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Cite as: [2017] 4 WLR 35, [2017] WLR(D) 24, [2017] 1 FCR 467, [2018] 1 FLR 965, [2016] EWHC 3285 (Fam)

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This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

		Neutral Citation Number: [2016] EWHC 3285 (Fam)
		Case No: ZC15D02654

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

19/12/2016

B e f o r e :

MRS JUSTICE ROBERTS
____________________

Between:

	AB	Petitioner
	- and -
	FC	Respondent

____________________

Jonathan Southgate QC (instructed by Family Law in Partnership Ltd) for the Petitioner
Stewart Leech QC (instructed by Withers LLP) for the Respondent
Hearing dates: 23rd and 24th November 2016
____________________

HTML VERSION OF JUDGMENT
____________________

Mrs Justice Roberts :

A. Introduction

This is an application by a wife for financial remedy orders after a short marriage which lasted some 19 months to the date of the parties' separation. Both parties are still young but together they have a child, A, who was born in January 2015 and is now 22 months old. For the majority of his life thus far, he has been cared for by his mother, the parties having separated when he was only 4 months old. There is little liquid capital in the case but the husband has a substantial (but potentially time-limited) earning capacity. Both parties accept that there is no marital acquest to be shared. The issue, therefore, is the basis upon which the wife's future needs for housing and income should be met. Should she be entitled to live in owner-occupied accommodation purchased through means of a repayment mortgage or is this a case where her future needs with A will be met through the provision of rented accommodation ? In either event, at what level should the husband be required to support that household given that the (admittedly) high standard of living which they enjoyed during the marriage was limited to the relatively short lifespan of their shared living arrangements ?

Notwithstanding the fact that decree nisi was pronounced in January this year (2016), I propose to refer to the parties in this judgment as "the husband" (H) and "the wife" (W).

W has been represented at the final hearing by Mr Jonathan Southgate QC. Mr Stewart Leech QC has appeared for H. I am indebted to both counsel for the (characteristic) care and industry which has gone into the presentations of their respective clients' cases.

The facts can be simply stated.

W is 31 years old; H will celebrate his 28^th birthday next month. He is a professional footballer. Having formerly played for a team in the English Premier League, he is now working abroad. His current contract (which provides him with an income of c.£1 million per annum net, depending on the prevailing fx rates) expires in June 2019. Thereafter, the future remains uncertain. I have been shown copies of press reports which speculate upon his prospects of even greater sporting glories. Perhaps prompted by such speculation, his current club has indicated a willingness to open negotiations about renewing his contract. H has not yet engaged in those discussions, preferring to concentrate on completing the current season. Whether or not that is some indication of his own expectations in relation to the possibility of a transfer remains to be seen. In any event, W accepts that, whilst the future is uncertain, it is likely that the present scale of his income is finite. She accepts that in four or five years' time – barring injury in the meantime - when his playing career comes to an end, it is unlikely that he will be earning a six or seven figure income.

She herself has no income and a very limited earning capacity at the present time. She was working as a beautician when she and H began a relationship in 2011. She has not worked since 2010 and her time is now devoted to looking after A. They married in October 2013 in France (both are French nationals, although W was brought up in north London from the age of about six) and their only child was born in January 2015. They have never owned a home together. The former matrimonial home was a rented property in the north of England for which they were paying just under £52,000 per annum. That property extended to some 4,000 square feet with five reception rooms, four bathrooms, a gym and a large garden with an extended decked area and hot tub.

Whilst it is not necessary to go into any great detail, I am satisfied that the standard of living which they enjoyed over the course of their marriage was high. That much is borne out by the fact that, notwithstanding the costs of this litigation (to which I shall return later), there is virtually no capital in the case despite the level at which H was earning. Both parties accept that they lived life to the full with virtually no constraints on their ability to indulge themselves in terms of discretionary spending on clothes, holidays and (if I may be forgiven for describing it as such) the paraphernalia which so often features in these lifestyle choices.

Much criticism is made by H's team of W's aspirations to perpetuate that lifestyle following the demise of her relationship with H. They accuse her of overspending on all fronts from her current rented home to the sums she spends on holidays and clothes for herself and A. W's team, in their turn, point to the fact that H's own spending has continued unchecked since the separation some eighteen months ago. They point to a six figure sum which he spent on a holiday to Los Angeles with friends in the aftermath of the separation. He accepts this criticism to an extent; he told me that he felt frustrated by the breakdown of the marriage and the litigation which ensued. He accepts that he overspent on the trip.

Within the material in the bundle are several pages of texts and emails which were exchanged between the parties in the weeks and months following their separation. I need say no more about these for the purposes of this judgment. They do not shed a particularly favourable light on either of these parties but they do, perhaps, provide a context for the heated (and hugely expensive) litigation which followed. (Neither of their current firms of solicitors was then acting, each of H and W having changed their representation since these proceedings were commenced.)

That said, I am satisfied that W has yet to come fully to terms with the breakdown of the marriage. There was some rapprochement between them in May this year when H travelled to London to spend time with A. Thereafter, they spent time together in Paris. W clearly wished for a reconciliation. Despite the fact that she became pregnant as a result of the time they spent together, it seems that the damage was done as far as the future of this marriage was concerned. That she miscarried at an early stage of her pregnancy in circumstances where H was less than supportive of that pregnancy continuing has no doubt created additional tensions between them. There was a further attempt at reconciliation in August this year when W took A to Europe to see his father. That, too, ended badly with W alleging that she was thrown out of H's rented home and had to spend a night in a local hotel before returning to London. It was very obvious to me when she gave her evidence that she has not yet disengaged emotionally from her relationship with H.

As to the proceedings, they began in May 2015 when W issued a petition seeking dissolution of the marriage, together with an application for financial remedy orders. By this stage, H had moved out of their rented home and shortly thereafter moved to Europe to take up his contract with his new club. Complaint is made by W about the fact that he gave notice to the landlord and terminated the lease of what had been their family home. In any event, it appears to have been agreed between their (then) solicitors that she and A should return to north London and rent alternative accommodation whilst the proceedings took their course. I have seen a letter from her former solicitors, Vardags, dated 28 July 2015. That letter records H's agreement to her move.

It includes the following paragraph:

"Our client is looking for [rented] properties in the North, North West and Central London areas. Accordingly, we enclose property particulars for three properties in the St John's Wood area in relation to which our client is arranging urgent viewings, as examples of the types of properties that she hopes will be suitable to meet her and [A's] interim housing needs.

These properties, that are up to a 55% reduction in square footage to their current home, are an average of c.£1,925 per month to rent, given London prices. As our client is going to have to make immediate enquiries to seek to view and secure a property on this basis, your client having prematurely served notice on her current home, please confirm that your client will agree to cover her rent at this level and the deposit required."

The parties were unable to agree upon an appropriate level of interim financial support for W and A. On 28 August 2015, she secured an order in the Central Family Court in respect of maintenance pending suit and provision for her legal costs. H was ordered to pay £30,000 per month apportioned as to £15,000 per month for her general maintenance (including rent) and the balance for her legal fees. In addition, H was required to fund £11,550 by way of a deposit on her new rented home. The temporary home which W rented in Finchley (in which she is still living) is a five bedroom property with four bathrooms. Notwithstanding the representations which her previous solicitors had made in relation to the likely cost of renting, she is paying £65,000 per annum (nearly £5,500 per month), or more than double the estimate which her solicitors had previously given. Thus W's disposable income under the interim order has been in the order of some £9,500 per month. Much complaint is made by Mr Leech on behalf of H about W's decision to rent at this level. He submits that this is yet one more example of her failure to appreciate the new financial realities of life and her clear wish to perpetuate the sort of lifestyle she was able to enjoy whilst the marriage subsisted.

In September 2015, Deputy District Judge Drew made directions at a First Appointment. Both parties were ordered to provide further financial disclosure and to set out their respective cases as to W's future housing needs and evidence of mortgage capacity. At that stage, W was seeking to raise issues in relation to H's spending in the context of a future 'add back' or reattribution claim. (Happily, that claim has not been pursued in the context of this hearing.)

A complaint by W that H had failed to comply with his obligations under the interim order resulted in the issue of enforcement proceedings. The position was resolved and, by consent, a Financial Dispute Resolution hearing was adjourned on the basis that the parties agreed to hold a private mediation session overseen by Sir Paul Coleridge.

Both parties provided replies to the other's questionnaire.

The private FDR on 29 January 2016 was unsuccessful. Hot on the heels of that meeting, H's solicitors made an open offer of settlement. It remains the basis of H's case for the purposes of this final hearing. By this stage, it appears that W had spent approximately £234,000 on legal costs in nine months of litigation. She did not respond to that offer and thereafter it appears that, from her side, there was no further engagement in settlement discussions for several months.

