AB v FC, Court of Appeal - Family Division, December 19, 2016, [2016] EWHC 3285 (Fam)

Resolution Date:December 19, 2016
Issuing Organization:Family Division
Actores:AB v FC

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: ZC15D02654

Neutral Citation Number: [2016] EWHC 3285 (Fam)



Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 19/12/2016

Before :


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Between :

(Short marriage: Needs: Stockpiling)

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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

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JudgmentMrs Justice Roberts :

A. Introduction

  1. 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 ?

  2. 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).

  3. 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.

  4. The facts can be simply stated.

  5. W is 31 years old; H will celebrate his 28th 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.

  6. 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.

  7. 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.

  8. 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.

  9. 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.)

  10. 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.

  11. 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.

  12. 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.''

  13. 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...

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