A v A, Court of Appeal - Family Division, August 17, 2018, [2018] EWHC 2194 (Fam)

Resolution Date:August 17, 2018
Issuing Organization:Family Division
Actores:A v A
 
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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.

Case No: FD10D00273 / 2017/0162

Neutral Citation Number: [2018] EWHC 2194 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 17/08/2018

Before:

THE HON. MR. JUSTICE COHEN

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Between:

Mr J Turner QC and Mr M Sirikanda (instructed by Withers LLP) for the Applicant Husband

Mr P Chamberlayne QC and Ms S Hillas (instructed by Irwin Mitchell) for the Respondent Wife

Hearing date: 21st June 2018

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JudgmentTHE HON. MR. JUSTICE COHEN:

  1. On 28th February 2018 I handed down a judgment allowing an appeal by the husband against an order of Her Honour Judge Hughes QC dated 8th September 2017. I will not repeat the terms of that judgment but its contents are to be imported into this judgment.

  2. As I made clear in my earlier judgment I was not in a position to establish the terms of a replacement order as I had inadequate information about the wife's finances. The parties agreed that rather than remit the case I should retain it and an order was made requiring the wife by 7th March 2018 to serve a statement containing a breakdown of all her current capital assets, her liabilities, her income from all sources and her outgoings.

  3. I had anticipated this hearing coming back before me in March 2018. It is a matter of regret that that has not happened, largely as I understand it due to counsel's commitments. But, there has been one fortunate development, namely that at the date of the hearing on 21 June the former matrimonial home known as RG was under offer with an anticipation that exchange would take place very speedily with completion by 1st August 2018. I circulated the draft judgment about one week after the hearing but was then asked by both sides not to hand it down until there had been completion which was delayed.

  4. My draft judgment assumed that the wife would receive between £100,000 - £200,000 in respect of 22 acres land owned by the parties adjacent to the property and from the sale of various chattels. In fact, she has received some £125,000 as they were sold to the RG purchaser. There may be an overage payment if the purchaser obtains planning permission for the land. Neither party has suggested that this receipt and/or potential benefit should alter the outcome that I indicated in the draft judgment and I do not propose to alter the judgment or schedule to reflect its receipt. I have little doubt that some of the money will go on the increased legal fees that she will have incurred and the surplus is de minimis.

  5. The wife's means:

    I set these out as at June 2018 in tabular form in the agreed schedule annexed to this judgment and I summarise them as follows:

    i) Her share of RG inclusive of the lump sum due to her from the proceeds: £ 3,469,482

    £ 2,494,700 Less mortgage on BL

    £ 974,782

    Investments: £ 101,630

    Cash: £ 127,266

    FURBS received: £145,947

    Balance of lump sum that can be taken by way of pension: £315,000

    £ 729,126 Balance of pension fund after tax

    £ 2,393,000 TOTAL

    She has an outstanding costs liability of £79k reducing her assets outside of BL to £2.314m.

  6. In addition, she has her own home ``BL'' which after repayment of the mortgage has a value of £2.8m.

  7. The good news is that RG has sold for £6.5m, £500k more than was anticipated in the February hearing.

  8. There have been a number of developments in her financial position of which I was not aware when I gave judgment in February 2018; these include the following:

    i) As mentioned, RG has sold for more than anticipated;

    ii) W has assets in terms of investments, cash and FURBS, of which I was previously unaware;

    iii) There are 22 acres of land around RG and some chattels which have been sold as stated;

    iv) On the downside, the Spanish villa has not sold and the hoped for price of £1.75m may be optimistic.

  9. The indebtedness of the wife to the husband continues to increase. As of the date of the hearing it stood at £1.591m and by 1st August will have been in the region of £1.625m.

  10. The wife has no income other than what she received from the husband.

  11. The wife has a liability, included in the figure of £1.625m, arising when the Spanish villa is sold of the excess of the sums that she owes the husband over and above what she will receive out of the sale proceeds, namely £1.454m. It is calculated that if the villa were to sell for £1.75m, which is optimistic, the sum that she would owe to the husband would be about £170k on the basis that her liability is not paid from the sale proceeds of RG (see below).

  12. The husband proposed during the hearing that there should be a significant modification of the order made in 2011, namely that the sums that the wife owed the husband...

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