The matter was back before the court in mid-May this year (2016) when W renewed her application for interim provision for her legal costs. I dealt with that application at which Mr Leech represented H and Mr Nicholas Chapman represented W. Agreement was reached on the basis that a sum of approximately £30,000 (the proceeds of sale from H's Ferrari) would be paid to W's solicitors to cover funding for the months from March to April 2016. Thereafter, her costs were to be funded by H at the rate of £5,000 per month. There were ongoing issues about the state of H's financial disclosure in the proceedings. Other than to direct him to file a budget, I declined to order replies to a further questionnaire. Despite complaints from W's team that H had yet to provide full disclosure of his financial affairs, it seemed to me that there was no proper evidential foundation for a non-disclosure case against H. Happily, no such allegations have been pursued at this hearing.

B. The asset base

This can be taken shortly. There is an agreed schedule of assets in the bundle about which I need say little other than the following.

Capital

Both parties are currently living in temporary rented accommodation.

H owns three separate properties:-

(i) a modest property in France worth c.£500,000 with an equity, after costs of sale, of c.£86,000 (c.£30,000 on his case). It is currently an illiquid asset since it was purchased before the marriage as a home for his mother (who is divorced from his father);

(ii) a flat and two parking spaces in Gex, France in which there is no equity but a mortgage of c.£200,000. This, too, is a pre-marital asset which produces no more than a very modest rental income;

(iii) a condominium in Miami which is still under construction and which H bought 'off plan' prior to the marriage for US$963,900. Under the terms of the purchase agreement with the developer, he has paid more or less one half of the purchase price. The balance of some US$482,000 is due by the end of 2017 when construction will be complete. Should he default on this payment, he will forfeit the sum he has already paid. Thus, on the assumption that the purchase price is equivalent to value on completion in 2017 (and that may or may not be a sound assumption), there is equity of some £374,000 in the Miami condominium albeit that such value is extinguished by the corresponding obligation to fund the second instalment in 2017.

The only 'solid' equity in the case is a sum of just over £95,000 (now cash) held by H's solicitors following the sale of an investment property in Hale, Manchester ('the Hale proceeds'). A modest life assurance policy on H's life is assigned as collateral in respect of the mortgage on his mother's house in France.

Other than that, H has virtually nothing in terms of cash reserves or savings save for £85,470 (€100,000) which is due in respect of an outstanding contractual bonus payment.

W's cash resources are virtually nil, being whatever may be the balance in her current account from time to time in respect of the interim maintenance which H is paying. She is not making any savings out of those payments and her cash flow appears to be entirely absorbed by her spending at the end of every month.

Each of the parties has substantial liabilities, not least in respect of outstanding legal costs. H owes Withers LLP nearly £60,000. He has a bank loan of some €76,000, loans of some £80,000 which he owes to his father (his father acts as his agent), and various unpaid credit card debts. In all, he is carrying outstanding liabilities of just over £215,000.

W owes her current solicitors £30,000 in respect of outstanding legal costs and Vardags, their predecessors, have an equitable charge in respect of some £144,000 which remains outstanding. Absent a further renegotiation of terms with that firm, that charge stands as a first call on any sums she receives from H at the conclusion of this hearing.

Apart from some very modest funds in a Professional Footballers' pension scheme, that is the totality of the assets in this case: realisable assets of less than £500,000. Since it has been assumed that the balance of the contractual payments due on the Miami condominium will have to be met out of income, the figure has not been included as a liability in the asset schedule. If it were, as it probably should be, it would virtually wipe out the asset base in its entirety.

What, then, as to income ?

Income

In 2012/13 H's P60 in respect of his last contract with an English club shows gross earnings of £2.074 million (just under £920,000 net). Since moving to play for his European club, his contractual salary is €70,000 net per calendar month (c.£53,000 net or £636,000 net per annum). He is entitled to a bonus of €70,000 net in June and December in each year of his four year contract with a further signing-on fee of €220,000 per season. This gives him a total net income of €1.2 million per annum. Pursuant to the terms of his contract, he has assigned all personal image rights to his club and receives no additional income from this source.

On the basis of current fx rates, this is equivalent to approximately £1million per annum. Mr Leech urges caution in forecasting a consistent income at this level going forward because of the current volatility in exchange rates and the weakness of the pound in the post-Brexit period. Before the referendum on the United Kingdom's continuing membership of the European Union, his annual net salary was nearer £900,000 than £1 million. On H's behalf, Mr Leech makes the valid point that in future he will be earning in euros but paying in sterling and fairness requires an objective overview of future currency fluctuations.

That is the position in relation to H's guaranteed cash flow.

In addition, his contract provides for further bonuses depending upon his own and his team's performances and the results which they achieve.

I am told that H's cash flow situation has been stretched since the interim maintenance order whereby W has been receiving £30,000 per month paid as to £15,000 in respect of general maintenance and £15,000 by way of a contribution to her ongoing legal costs. H has recently borrowed €100,000 from his bank and a further €88,000 from his father, all of which was used to meet the contractual payment due in respect of the Miami property.

As I have said, H is renting his present accommodation in Europe and has no effective mortgage capacity for the purposes of rehousing W and A in this jurisdiction. He is offshore and has no assets of which to speak in this jurisdiction. In circumstances where she aspires to buy a home with a mortgage which she will repay out of the periodical payments she receives from H, W will have to identify a potential lender who is prepared to advance funds on that basis. From the foot of enquiries which she made at the beginning of this year, it appeared that she might be able to borrow £810,000 on the basis of maintenance from H of £15,000 per month (£180,000 per annum). Within the bundle, I have a much more recent letter from a firm of financial advisers dated 16 November 2016 which suggests that, with maintenance receipts of £26,500 per month (£318,000 per annum), she could secure a mortgage advance of £1.1 million provided that she was in a position to put down a cash deposit of 35% loan to value. This evidence has only emerged in the course of the last few days. The new presentation from the financial adviser who was approached on her behalf appears to have been calculated on the basis of a repayment mortgage which would be paid down over 8 to 10 years. If the shorter period were chosen, her monthly repayments would be £14,183 per month (or £170,196 per annum). If the mortgage period was extended to 10 years, the monthly repayments would be £11,933 (or £143,196 per annum).

By a follow up letter dated 18 November 2016, the financial adviser has set out the assumptions on which these figures were based, including the following:-

the maintenance award required to support that level of mortgage borrowing is £26,500 per month (or £318,000 per annum); and

W has no other liabilities; and

W will have a sufficient deposit so as to ensure a maximum LTV ratio of 65%.

Although a potential "niche" lender is identified by the financial adviser, there is nothing more concrete in terms of a sound evidential basis for this level of borrowing capacity and, in any event, it presupposes that W has cleared all existing liabilities (including, presumably, her very substantial liability in respect of legal costs) and will thereafter retain sufficient capital to put down a 35% cash deposit. It is clear from the first letter from the financial adviser that the approach to the mortgage adviser was anchored to a target purchase price of £1.7 million. The letter records the following:-

"This would fit with your requirement of £1.1M against a price of £1.7m. Due to the complexity of the case the perceived risk is higher to the lender and the rate offered higher than in the high street market….. I have been given a potential variable rate of 3.25% initially with a reversionary rate of 5.49%."

C. What the parties seek in this litigation

The wife's position

W's open proposal is dated 10 November 2016. That is the first occasion on which she has openly stated her target objectives in this litigation.

The offer envisages the following:-

(i) the balance of the net proceeds of sale from the Hale property of just over £95,000 will be paid to W;

(ii) H will pay the balance due on completion of the Miami condominium (US$482,000) on completion of the project in 2018 and there will be an immediate onward sale to a third party purchaser with 80% of the net proceeds being paid to W. If a sale does not achieve a sufficient price such that W receives at least £650,000, H will be required to make up any shortfall. In other words, she will receive the greater of £650,000 or 80% of the net proceeds;

(iii) subject thereto, each will retain such assets as they have and each will be responsible for their own liabilities, including costs;

(iv) H will pay periodical payments to W in the sum of £23,500 per month (£282,000 per annum) until the first to occur of:

(a) death;

(b) W's remarriage;

(c) A reaching the age of 18 years or completing tertiary education, whichever is later; or

(d) further order of the court.

However, there is to be no s28(1A) bar and W is to be entitled to extend the term provided an application is made before the term expires.

(v) H is to pay £36,000 per annum by way of child support including all his private educational costs from nursery fees to the costs of full-time tertiary education;

(vi) No order as to costs on the basis of the usual clean break provisions.

Thus, W seeks £318,000 per annum in terms of global maintenance for herself and A. When that offer is read in conjunction with the letters from the financial adviser, it becomes clear that she has structured her offer on the basis of a purchase of a £1.7 million property secured through a £1.1 million mortgage advance.

