalgamated and it would seem to me to be inappropriate to omit them from overall consideration.
50. At the end of the day, the analysis of the figures outlined in the parties' submissions, convinces me that each of them requires a full 50 per cent of all of the assets, both free capital (if I can so call it) and the pension assets. Each of them will then have a home of equal value and each of them will have liquid capital and pension assets which will enable them to live the rest of their lives in relative comfort.
51. The wife is about 7½ years younger than the husband. As such she will live the longer and she can, if she so chooses, retain her pension fund intact until the age of 65. Of course, as a woman, she will receive a somewhat lesser return by way of an annuity when she comes to draw her pension because, actuarially, women live for about five or six years longer than men. As a very rough guide, the "At a Glance" tables indicate that annuity rates for women are about 5 per cent less than they are for men.
52. Doing the best I can to analyse the parties' income, I consider that until the husband reaches 65, his income on the basis of an equal division of the assets will be as follows. His earnings between £5,000 and £12,000 net per annum. His pension in payment nearly £13,000 per annum net. Income from free capital, which I have taken as being £335,000 to round it down, at 3.75 per cent net return (which is the Duxbury figure allowing for capital, growth) about £12,500. On this basis his income, if he earns £12,000 would be in the region of £37,500 per annum. However, if he chooses to remain earning a mere £5,000 per annum, obviously it will be £32,500 odd.
53. The wife will have her earnings of about £12,000 net and her income from her fund of about £10,000 per annum, making a total of about £22,000. In addition she will have the benefit of free accommodation as a result of her employment. I have taken a low figure for the investment income that she will receive because I am clear that some of her assets are not directly available to invest, particularly Duthie Road, which is her parents' home. Of course, that asset will probably increase in terms of capital value in line with inflation.
54. At first blush, it might be thought that therefore she is in a much less favourable position so far as income is concerned, but this is only because the figures assume that she will not draw her pension. If she did her income would be greater. She is over 50 years of age and therefore, if she wished, she could draw her pension fund down. I expect that she will choose not so to do. The concomitant is that in the longer term, she will have additional funds available, not only because her pension will grow. There is also the prospect that in due time she may receive some funds from her parents.
55. When the husband reaches 65, his income will reduce. He will receive a State pension in the region of £1,800 per annum net. This is reduced because he has not continued to make contributions to his National Insurance stamps since his retirement in 2000. He will lose the additional pension of £2,960 per annum which is paid until 65. He will lose his earnings, so overall he will lose at least £10,000 worth of his income in the long-term. That means that he will have to Duxbury-ise his free capital to assist with expenditure. Of course, he has the option to work harder and use the additional income that he has from now until 65 to set aside some savings. If he does he will be in a very similar position to the wife in terms of his net spendable income in the long term. If he is not, it will be a matter of his choosing.
56. The unfairness of the decision reached by the District Judge is caused by his skewing the order in favour of the wife which meant this husband lost about £100,000 of capital, roughly 10 per cent of his worldly wealth. I consider this capital will make a significant difference to him in the long term. This was a long marriage of 20 years. Each of the parties were fully contributing and there is no reason to depart from equality in this case. Accordingly there will be a 50/50 split of all the assets.
57. Mr Cohen QC on behalf of the husband argued that his client deserved an additional 10 per cent so far as the pension was concerned, making a 20 per cent differential of course, because of his contribution prior to the marriage and because of the wife's prospective inheritance, but I do not agree with his analysis. It seems to me that the expectation after a marriage of this length is that these parties should divide all of their assets on an equal basis.
58. Accordingly, the pensions will be split equally. I will leave it to counsel to work out the precise amount of the lump sum which is due, for I am sure that they can agree it. There was what they have described as a "conundrum" for they were £5,000 adrift, but I have managed to work out where the error lay. There was a suggestion prior to my rising to consider my judgment as to whether the wife might be prepared to receive less of the pension and more "free" capital. I will listen to submissions from each of the parties' counsel if this still remains an issue.
59. Finally, I wish to deal with the point raised in relation to the section 23(5). It has been agreed that the wife is entitled to receive such monies as are required under the terms of this order, effectively as at the 9^th September 2006, for this was what the district judge had in mind. I remind myself that this case has, in reality, been delayed from November 2005. As interest is not the appropriate way in which to cater for the delay resulting from the failure to obtain a timeous decree absolute. Thus I will order that periodical payments will be paid in a sum which amounts to about 4.5 per cent net on the outstanding balance of the lump sum. This is a fair recompense for the wife being kept out of her funds since the 9^th September 2006, when she should have been able to invest them for a proper return.
- - - - - -