Roundup of recently reported modest asset cases
As the end of the first week of the Financial Remedies Court (FRC) Reporting Pilot in Leeds draws to an end, what follows is an update of modest asset cases reported in the last six months:
VT v LT [2023] EWFC 256 (B)
https://www.bailii.org/ew/cases/EWFC/OJ/2023/256.html
DJ Hatvany sitting at the FRC in Bristol, 18 December 2023
Core facts:
W (lived in rented accommodation); H (continued to live in the FMH- in his sole name)
18-year relationship with three children (two of which still minor; shared care in place)
Assets:
FMH (four-bed) with net equity of £118,000 (used by H for his business)
Marital debt £33,777 in H’s name and £3,922 in W’s name (plus legal costs)
H’s business, value uncertain but income stream for H who was sole shareholder
Parties’ positions:
W sought a sale of the FMH and a lump sum of £80,000 to buy a shared ownership property, with H to retain all marital debt
H sought to retain the FMH and pay W a lump sum of £45,000 (£20,000 now and balance within 18 months)
Outcome:
- H to retain the FMH (the judge accepted that this functioned as an office for H as well as a home and he could not afford to relocate)
- H to pay W a lump sum of £55,000 (£20,000 now and an additional £35,000 within 24 months), with an order for sale in default
- H to service the marital debt in his name
- Pension Sharing Order in W’s favour
- Clean break
Useful takeaways from this case:
This is a short, ex-tempore judgment similar to the ones we may encounter in our day-to-day practice. DJ Hatvany speaks for the entire profession when he says at paragraph 33: “There is no easy answer. The court can only look for the fairest solution in difficult circumstances having regard to the criteria set out in section 25 of the matrimonial causes act 1973.”
The parties both had responsibilities towards the children of the marriage, and equal housing needs. One of the difficulties was that W’s income was supplemented by Universal Credit and therefore any lump sum over and above £16,000 would have wiped out her entitlement to Universal Credit unless it was utilised to meet her housing needs (hence the shared ownership) within six months (or longer if a sale did not complete). For a detailed analysis of the interplay between financial remedy orders and welfare benefits, the following articles on the Financial Remedies Journal are a must-read: https://financialremediesjournal.com/content/an-overview-of-the-benefits-system.71b2fff3de2345a7b71ce6a73ed4d5a0.htm and https://financialremediesjournal.com/content/an-overview-of-the-benefits-system.71b2fff3de2345a7b71ce6a73ed4d5a0.htm).) The judge opted for a ‘creative’ solution, i.e. a deferred lump sum which enabled H to retain the FMH (at least in the interim) and to allow W to part-fund a shared ownership property. This case also highlights the difficulties that both courts and practitioners face at present with competing evidence on the parties’ borrowing capacity.
AXA v BYB (QLR: Financial Remedies) [2023] EWFC 251 (B)
https://caselaw.nationalarchives.gov.uk/ewfc/b/2023/251
Recorder Rhys Taylor sitting at the Central Family Court, 18 December 2023
Core facts:
W aged 36 (lived in rented accommodation); H aged 41 (continued to live in the FMH- in his sole name)
5-year relationship with a child aged 3
Assets:
FMH net equity £100,000
London flat in W’s sole name net equity of £50,000 (W found to hold 50% beneficial interest)
Proceeds of Iranian property owned by H but sold in 2022 (value unknown)
W’s debts totalling £122,674 and H’s debts totalling £101,600
H’s pensions £86,983 and W’s pensions £28,844
Parties’ positions:
- W sought an order for sale and 100% of net proceeds to be paid to her or a Mesher order until child attained majority. She also sought periodical payments and her jewellery to be returned.
- H sought to retain 75% of the net proceeds of the FMH, his pensions and clean break.
Outcome:
- FMH (and contents) to be transferred to W subject to mortgage
- Spousal maintenance at £700 pcm until child’s 18th birthday or completion of secondary education (global figure including CMS £1,360 pcm)
- Cost order made by way of a pension sharing order, based on the limited amount of capital available against which W could enforce a costs order. This was expressed as follows in the order: “There is no order as to costs save that the court made a 100% pension sharing order over H’s Vanguard pension and has required H to pay promptly any costs of implementation in order to satisfy the costs liability.” (it later became apparent that the Vanguard pension was not illiquid, and the costs order was therefore amended to provide for 75% of the pension fund to be paid to W within 21 days).
Useful takeaways from this case:
This is the first reported case that deals with the involvement of a Qualified Legal Representative. Recorder Taylor acknowledged the difficulties that this role entails, not least the fact that a QLR is not entitled to see the bundle in advance and cannot therefore make a judgment as to whether the case is within their competence. It is an extremely well-structured judgment with hyperlinks which enable the reader to jump straight to the relevant issue. The court held that W was entitled to a significant departure from equality on the basis of her needs. He quoted the recent judgment of Moor J in Butler v Butler [2023] EWHC 2453 (Fam) where he had stated that in a needs case the court does not necessarily need to make an order that meets both parties’ needs. The Recorder was unimpressed with H’s evidence and his lack of disclosure. He concluded that H would have to rent somewhere and commented at paragraph 148: “if this feels like rough justice, H only has himself to blame. He has the beneficial ownership of an undisclosed sum of money somewhere”.