This latest offer has to be seen in the context of the way in which she has developed her case in relation to her future income needs. She has produced no fewer than three separate detailed budgets over the course of this litigation. Her original Form E budget appears to set out a requirement for an annual sum of £565,158. That figure was predicated on the basis of the provision of a property in central/North London. It takes no account of mortgage or rental payments. However, its structure is not easy to follow and a composite breakdown of the figures produced on the final page suggests that her total household and personal outgoings come to just under £305,000 per annum with expenses specifically referable to A being just under £108,500 per annum. This suggests a slightly reduced total of £413,190 per annum in round figures. Mr Leech's table (which includes an itemised breakdown of the figures) comes out at £417,400 per annum.

W's interim maintenance pending suit budget (produced in September 2015) was slightly less at c.£338,600 per annum.

On 15 November 2016, shortly before this hearing, her solicitors produced a third (revised) budget excluding mortgage/rent and school fees showing a total net annual spend of just under £252,000 per annum for herself (c. £21,000 pcm) and just over £56,500 per annum for A (£4,712 pcm). Thus we arrive at a figure of just over £308,500 per annum. Together with the sums she now claims in respect of mortgage finance (£170,196 per annum), her latest analysis of future income needs would suggest a requirement of £478,696 per annum.

Those figures have to be seen in the context of her current open proposal by which she seeks a global maintenance award of £318,000 per annum on an indexed basis.

The first observation which I have in relation to the presentation of W's income needs is that each of the budgets she has put forward lacks coherence in terms of the sums advanced. I do not doubt that a significant amount of work was undertaken on W's behalf in compiling these budgets but she herself was able to give me virtually no assistance whatsoever about the basis or assumptions which she had used in compiling her figures. I make due allowance for the fact that, as she herself accepts, W lacks the financial sophistication to penetrate the figures forensically. I do not intend to imply any criticism of her by that observation. She has experienced the lifestyle to which she now seeks to aspire for a limited period of time as H's partner and wife. She has never been in control of her finances during the course of the marriage. Together, she and H were able to spend at a prodigious rate and it is hardly surprising that she has found it difficult to provide her solicitors with a solid evidential platform to support the figures for which she is now contending. What I do know is that there is little now to show for the significant income which H has earned over the course of the last twenty-two months.

Mr Southgate has put together a table showing a total spend of just under £2.6 million, an annual "burn" rate of some £1.4 million. Even allowing for the sum of almost £696,000 which has been spent on the costs of this litigation, he points to about £1.9 million which has been consumed on living costs both before and after the separation in the last 22 months. It is accepted that a not insignificant element of that expenditure has been diverted towards the support of H's wider family whom he was maintaining before he met W. Mr Leech has been able to demonstrate that, in addition, W has been the beneficiary of some £453,200 in terms of what she has received in respect of her rent, maintenance pending suit payments and costs paid to her lawyers.

In her Form E, W says this about their standard of living during the marriage:-

"[H] and I enjoyed an exceptionally high standard of living during our marriage and throughout our entire relationship. This included regular luxury international holidays which often cost in excess of £30,000 just for the two of us, before [A] was born. I would also take regular trips to Paris, sometimes as many as three times a month … just for an extended weekend to see family and to go shopping, which [H] would always pay for.

[He] would regularly surprise and treat me with expensive gifts, including £5,000-£10,000 handbags and jewellery in excess of £10,000. In addition I have been able to spend freely on designer clothes and accessories. I have a large collection of shoes and handbags from Christian Louboutin to Chanel, some of which I haven't worn more than once.

We would always dine at the finest restaurants and stay in the best hotels. Whenever in London we would stay at my favourite hotel, the Bulgari Hotel in Knightsbridge (with basic rooms costing from approximately £560 per night), and I would often indulge in numerous beauty treatments in their luxury spa, which would cost several hundred pounds."

In terms of where she pitched her needs in respect of housing, her Form E (July 2015) provides no details as to cost although she envisaged the purchase of a "3 bedroom house in North/Central London with a garden, near [A's] future nursery and schools with a similar square footage to our current home". She was also seeking £90,000 to buy a car once she passed her driving test. I know not what type of vehicle she was intending to purchase but that figure is perhaps illustrative of her wish to ensure that her marital standard of living was maintained insofar as possible. I am entirely satisfied that she would have been able to purchase a safe and reliable car for significantly less.

The husband's position

H's open proposals were made on 3 February 2016 shortly after the private FDR hearing conducted by Sir Paul Coleridge. The figures and structure of his offer have not changed in the months which followed. They are repeated in a letter dated 15 November 2016.

His proposals are predicated on the basis that there is no available capital to fund the purchase of owner-occupied accommodation for W and A. Instead, he proposes that they should continue to rent privately for the foreseeable future. Whilst he is willing to support W in her current rented accommodation for the next few months, with effect from May 2016 he envisages a reduction in the level of maintenance which he is currently paying from £15,000 per month to £12,000 per month, £2,000 of which will be earmarked for child support. Support for A should cease, on his case, when their son reaches the age of 18 or ceases secondary education. From the £120,000 per annum which he expects to pay in spousal support, W will be obliged to fund the rent for the home (or homes) which they will occupy during A's minority. Whilst H acknowledges that the spousal element of the maintenance should be paid on a joint lives basis, he proposes that the level at which he pays will be reviewed on the earlier of 7 years (when he anticipates his playing career will have come to an end) or a (material) reduction of H's total net annual income.

In terms of capital provision, he offers W a lump sum of £150,000, the majority of which will come from the net proceeds of sale of the Hale property.

Other than that, each will be responsible for their own debts (and he envisages W will use her lump sum to discharge the debt due to her previous solicitors) and each will retain their own assets on a clean break basis.

The fundamental rationale for H's offer, framed as it is, is the singular absence of any marital acquest; the shortness of the marriage; and the fact that the parties never owned a home having rented throughout the 19 months of the marriage.

Much criticism is levelled at W by Mr Leech for the level of legal costs which have been expended on what he contends should have been a fairly simple case. He says, in paragraph 8 of his skeleton argument,

"[W] seems to believe that by marrying a top class footballer she has hit the jackpot. Her approach to this case has been categorised by a desire to spend, spend, spend – on herself and on waging a hugely expensive state trial, all at H's expense."

Of W's "stockpiling" argument, he says,

"This is emphatically not about her being put in a position to be able to save over the next few years à la Karen Parlour in order to fund a clean break. Rather, she insists that she should be entitled to a lavish lifestyle in the here and now."

It is true that all three of W's budgets to date have included significant claims in respect of personal expenditure, holidays and the like. The discretionary "spend" of £250,000 per annum which she is seeking in her most recent presentation makes no allowance for her housing which comes in, on her case, at a further £170,000 per annum.

D. The Law: discussion and analysis

Both parties accept that this is a needs case. Mr Leech invites me to consider the claims which W advances as analogous to a claim for financial provision under Schedule 1 of the Children Act 1989 save that the fact of the marriage now entitles W to periodical payments in her own right as opposed to a carer's allowance. What she cannot do through these financial remedy claims, he submits, is to build up a substantial pot of capital over time. On H's case, not only is that an unreasonable target in these proceedings; it is unrealistic given her current expenditure on lifestyle choices.

In this context, he reminds me of what Mostyn J said in relation to 'sharing' future income. In B v S (Financial Remedy: Marital Property Regime) [2012] EWHC 265 (Fam), [2012] 2 FLR 502, his lordship said this:

"[76] ……. A footballer who earns £100,000 per week earns that because he is on the pitch playing football. Certainly, the skills he was born with, and the development of those skills (which may well have happened during his marriage), are all reasons why he can command his salary, but he will not get paid it unless he plays football. The footballer has to fill the unforgiving minute with sixty seconds' worth of distance run after the marriage.

………..

[79] In my judgment simplicity and clarity are just as much needed in this part of the field as in the part designated 'division of capital'. Simple and fair guidance is needed so that the majority of cases can be settled. Settlement is almost always better than adjudication for a divorcing couple. And the functioning of the family justice system depends on a high rate of settlement of these cases. Save in the exceptional kind of case exemplified in Miller v Miller; McFarlane v McFarlane a periodical payments claim (whether determined originally or on variation) should in my opinion be adjudged (or settled), generally speaking, by reference to the principal of need alone. Of course needs are elastic in concept and there is much room for the exercise of discretion in their assessment. But to allow consideration of the concept of sharing to intrude in the assessment of a periodical payments award seems to me to be based on a doubtful principle, and is replete with problems of quantification by any sure standard. The sharing principle in relation to matrimonial property is simple enough: it is usually 50/50, because in the division of the marital acquest equity (or fairness) is (usually) equality. But if the concept of sharing is going to uplift above the assessment of need a periodical payments award which will be paid from post-separation earnings, how does a judge set about doing it ? Is it a third ? Or 40% ? Or 20% ? There are not even any signposts along the road to a fair award."

In the same vein, Mostyn J was subsequently to provide further guidance in the later case of SS v NS (Spousal Maintenance) [2014] EWHC 4183 (Fam), [2015] 2FLR 1124. In that case, his Lordship expressed a clear view that an award for maintenance should only be made by reference to needs save in a most exceptional case where the principles of sharing or compensation are headline pointers.

Here, Mr Leech submits that W's primary aim is to secure the highest award she can in terms of ongoing periodical payments so as to fund "an unrealistic and aspirational lifestyle". Even if he is wrong in that assumption, and were I to find that she genuinely wishes to apply part of her income award towards housing, he submits that her needs cannot legitimately extend in this case to buying an expensive property of c. £1.8 million which will be hers outright. He points to the fact that the substance of her current proposal means that, in addition to finding the £318,000 per annum which she seeks in respect of annual maintenance, H would be required to pay the final tranche of US$482,000 which is due on completion of the Miami property only to realise the equity in that property and pay the majority of the net proceeds (if not the entirety of those proceeds) to W in circumstances where she has made no contribution whatsoever to the acquisition of that property. There is no recognition whatsoever in what she seeks, on H's case, for the means by which H is to discharge his own indebtedness of some £215,400 when there will be such substantial calls on his future income. Such an outcome, he submits, would be both unfair, unprincipled and unsustainable.

By way of a fall-back position, Mr Leech has produced some property particulars which demonstrate that, were I minded to accede to W's request for the security of a property which she could - in due course - call her own, I should pitch her needs at significantly less than the seven figure sum for which she presently contends. H's proposed property particulars appear to demonstrate that she could purchase a three bedroom property in or around the north London / Finchley area (all relatively close to Enfield which is where her family lives) for between £650,000 and c.£700,000.

When she was cross-examined about the suitability of these properties, W was able to offer little more than an instinctive reaction in her attempt to explain why she would be likely to reject them. She is not to be blamed for that: the particulars were only provided under cover of a letter dated 22 November 2016, the day before the start of this hearing. She had no opportunity to inspect any of them.

In terms of her own aspirations for a home costing upwards of £1.7 million, Mr Leech submits that her proposals will not work as a matter of practical reality. He was able to demonstrate that she had quite simply not thought through the financial implications of her current offer. No provision had been made in her housing calculations for stamp duty of some £130,000. Once that cost was factored into the equation, what she would actually need to acquire her first choice of the properties she produced was a sum of c.£1.985 million. Even if a mortgage of £1.1m were to be made available, she would need a cash sum of £760,000 to pay the 35% deposit and stamp duty. Given the available resources in this case, that appeared to be unachievable in circumstances where she still had to find a further £175,000 odd to discharge her outstanding costs to her lawyers.

Having listened carefully to W whilst she was giving her evidence, I have to say that Mr Leech's submissions are well made. It seems to me that her paper aspirations and her fundamental understanding of what her proposal involved were poles apart. Given the levels at which she has been spending since the separation, she is going to need to completely recalibrate her expenditure if she is to manage her finances in future. A mortgage of £1 million or £1.1 million is a tall order for any wife who has no experience at all of managing her domestic economy in a home where she will be responsible for all the running costs out of a finite monthly sum. She told me that, over and above her rent and utility bills, she has spent most of her income on clothes and toys for A. (As she put it, "Clothes, toys, and then more clothes and toys".) When she was asked by Mr Southgate to give the court an example of a recent purchase, she told me about an outing to a well-known London department store where she paid nearly £600 for a coat and hat for A. (I remind myself that A is not yet 2 years old.) I heard about her concerns that A will not have enough space in the properties put forward by H to play with the three motorised toy cars which he owns.

She acknowledges that it will not be possible for her to enter the property market until 2018 and maybe much later if the Miami apartment takes time to sell. She told me that, between now and then, she would save the element of her maintenance award which is earmarked for mortgage repayment. Even if she manages to make the necessary economies through stockpiling part of her maintenance during the intervening period, it is difficult to see how she will be in a position to have cleared all her debts (including costs) and support the budget she has put forward in respect of her ongoing income needs.

She acknowledged during cross-examination that H's income will not continue at its present level in future years. She sees the end of the "good years" by the time H is 33 or 35 years old (i.e. in five to seven years' time). At that point, she agreed with Mr Leech that the very substantial income which he was now earning was likely to end regardless of which club he was playing for at the end of his career. In response to a question about how he was going to fund ongoing payments at the rate of £318,000 per annum for the next 16 years until A was 18, she said,

"I accept that figure will have to come down dramatically when he stops playing."

Thus, on this basis, it appears to be common ground that for at least five of the eight years during which she will be discharging the mortgage (on her case), H's income may well be between £500,000 to £800,000 per annum rather than the guaranteed £900,000 to £1 million net which he is currently earning.

The other side of that coin, as Mr Southgate points out, is that H may well elect to take up a significantly better and more lucrative contract should that opportunity present itself in future. The extent to which his income might increase over the period of financial obligation which he is assuming towards W and A is altogether unknown at the present time. Should he join the ranks of the super-élite, he will finish his playing career as a very wealthy individual. Mr Southgate submits, with some force, that such success should not come at the expense of an impoverished and insecure future for the mother of his child who has many more years of contributing ahead for the purposes of s 25(2)(f) of the 1973 Act.

It seems to me that this case is presently bedevilled with a significant number of "unknowns", each of which has the potential to influence the outcome for this family in years to come. In the current climate of economic uncertainty with all the speculation and volatility which persists in this post-Brexit era, a number of pertinent questions need to be addressed. Where will the property market be heading in 18 months' or two years' time when W plans to buy ? Will the estate agents' particulars which have been relied on as evidence in this case then represent the realistic cost of acquiring an appropriate home for W and A ? If not, will the market have fallen off significantly or will she need more to purchase an equivalent property ? What will happen to interest rates over the intervening period ? Are the mortgage projections which I have been given reliable indicators of what it will cost in late 2018 and beyond to service and repay the debt which W anticipates taking on for the purposes of acquiring her future home ? Is it possible that interest rates will have risen to a point where she has to significantly trim her expectations in relation to the level of debt which she can service out of her maintenance payments ? Given that H will be meeting her award out of an income which is paid in euros, does the possibility of further significant currency fluctuations preclude the court from reaching an outcome in these proceedings which will remain fair to both parties over the course of the next seven years at which point the review is contemplated ? How will recent political developments on the other side of the Atlantic affect the US economy over the course of the next two or three years, and what impact might any changes have on property values in Miami ? Is it fair that W should be able to continue to stockpile getting on for £200,000 per annum which would otherwise be deployed in paying down a mortgage if, for example, H was unable to find a purchaser for the Miami property for any significant period of time after its completion in 2018 ? How do I factor in the "unknown" in respect of the possibility of a new contract which could (potentially) lift his income into football's financial stratosphere ? Any such increase could make what now looks like a fairly tight position of liquidity and cash flow seem eminently realistic, proportionate and fair. How will W proceed with her proposed purchase if H sustains an injury between now and the latter part of 2018 or if, for some other reason, there is an interruption in his playing career ?

Given that there is agreement that W will continue to rent in the meantime, one option open to the court would be to provide for the intervening period now and adjourn consideration of W's and A's future housing needs to a date in late 2018 when many of these uncertainties will have been resolved. No one wishes me to take that course given the level of expenditure to date on legal costs. Both parties invite me to proceed now with a final adjudication of W's claims and that is what I propose to do.

In terms of legal principles, my starting point is section 25 of the Matrimonial Causes Act 1973. My first consideration is the welfare of A throughout his minority. His need for stability through his childhood and beyond will be provided largely through the care which he receives from his mother. Whilst I accept that H has much to offer his son (and I accept as entirely genuine his wish to play a full part in his upbringing), the reality of life for this family is that the lion's share of that burden will fall on W's shoulders, as it has to date. A's parents will not be living in the same country. His father's timetable will be dictated almost entirely by the demands of his career as a professional footballer over the next four or five years and perhaps beyond. W needs to be in a position to provide a stable and secure home for herself and A and to have the resources to run that home to an appropriate standard which bears some correlation to the resources available to the parties both now and in the future. S 25(2)(a) requires me to look to the resources which are likely to be available in the foreseeable future including, in the case of an earning capacity, any increase in that capacity which it would be reasonable to expect one of the parties to acquire.

In this context, I am satisfied that W has virtually no earning capacity at the present time. Once A is in nursery school (and he is likely to be attending for most of the day with effect from 2018/19), she is very unlikely to earn much more than £15,000 gross per annum by pursuing her former career as a beautician. Even if she earns at that level, she is likely to have additional child care costs which will neutralise the financial benefit of part (if not all) of that income. That she will have to return to some form of paid employment is, in my judgment, a "given" in this case but she is never going to earn at a level which enables her to make a significant contribution to her own domestic economy for so long as she has responsibilities for a pre-school child.