JN v GN [2023] EWFC 244
https://www.bailii.org/ew/cases/EWFC/OJ/2023/244.html
DJ Hatvany sitting at the FRC in Swindon, 21 November 2023
Core facts:
W aged 60 (continued to live in the FMH); H aged 62 (lived with partner in social housing with secured tenancy)
23-year marriage with one adult child
Assets:
FMH with equity of £224,500
H’s inheritance £468,000 + £30,000 for a painting (dissipated)
H was also alleged to have dissipated £28,000 endowment policy and £56,000 cashed-in pension
Modest pension provisions
Parties’ positions:
- W sought a transfer of the FMH into her name and H to clear the outstanding mortgage, as well as a cost order
- H agreed that W should retain the FMH but did not agree to repay the mortgage
Outcome:
- FMH transferred to W
- W to retain responsibility to repay the mortgage
- Departure from equality justified on the basis of H’s spending
- Clean break
- H to pay £10,000 towards W’s costs (£350 pcm due to lack of resources) due to litigation conduct
Useful takeaways from this case:
District Judge Hatavny took a very pragmatic approach when confronted with a limited asset base and significant non-compliance as well as financial misconduct on H’s part. He ensured that W’s housing needs were met (taking into account her health issues) whilst acknowledging that it would be unfair to require H to repay the mortgage. The approach taken by the judge on costs is also worth of note and it is hoped that it can be replicated; in the vast majority of low-asset cases, there are usually no resources left to pay for a cost order (within 14 days or at all) and this appears to sometimes discourage courts from entertaining cost applications. However, a cost order in a low-value case can go a long way and this instalment-based approach is to be given serious consideration.
Ditchfield v Ditchfield [2023] EWHC 2303 (Fam)
https://www.bailii.org/ew/cases/EWHC/Fam/2023/2303.html
Peel J on appeal from a decision of Mr Recorder Samuels KC, 20 September 2023
Core facts:
W aged 55, H aged 49
15-year marriage with two minor children aged 17 and 13
Assets:
Property 1 £110,000 net equity
Property 2 £110,000 net equity
Rent in bank account £41,000
Combined business interests about £270,000 net
H’s pension £43,000
W’s debts £40,000
H’s debts £85,000
Outcome of the appeal:
- The judge at first instance had operated a departure from equality, 62/38 in W’s favour and made findings against H in respect of deficient disclosure, manipulative approach to litigation and deliberate downplaying of resources;
- The appeal was dismissed on all 6 grounds;
- Two amendments were made to the substantive order, namely that a provision giving a specified timeframe for H to repay his sister a soft loan was deleted, and a s 28(1A) provision was added.
Useful takeaways from this case:
This case highlights the difficulties that parties face when appealing findings of fact. The judge at first instance had been satisfied that, even if H’s share was less readily realisable, it was nonetheless sustainable, and he had only himself to blame for the judge’s adverse findings.
Of particular interest is Peel J’s rejection of H’s criticism of the first instance court’s treatment of the available resources with reference to the parties’ housing needs. Mr Recorder Samuels KC had found that H would need time to rebuild his resources so as to buy a property and, with his earning potential, he would be able to do so. Peel J commented at para 39: “although it is generally desirable in financial remedy cases for each party to be able to own a property, with the attendant benefits of security and potential investment upside, it is not an iron rule. It will all depend on the facts. In this case it is not possible to do so at this stage.”
Butler v Butler [2023] EWHC 2453 (Fam)
https://www.bailii.org/ew/cases/EWHC/Fam/2023/2453.html
Moor J on appeal from a decision of Recorder Anderson, 24 August 2023
Core facts:
W aged 53 (lived in rental accommodation), H aged 64 (lived in owned property)
Six-year relationship, one child aged 16
Assets:
Property purchased by H £410,000 equity
Land in Jamaica owned by W £16,000
H’s small pension in payment
Both parties had debts
Outcome of the appeal:
- Recorder Anderson had ordered H to pay a lump sum of £58,000 to W and a clean break.
- The appeal was a dismissed on the basis that the Recorder was entitled to make the order that he did; the lump sum ordered would enable W to clear her debts and there were no circumstances in which W would be able to purchase her own property.
Useful takeaways from this case:
The unusual feature of this case is that the parties’ marriage had been in name only from 2009, despite the divorce petition being dated March 2020. Therefore, the property where H was residing was non-matrimonial, having been acquired post-separation. The appeal court did not interfere with the decision of the Recorder, accepting that he was entitled to reject an outcome which would have rendered H homeless. Moor J’s comment at para 39 will no doubt feature in many position statements and skeleton arguments moving forward: “The fact that a judge rightly concludes that a case is a “needs” case does not mean that the judge must then make an order that satisfies both parties’ needs. In one sense, this is obvious, because there may simply be insufficient assets to satisfy the needs of either party, let alone both.” Moor J goes on to say that “the court cannot simply apply needs as the only consideration”, and it must in fact consider all factors under s25 MCA. Moor J found that the Recorder was entitled to reject making an order that would make H homeless, particularly in light of the non-matrimonial nature of the main asset.
As a side note, Moor J’s initial comments on the litigation costs, congratulating the lawyers for “the sensible and economic way in which the matter has been litigated”, make a welcome change from the stark criticism made by the higher courts on the disproportionate nature of the litigation costs incurred.
Conclusion
It is hoped that the extension of the transparency pilot to financial remedy cases will lead to more widespread reporting of low-modest asset cases. These are certainly the cases that lead legal representatives to scratch their heads, not to mention the pressure on mounting legal costs when the parties can barely afford it.