H, on the other hand, will have free rein to continue to develop his career as a professional footballer. I have no doubt that his career trajectory is something which has been, and will continue to be, carefully managed and nurtured by those around him. There is already some evidence of the value which his present club attaches to retaining him as part of the team at the end of his current contract. H's evidence to me about this was entirely open and, in my assessment, honest. He does not wish to commit himself one way or the other until the end of the current season. By that stage (June 2017) he is likely to know if any of the press speculation about his future has an anchor in substance and reality. He is keeping his options open and he cannot be criticised for adopting that position. I cannot speculate about what the future holds for him. Instead, I intend to proceed on the basis that he is likely to maintain his current level of earnings until at least 2020 (i.e. for the next four years). Of course, were he to sustain a career-changing injury, as Mr Southgate acknowledges, "all bets are off". In that event, as he accepts, W and A would undoubtedly have to look again at the options including a return to the rented sector.

I am similarly enjoined to consider the standard of living which the parties were able to enjoy prior to the breakdown of the marriage: see s 25(2)(c). Clearly, the standard of living in this case was high. There is no doubt that these parties spent all (and more) of what H earnt. There is more or less no capital to divide and such assets as remain are neutralised entirely by liabilities (which include debts on both sides for significant unpaid legal costs). However, that standard of living has to be looked at in terms of the length of the marriage. Where, as here, the marriage was short-lived, the impact of consistently high marital expenditure over a relatively short period finds less resonance or reflection in the standard of living which a former (maintained) spouse is entitled to expect in future. In this context, it is worth bearing in mind what Moylan J said recently in BD v FD [2016] EWHC (Fam) 594. At paragraphs 113 and 114, his Lordship said this:-

"[113] Subject to first consideration being given to the welfare of minor children, the principal factors which impact on the court's assessment of needs are: (i) the length of the marriage; (ii) the length of the period, additional to (i), during which the applicant spouse will be making contributions to the welfare of the family; (iii) the standard of living during the marriage; (iv) the age of the applicant; and (v) the available resources as defined by section 25(2)(a).

[114] In my view, the starting point for the assessment of needs is the standard of living during the course of the marriage. This was the view expressed by the Law Commission in its 2014 report, Matrimonial Property, Needs and Agreements (Law Com No 343)(para 2.34/2.35) in respect of "very wealthy cases": "needs are still assessed primarily by reference to the marital standard of living". This does not mean that it is either a ceiling or a floor but …. it provides a benchmark or starting point against which to assess needs.

However, as Moylan J went on to acknowledge, the use of the standard of living as a benchmark emphatically does not mean that in every case needs are to be met at that level either at all or for more than a defined period (see paragraph 118).

This principle was embraced by Mostyn J in SS v NS (Spousal Maintenance) [2014] EWHC 4183 (Fam), [2015] 2 FLR 1124. At paragraph 35, his Lordship said this:

"It is a mistake to regard the marital standard of living as the lodestar. As time passes how the parties lived in the marriage becomes increasingly irrelevant. And too much emphasis on it imperils the prospects of eventual independence."

Fairness to both parties remains the overarching objective even in a case based upon future needs. As Baroness Hale said in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 1 FLR 1186, HL:

"[137] …[T]here has to be some sort of rationale for the redistribution of resources from one party to another…..

[138] The most common rationale is that the relationship has generated needs which it is right that the other party should meet…. This is a perfectly sound rationale where the needs are the consequence of the parties' relationship, as they usually are. The most common source of need is the presence of children …. Many parents have seriously compromised their ability to attain self-sufficiency as a result of past family responsibilities … A further source of need may be the way in which parties chose to run their life together … All couples throughout their lives together have to make choices about who will do what … sometimes freely made in the interests of them both. The needs generated by such choices are a perfectly sound rationale for adjusting the parties' respective resources in compensation."

This is not a compensation case per se but it is certainly a needs case. Together, the parties decided to marry. Together, they decided to bring a child into this world. That decision has created new responsibilities and a new path in life for this wife and mother. It is a path which would not have changed, and which will not change, over the next sixteen or seventeen years regardless of whether the marriage was short or long.

I accept Mr Southgate's primary submission that the presence of A is an overarching consideration in this case. His needs inform those of his mother to a significant extent but, in this context, it is important to focus on the substance of those needs. He needs love, security, a comfortable home, and a standard of living which is commensurate with the fact that, for the next few years, his father is likely to be earning significant sums. However it seems to me that, in this particular case, there is an obligation on both of these parents to take advantage of the benefits which that high income will bring in order to make provision for the adjustments which will be necessary once that income reduces significantly, if not ends altogether. In my judgment, the fact that H and W were able to indulge themselves in terms of their discretionary spending over less than two years of their marriage carries less weight in this case than the obligations which both must accept to make provision for the future. W is still relatively young and, notwithstanding her current role as mother to a very young child, she will be expected to take what steps she can along the road to eventual financial independence. To his credit, H acknowledges and accepts that there should be no automatic cut off point or cessation of her entitlement to periodical payments at this stage although he does seek a review seven years down the line. It seems to me that W's wish to embark on that journey towards independence from the base of a secure home is a reasonable aspiration in the circumstances of this case provided that her housing needs are contained within the ambit of what is reasonable in all the circumstances of this particular case.

It has to be borne carefully in mind that there is an inter-relationship between the level at which future needs will be assessed and the period during which a court is likely to find those needs should be met by the paying former spouse. The longer the period, the more likely it is that the court will decline to assess those needs on the basis of a standard of living which replicates that enjoyed during the marriage. In my judgment those principles apply in this case equally to the assessment of W's housing and income needs. Whilst I understand that the rented property in the north of England which was the former matrimonial home was a very comfortable and spacious property with all the trappings of 'life lived in the fast lane', it was not a property in which either of these parties had any financial interest whatsoever. It was their home for a very short period of time and thus its use as a benchmark for W's future housing needs is, in my judgment, of limited significance regardless of the type of property which H is renting on a short term basis close to his team's headquarters in Europe. I also have to bear in mind that her recent move south to the environs of central London, albeit with H's agreement, is an additional factor which has to be weighed in the balance when considering her needs. The acquisition of a stake or foothold in the London property market will inevitably come with a higher price tag for this family. Realistically, H has accepted that W's aspirations to remain within easy reach of her family and support network are achievable goals in this case.

During the course of his oral evidence, H accepted that, in principle, he had no objection to W purchasing a home provided that her housing fund was affordable. Mr Southgate criticises that concession as one which comes very late in the day. Nevertheless, as I listened to him I formed the view that H is genuinely conscious of the need to provide for a future where his current level of earnings is likely to be consigned to history. He told me candidly that he had not been careful with money when he was younger. He accepts that he "blew" a wholly unreasonable sum of money on an expensive holiday with friends when the marriage ended. He recognises the need to make provision for the future and, in doing so, he appeared to accept that it was not unreasonable for W to wish to do the same. They disagree on the entry level in respect of housing for W but, by the conclusion of the case, there was at least an acceptance in principle by H that her aspiration for security was reasonable.

In appropriate circumstances, the principle of allowing a former spouse to stockpile for the future is a well-recognised device for achieving fairness as between the parties: see, for example, Miller v Miller; McFarlane v McFarlane (cited above). In Field v Field [2015] EWHC 1670 (Fam), Holman J was dealing with a case where the husband's income was expected to diminish significantly (if not cease altogether) during the financial dependency of the children of the family. He was an American lawyer who was approaching his 60^th birthday with retirement on the horizon. The wife was significantly younger. Their relationship endured for the best part of nine and a half years. When they separated, their son was 3 years old and their daughter ten months old. The assets available at the time of the final hearing were about £6.237 million after provision was made for all the legal costs incurred by the parties. The husband's gross income was c.US$2.1 million per annum (then the equivalent of c. £1.377 million per annum). Whilst the facts of the case with which Holman J was dealing are clearly capable of stark distinction with the facts of this case, Mr Southgate nevertheless relies on the decision as an example of judicial approval of "stockpiling".

At paragraphs 56 to 58 of his judgment, Holman J said this:

"56. Mr Marks lays stress upon the respective ages of the parties and the likelihood that the wife will survive the husband by many years. In any event, even if the husband is blessed with a long life, his earning capacity must ultimately diminish and the level of maintenance reduce, probably during the dependence still of one or both of the children. Mr Marks submits that, as well as meeting her annual needs, payments must also be made to the wife to enable her (in his words) to "stockpile". He submits that, just as the husband has included £100,000 per annum in his budget under a heading "Pension", she needs to be able to make some similar provision of pension or stockpile for herself. In principle I accept and agree with that argument on the facts and in the circumstances of this particular case, having regard in particular to the respective ages of the husband, the wife and the children in relation to each other. If, however, there is an element of stockpile, it must of course be saved and in some way ring-fenced, so that it is indeed available for future needs and can be identified and taken into account if or when the husband's income drops and he seeks to reduce the level of periodical payments or discharge them altogether. [my emphasis]

57. In parallel with the stockpiling submission, Mr Marks submits that whatever I can make available to the wife from the currently available assets will not, he submits, be sufficient to enable her to purchase a suitable home. So he submits that she will have a need to raise a mortgage which must, of course, be funded. The evidence of her actual capacity to raise a mortgage is very slender …..

58. I will not make any identified provision in the order for funding a mortgage. I will make identified provision for stockpiling. Investing the element of stockpile in a mortgage would, in my view, be an acceptable and indeed wise way of savings and ring-fencing it. Accordingly, the amount I identify and provide for stockpiling may, if the wife so wishes, be applied in funding a capital repayment mortgage over any sensible period of years. It must be clearly understood that the stockpile is intended to enable the wife to build up funds so as to be self-supporting upon the husband's death, or if he earlier retires and his income markedly reduces. If the wife does invest the stockpile in a more valuable home by financing a mortgage, then in due course she will have to trade down so as to release funds for income. The current high levels of maintenance which I will order are not going to be available lifelong for the wife, and she must clearly understand that now."

In that (very different) case, the judge assessed the housing needs of the wife and children to be £2.55 million inclusive of SDLT and moving in costs. (The wife was buying in an expensive part of central London.) The "stockpile" element of her periodical payments was set at £100,000 per annum on the basis that over a ten year period she would have accumulated an additional fund of £1 million. The wife's periodical payments were fixed at £220,000 per annum in addition to the annual stockpiled element of £100,000 per annum. Quoting from Mostyn J's judgment in B v S (above) and his analogy of the football player, Holman J declined to award the wife any additional element from the husband's performance payments on the basis that it was his hard work which generated those fees and, in any event, the performance payments were speculative and unpredictable.

In this case, by comparison, W seeks ongoing periodical payments of £318,000 per annum after a very short marriage in circumstances where there was no marital acquest whatsoever. Her offer envisages that she will also be the beneficiary of almost every last penny which can be stripped out of the capital which is currently available and the majority of that which will become available in the foreseeable future when the Miami apartment is sold. In my judgment, that approach fails to take sufficient account of either the length of the marriage or the proper basis for an assessment of her future needs.

As to housing, W's "target", or first choice, is a property known as "The Croft", NW7 which comes with a price tag of £1.795 million. Whilst she has viewed this particular property, she relies on it merely as evidence of the type of property which she wishes to purchase in due course since, at present, there are no available funds from which she can put down a deposit of 35% which appears to be the LTV requirement of the lender which has provided an "in principle" indication as to its willingness to provide a mortgage. This property is brand new and forms part of a development of eight homes built around a communal space. It is described as "bringing Mayfair to Mill Hill" and has three bedrooms, two en suite bathrooms with modern designer furnishings. I can see from the photographs supplied with the estate agents' particulars that it is probably similar in style to the feel and ambience of the home which this couple rented during their marriage. It is a "walk in, ready to go" property which has been built on a spacious open-plan basis and it appears to be in pristine condition.

Two similar properties produced by W costing £1.675 million and £1.85 million were nonetheless rejected by her as appropriate contenders. She told me that one was about 13 or 14 years old and needed work and the other was "a bit secluded" for her taste. Thus, whilst I had four different properties to consider from W, there was only one which she considered to be suitable. That property comes with a price tag of just under £2 million by the time stamp duty and costs are factored in.

Mr Leech prepared for me a cash flow analysis of the net effect of a purchase at that level. Based on her continuing to rent her current accommodation at a cost of £5,400 per month until 2018 when rent is converted into mortgage repayments of just over £186,000 per annum, from the £318,000 per annum which she seeks she would be left with c.£132,000 for the remainder of her outgoings. This assumes an equity injection from the Miami sale proceeds of £265,000 in 2018 on the basis that it will sell for what H will (by then) have paid for it.

For these purposes Mr Leech has adopted a base line figure in respect of H's guaranteed net income of £900,000 per annum. That is based upon an average currency exchange rate. Mr Southgate submits that I should not make any allowance for these purposes for currency fluctuations. Instead, he invites me to assume a guaranteed net income of £1 million per annum based on current fx rates. It seems to me that I am entitled to take proper account of the current volatility of the financial markets and the continuing uncertainties surrounding the full impact (whenever it is felt) of our exit from the European Community. Particularly in a case where W seeks to justify her case in relation to an entitlement to stockpile, it seems to me to be unduly unfair to H to adopt a fixed and unyielding figure in respect of his guaranteed future income stream when it is he who will suffer the impact of any future adverse currency swings. W wishes to be able to budget on the basis of a consistent income paid in sterling; her mortgage capacity is presently based on the assumption of regular periodical payments paid onshore in sterling. In all the circumstances, and for the purposes of considering the net effect on both these parties of W's current proposals, I propose to use Mr Leech's adjusted net figure of £900,000 per annum as a fair guide to H's future income.

On this basis, as the cash flow analysis demonstrates, if W discharges the balance of her legal costs during the first 12 months of the currency of the periodical payments order (when she will still be renting), she will probably stockpile a sum of just over £46,000. (This, in effect, is what she will save in the first year when she has no mortgage liability.) However, the total cost to H of meeting that order in the first year, including the final payment which he must make in relation to the Miami apartment, is in excess of £700,000, an equivalent of some 78% of his (assumed) guaranteed income. Thereafter, W's position remains the same throughout the next seven years as she continues to pay down her mortgage liability. Her yearly 'net spendable' after mortgage repayments remains more or less constant at c. £132,000 per annum. When an appropriate allowance is made for the costs of A's nursery / pre-prep fees, H will be paying to W some 37% of his income. After two years when (as W accepted as likely) his income reduces, the percentage which she receives will increase to in excess of 50% of his income. When allowance is made for the other charges on his disposable income (such as the liability he has assumed for his mother's mortgage and the fees he pays to his father who acts as his agent), he will retain only about 37% of his guaranteed income. In my judgment, this outcome is not fair to H and it leaves in W's hands more than she needs. The majority of her income would be applied towards a very significant repayment mortgage which she would have taken out to fund the purchase of a property which is, as I find, in excess of her and A's reasonable needs. In this context, and after a marriage of this length, I do not consider it is appropriate to factor in any sharing of, or entitlement to, H's bonuses. These are paid according to his own, and the team's, future performance. If bonuses are received in future, I accept they may go some way to mitigating the straitened cash flow position which I have outlined above. But, in my judgment, these are not payments which should be built into any cash flow analysis when considering the net effect (and thus the fairness) of the competing proposals which each of H and W are advancing.

During the course of W's oral evidence in relation to housing, it appeared at one point as though she was accepting that she did not need as much as £1.75 million to buy a house. She told me that she believed she would need at least £1 million to buy anything decent in central London. Later she mentioned a figure of £1.4 million. By the time we commenced the second day of her evidence, Mr Southgate had put before the court details of a new property in Lawrence Avenue, NW7. This was being advertised for sale with an asking price of just under £1.25 million. It is described in these terms:

"… A luxury detached four bedroom, two bathroom family house (over 2000 Sq Ft) that has been newly refurbished throughout, located in this most sought after road. The property which has just gone through a complete renovation comprises four double bedrooms, the master with an en suite bathroom, spacious family bathroom, a huge 38'x25' open plan living space open to a stunning fully fitted kitchen, a utility space, a large entrance hallway, a separate sitting room and a delightful rear garden with patio measuring circa 86' with a covered decking sitting area. To the front there is off-street parking for at least three cars."

The numerous photographs which appear with the particulars demonstrate the extremely high specification to which the property has been finished.

Whilst I can well see why W might aspire to live in a property such as this, it is, in my judgment, significantly in excess of what she reasonably needs in terms of the accommodation it offers. The property in which she will make a home with A will, for the majority of the time, be occupied by the two of them alone. There is no plan to accommodate a live in nanny. I was told that her brother visits and stays overnight from time to time but that is not a regular arrangement. After a marriage of this length and in circumstances where W is seeking financial provision for many years into the future during A's minority, she does not need four bedrooms or such a substantial property. Whilst, at this level, her mortgage spend reduces to just under £97,000 net per annum, she would (on her figure of £318,000 per annum) be stockpiling about £90,000 every year whilst, in circumstances where – as W herself accepted – his income was reducing, H retained less than 50% of his income (or some 37% odd after discharging his liabilities to other family members).

Of course, these figures and percentages can be no more than a guide at present to the likely net effect on the parties' respective financial circumstances. As I have already said earlier in this judgment, much is based on uncertainty and speculation about what the future holds. If H's playing career ends prematurely for whatever reason, W's objective of securing a foothold in the property market will have to be abandoned, as Mr Southgate readily accepts. I have to do the best I can on the evidence which is currently available to me and any future contingencies or material changes of circumstances will have to be addressed in a future variation application if the parties are unable to agree the way forward.

Looking at the five property particulars produced by H in the £600,000 to £700,000 range, the majority appear to be in the Finchley / Mill Hill area selected by W, although he has produced some which are just outside the M25 motorway. The properties have been plotted on a map which shows that W's current rented home is more or less equidistant between two of the properties. These are both in the NW7 area of Finchley where she told me she wanted to live. The first is a freehold three bedroom semi-detached modern property which is currently being offered at £635,000. It has a garden and is close to a selection of local amenities. It is situated in what is described as a mainly residential area of North London "with a real sense of community" and close to "the respected Mill Hill School". The property appears to be modern and well maintained, although I appreciate that W did not have an opportunity to view it. The ground floor living accommodation is well laid out and the property has a reasonably spacious modern kitchen.

The second property is also in Mill Hill, NW7. This is a four bedroom family home in a modern residential development. The property has two bathrooms including a family bathroom. It has an enclosed garden and off street parking. Again, the internal layout appears to be open plan and the property has a modern fitted kitchen. This property is being marketed for just under £700,000.

Of course, I cannot legislate for W's taste in properties and it will be important that any property she acquires as a home for herself and A is one in which she feels comfortable and secure. She was not able to give me any realistic or rational explanation as to why either of these two properties would not be suitable. She described one as looking like a "box" and asked, rhetorically, where A would find the space to run around with his three cars. Of the other she told me that she did not see how she would be able to fit all his toys into the property. These did not seem to me to be solid or appropriate reasons for rejecting these family homes as unsuitable for her future needs. She said that they were not in the "right part" of Finchley although she was unable to elaborate any further on why their specific location made them unsuitable. I accept that, as examples of what is available in the area, they occupy a different level of the local housing market from some of the property particulars she has produced but that does not, without more, make them unsuitable or inappropriate as examples of the type of home into which W and A can settle quite comfortably once she has the wherewithal to put down a deposit. In my judgment, and despite the fact that it is not his primary case, Mr Leech is on fairly solid ground in advancing these properties as potential candidates for meeting her future housing needs.

If W is to join the owner occupied market at an entry level of about £700,000, she will need to find a cash deposit of £245,000 and stamp duty of c.£25,000. Thus, the 'up front' cost to her in 2018 will be somewhere in the region of £270,000 depending on the extent to which she is able to negotiate around the price. I was not provided with any examples of particulars in the £1 million price range (that being the figure which W told me was her 'entry' level into this particular market). However, on the basis of a purchase at £1 million, she would need to find an additional £43,750 for SDLT and £350,000 by way of a deposit (a total of £393,750). She would need a mortgage of £650,000 which, depending on the mortgage term and the rate she is able to secure, is likely to cost somewhere in excess of £100,000 per annum. In addition, and on either basis, she must discharge her costs liability of £175,000.

Thus, on the basis of a purchase at £700,000, she will need liquid capital of £445,000; on the basis of a purchase at £1 million, she will need £568,750.

E. My conclusions

I am satisfied that this is a case where there are presently sufficient income resources to provide W and A with the security, in due course, of their own home. It is accepted that the position will change in the event of a material reduction in H's current income or the premature end of his playing career.

I am equally satisfied that, notwithstanding the absence of any marital acquest, this is a case where W's substantial ongoing contributions to the welfare of the family should be reflected in an entitlement to the future security which she seeks both for herself and for A. Significantly, I am reinforced in that view by the fact that, on H's primary case, she will be renting at a cost of £3,500 pcm (or £42,000 per annum). That is money which will to all intents and purposes be wasted. The differential between that sum and the annual cost of a repayment mortgage with an entry level (or purchase price) of £650,000 to £700,000 is such that it can, as I find, be absorbed as part and parcel of an appropriate, and affordable, award of periodical payments.

To that extent, it is not unreasonable, in my judgment, to allow W to 'stockpile' a portion of the sums she receives in order to divert those sums towards the discharge of a mortgage liability. Notwithstanding the length of the marriage, she has many years of intensive child-rearing in front of her and she is entitled to find that contribution reflected in the award which this court makes for her at the conclusion of these proceedings.

I do not accept that W needs the sums for which she contends in any of her three income budgets. Economies are inevitable in terms of her discretionary spending. Notwithstanding the very high income which H will continue to earn over the course of the next two or three years, those economies are, in effect, the quid pro quo for the security she will be building up as she pays down the mortgage. In my judgment, this is not a case where she is entitled to look to H to provide her with capital security over time whilst, in parallel with that obligation, requiring him to replicate the standard of living (or something close to it) which she describes during the short period of time they were married to one another. The analysis of her own proposals demonstrates that she would be left with a net spendable income of no more than c.£132,000 per annum. I know not whether she had thought through the implications of the mortgage debt she was proposing to take on in terms of her future cash flow, but I suspect there may be some truth in Mr Leech's submission that she was pitching her claims at their highest in order to secure a maximum award on the basis she would do the number-crunching thereafter.

There is, of course, an obvious correlation between my assessment of her housing needs and the appropriate award of periodical payments which, here, must be sufficient to absorb the impact of the mortgage repayments. In my deliberations about the fair outcome in this case, I have found myself commuting between £700,000 and £1 million as an appropriate housing fund for W. The evidence leads me to conclude that the lower sum, on today's prices, will be perfectly adequate to purchase appropriate accommodation in the general area in which she wishes to live. Of course she could buy a slightly better property with an extra £300,000 but, in my judgment, she does not need that uplift. The mortgage on a £700,000 property is likely to be easily contained within an allowance of £80,000 per annum for repayment over an 8 or 10 year period. I cannot at this stage speculate about the exact cost because I do not know what rate she will be offered when, in 2018 or on the later sale of the Miami apartment, she is in a position to buy.

This is not a case where it would be proportionate or appropriate for me to take a proverbial blue pencil to each item or category of expenditure in W's budget for herself and A. I agree with Mr Leech's approach that there is inevitably an instinctive figure which is likely to emerge from the totality of the evidence which has been put before the court. W accepted in her evidence that, at the end of the day, she will work within the budget which the court considers appropriate. However, judicial instinct, shaped and honed as it is by experience of many previous similar cases, has nevertheless to be anchored to some basis or rationale.

H's open offer presupposes that from March 2017, W will have moved into alternative rented accommodation costing between £2,600 and £3,400 per calendar month. Taking the mid-point of those figures, his offer of global support at the rate of £144,000 per annum thereafter would have provided her with an annual sum of £108,000 per annum for living costs once she had paid rent. The true net effect of her open proposal (£318,000 per annum) is likely to have left her with a disposable income after mortgage costs of something in the order of £132,000 per annum. I am satisfied that a budget of £120,000 per annum (including child support but exclusive of mortgage costs) is ample for this wife's and A's ongoing needs. It will give her £10,000 per month to defray all her costs. As to how that sum is apportioned as between W and A, I have no strong views either way although I would suggest that W's figure of £3,000 per month in respect of child support is not an unreasonable sum. This would result in an award of periodical payments to W in the sum of £84,000 per annum and £36,000 per annum for child maintenance. Together with the mortgage allowance of £80,000 per annum, H's total liability will be £200,000 per annum at least for the next seven years or the end of his playing career. In addition, he must discharge the nursery / pre-prep fees for A as and when they fall due. If A is to attend the local nursery which W has identified, this will cost an additional £7,500 in 2018 rising to £14,000 from 2019.

In due course, when she is able to make some financial contribution to her own needs, she may well have a disposable income which is closer to £100,000 per annum. Much will depend upon the manner in which she is able to manage her working hours around A's school terms. In the event that she secures employment which generates up to £15,000 per annum, I would not expect the level of H's financial contribution to her household to reduce. In other words, subject to any substantive review for which I will provide in my order, she should be entitled to benefit pound for pound from the efforts she makes to improve her household income.

On the basis that this package meets W's and A's needs, is this outcome fair to H in terms of its net effect on his financial situation ?

Leaving aside capital calls or liabilities for these purposes and in terms of the balance left to him, with effect from 2018 he will be paying for the benefit of W and A a sum of £214,000 per annum inclusive of nursery/school costs. Incrementally, she will be building up equity in her home as she repays the mortgage debt. On the basis of Mr Leech's assumptions as to his likely earnings in the three years between 2018 and 2020 (assumptions which are underpinned and supported to an extent by W's own evidence as to the foreseeable tapering off of his earnings by that point in time), he will retain the balance of his £900,000 annual net income (i.e. £686,000 or 76%). Notwithstanding the other calls on his income from extended family members, I am satisfied that there is adequate scope within that income to enable him to make provision for his own housing needs whether he chooses to meet those needs through renting and investing on a commercial basis or whether he, too, chooses to buy a home for himself. I suspect that the somewhat peripatetic demands of his future career may dictate what he decides to do. Ultimately, that is a matter for him but I am satisfied that he can afford to make provision for his own future on either basis. Even if his income dips to £650,000 net per annum (which is Mr Leech's assumption post-2021), he will have a disposable income of at least £436,000 per annum (67% of his total net).

As Mr Southgate properly reminds me, these are in effect worst case scenarios because, for so long as he continues to play, H is likely to earn substantial bonus payments and these I have left out of account in my calculations. There is, in addition, the uplift for him in currency fluctuations if sterling continues to weaken: a snapshot of his income at today's fx rates translates into a sterling equivalent of £1,017,536 (an uplift of £100,000 plus).

Thus, in my judgment, an income award which meets W's needs (including her entitlement to stockpile through paying down a mortgage) is both affordable and fair to H.

I am not going to impose a term on the spousal element of the maintenance but I do consider it fair to include in the order a recital recording the fact that there should be a review of H's financial obligations to W after 7 years or earlier in the event of a material reduction in his income ("the maintenance review") As far as A's maintenance is concerned, it seems to me that the future is far too uncertain to be legislating now for what is to happen when he leaves school at 17 or 18 years. By that stage, H may be a very wealthy man in which event I would expect him to support A in the next stage of his educational career, whatever choices he may then be making in terms of his own future. For similar reasons, I am not going to make any orders in respect of private education beyond the point of the 7 year review although I am prepared to accept H's evidence that he will always wish to support A whilst he has the means to do so.

In terms of the immediate future, both parties have debts which need to be paid. H offers W a lump sum of £150,000 to assist her to clear her own debts. I accept that this was his offer in the context of an income award which is lower than that which I have decided is appropriate.

If W is to be clear of debt by the time she is in a position to buy a home of her own (which we have assumed will be 2018 when the Miami apartment will be sold), she will need to find the following sums:-

Unpaid legal costs £

(i) Vardags 145,000

(ii) FLIP 30,000 £175,000

Her current rent of £64,800 per annum can be met from the stockpiling element of her maintenance (£80,000) which will not be required this year to pay down the mortgage advance. I am not going to require her to move to alternative rented accommodation from March 2017 (as Mr Leech says she should). In my view, the potential saving of some £2,000 per month is not proportionate to the amount of disruption which another short term move would be likely to cause and H's income is sufficient to bridge that gap in the short term. Thus, she will have some £15,000 surplus in Year 1 which she can use to discharge part of these liabilities.

I am satisfied that the proceeds off sale of the Hale property should be released to W forthwith upon decree absolute. Together with the £15,000 surplus to which I have referred above, she will have a total of £110,000 to put towards her costs liability leaving a balance of £65,000 to clear the outstanding debt. It seems to me that repayment of the Vardags debt will have to be given priority since they hold what is in effect a first charge on all monies recovered by W in this litigation. The balance of that debt (i.e. £35,000) and the sum which she owes her present solicitors (£30,000) can only come from one of two sources. Either £65,000 must be found on an instalment basis from such savings as she is able to make from her income or it will have to come from the capital / liquid funds which H retains. That capital consists of his unpaid bonus (€100,000 or c.£85,500) and whatever equity is realised on a sale of the Miami apartment (currently estimated to be £374,000).

In order to gain any traction on the housing market, and in accordance with my findings in relation to her housing needs, W will require a cash deposit of £270,000 (which includes SDLT). I am satisfied that this sum should be paid to her from the net proceeds of sale of the Miami apartment. On current projections, and on the basis H makes the final payment due on completion, it will provide her with just over 36% of the net proceeds and her entitlement should be expressed in the alternative as the greater of that fixed lump sum or 36% of the eventual sale proceeds.

Because I take the view that both parties must share responsibility for the costs of this litigation (which global costs I regard as excessive and wholly disproportionate to the issues in the case), I am not going to require H to make available to her a further lump sum to enable her to clear in full her residual liability for costs (£65,000). He has his own costs to pay and I bear well in mind that W made no contribution to the purchase of the Miami apartment which is in its essential character non-matrimonial property. Whilst I was originally minded to leave that outstanding liability for her account alone, I have to accord due weight to the fact that this is a needs-driven case. Because I have calculated W's income needs as realistically as I can (albeit on a basis which reflects H's very substantial income receipts over the course of the next few years), there is unlikely to be sufficient flexibility in her budget to repay £65,000 over a time frame which is acceptable to her lawyers. For this reason, and this reason alone, I am prepared to require H to contribute a further sum of £32,500 (which represents 50% of her residual costs debt). I do that purely and simply on the basis of reducing her outstanding debt to a figure which I regard as manageable out of her future income. In other circumstances I might have required H to wipe the slate clean for her in respect of legal costs but I cannot ignore the fact that it took many months for her to respond on an open basis to his February 2016 proposal. By the time her open offer came, it was too late to avoid the majority of the costs which had by then been incurred. On the other hand, H's concession that it would be reasonable for W to become an owner occupier provided that the cost of her accommodation was reasonable only came as he was giving his oral evidence I am certainly not seeking to level criticism at any one particular firm and I acknowledge that each of the current firms of solicitors involved in this case has had to "run" with the costs which they inherited from their predecessors. However, it is trite law that a party can only protect his or her position in relation to costs by making open offers. That is how the system now works following the change in the rules. This is, at the end of the day, a case which is driven by W's needs. I am satisfied that H will be able to find the additional £32,500 out of income given that he may well be in line for a bonus payment or performance fee in the coming months. Whilst I have declined to take these payments into account when assessing his disposable income for the purposes of calculating W's periodical payments, they do nevertheless provide additional cash flow for H.

Thus, the broad framework of my order will be as follows:-

(i) H will pay to W periodical payments at the rate of £164,000 per annum payable monthly in arrears by banker's standing order. Of that sum, up to £80,000 per annum shall be earmarked for mortgage repayments over an 8 or 10 year period. In terms of safeguards, Mr Southgate suggested in closing submissions that these sums could be diverted to the lender via his instructing solicitors. I can see practical difficulties with this arrangement but, if it is one which is acceptable to all the parties, I shall not interfere in those arrangements. It may be that further thought is needed before committing the arrangement to a final order of the court. The purpose will be to protect the stockpiled mortgage funds so as to ensure that W is indeed building up equity in her home and not dissipating that portion of the maintenance payments on other discretionary expenditure.

(ii) In the absence of some other agreement as to the apportionment of the global financial support to be paid to W, maintenance for A will be fixed at £36,000 per annum. In addition, H will discharge his nursery/pre-school costs and any other agreed educational costs up to the point of the seven year review. I would hope that A's transition from pre-school to junior school (which is likely to take place before the review) will not give rise to further disagreement between his parents. It is too soon at this stage to make any judgment call in relation to where he should continue his secondary school career. W told me that he can move seamlessly at the G School from pre-school to infant school. If that is the case, I would hope that H will agree to continue funding that placement. It is certainly affordable on the basis of his present income.

(iii) On this basis, the global maintenance award for W and A (excluding school fees) will be £200,000 per annum in total. These payments should be index-linked in the usual way.

(iv) W will be responsible for discharging from her periodical payments the rent on her current home and/or any other rented property to which she might move prior to the purchase of a property. If she wishes to make further savings by moving for the next 12 or 18 months to a cheaper property, she can do so but, for the reasons I have explained earlier in this judgment, I am not going to require her to do so.

(v) The payments will be expressed (a) to W on a joint lives basis but subject to the maintenance review; and (b) to A until he attains the age of 18 years the completion of his secondary education (if later) but on the basis that this period may be extended to cover the costs of his tertiary education (including his general maintenance) following the maintenance review.

(vi) H will pay W a lump sum of £32,500 to enable her to clear part of her outstanding costs. The timing of that payment will, I hope, be agreed. In addition, and on the basis that W will undertake to use the funds to reduce her liability in respect of outstanding legal costs, the balance of the Hale sale proceeds which are currently on deposit (including any accrued interest) will be paid to her forthwith upon decree absolute.

(vii) There will be an order for sale in respect of the Miami apartment following its completion. It should be marketed for sale at the best price reasonably obtainable and H will have sole conduct of the sale although W must be kept informed of all marketing advice and offers received. From the net proceeds of sale, H will pay to W the greater of 36% of the net proceeds or a lump sum of £270,000. This sum will be used to cover the cost of the deposit and stamp duty on the home which she will then be in a position to buy for herself and A.

(viii) Save as otherwise provided, there will be a clean break as between the parties on the basis that, save as above, each will retain his or her own assets and each will be responsible for their own liabilities. I did not hear any evidence in relation to chattels but I am proceeding on the basis that no further orders need to be made in this respect.

(ix) The order will provide that W shall not be required to repay the amounts paid by way of LSPO but that otherwise here will be no order for costs.

I shall leave it to counsel to agree a form of order. If further matters arise, I will deal them either on paper or by way of a further short hearing.

Order accordingly