Recorder Rhys Taylor.

Facts

W (36) and H (41) married in 2017 and separated in 2022. The parties had one child, a daughter, aged 3. Aside from the FMH which had equity of £100,00, the two key assets were: i) a London flat in W’s sole name with a net value of c.£50,000; and ii) proceeds of an Iranian property to which H had legal title until May 2022 when it was sold and the proceeds taken by his mother. W had £79,820 of debts to family and friends and £42,854 of debts to commercial entities. H had £70,000 of commercial debts and £32,787 of debts to a personal associate. H had pensions of £86,983 and W £28,844.

W’s second property

W’s position was that she and her brother had agreed the property in her sole name was co-owned by them as tenants in common. As a fall back, W submitted that her brother had an equitable interest in the property under a common intention constructive trust. Held: W’s 'ownership agreement' with her brother was conclusive evidence that the property was co-owned with her brother; [92]. In the alternative, W presented clear evidence of a common intention to co-own the second property with her brother and, there was sufficient detriment so that a common intention constructive trust could be found; [93.11].

Iranian property

H’s position was that the Iranian property was received by his mother as part of her divorce settlement but was in his name due to her anxieties of holding sole legal title to the property as a woman in Iran. W submitted that H was the beneficial owner of these net proceeds of sale and H was hiding this to put the proceeds of sale beyond the parties’ financial settlement. Held: There was a presumption that H was the beneficial owner of the sale proceeds to the Iranian property unless he was able to discharge the evidential burden on him; [119]. H failed to discharge this evidential burden by failing to provide the court with documentation which was in his power to do so; [119]. In coming to the decision that H did have a beneficial interest in the net proceeds of sale of the Iranian property, the unlikelihood of a flat in Tehran selling for as little as £6000 was taken into account; [122].

Debts

The Recorder applied the guidance in P v Q [2022] EWFC 89 and held that W’s debts to family were 'soft loans' but, her debts to friends were 'harder'; [130]–[131]. W’s commercial debts were 'matrimonial debts'; [133]. The Recorder held that all of H’s debts were 'assumed to be repayable'; [137].

Determination

As W was the primary care giver and assets were modest, 'W would be entitled to a significant departure from equality on the basis of needs'; [152]. H’s legal and beneficial interest in FMH was to be transferred to W, subject to mortgage; [143]. The Recorder declined to make a lump sum order against H holding that 'there is little point in making a lump sum order against assets which H is hiding'; [150]. However, W’s lump sum and pension claims would not be dismissed until H had complied with the terms of the Recorder’s order ([150]), including return of her jewellery. H was ordered to pay spousal maintenance to W at the rate of £700 pcm in addition to CMS payments of £660 pcm; [159]. Spousal maintenance payments were payable by H until the later of August 31 after the child completed secondary education or her 18th birthday; [163]. The contents of the FMH were to be transferred to W, save for H’s personal items; [166].

Costs

A costs order by way of pension sharing was not an abuse of process ([198]) and such an order was made. (After hand-down): H had not properly disclosed his pensions or the fact that they were accessible now albeit with tax consequences.

Qualified Legal Representatives

This was the first example of a Qualified Legal Representative (QLR) being used in financial remedy proceedings. The power to appoint a QLR is found in Part 4B of the MFPA 1984, ss 31Q–31Z, and FPR PD 3AB. The purpose of the QLR is to 'prohibit perpetrators or alleged perpetrators of abuse from personally cross-examining their victims or alleged victims in family proceedings'; [76]. The Recorder recognised that 'the court’s experience with this novel species for the family court is that there is need for judicial awareness and input in the run up to any hearing in which a QLR has been appointed'; [89]. For instance, as the QLR was not entitled to see the bundle in advance of her being appointed, she was unable to assure herself that the matter was within her competence. Judicial assurance was needed to make clear that the QLR would be discharged from their duties if the case was deemed to be outside of the QLR’s competence; [88]. Outside the remit of a QLR lay taking instructions from a client as opposed to eliciting information; asserting client confidentiality; representing beyond cross-examination; negotiating; making closing submissions or drafting orders. The QLR in this case had travelled from Manchester to London, there being no QLR available in the whole south-east, and the current fee structure did not allow for overnight accommodation or travel costs.

Editor’s note: the ‘B’ in the citation to this case is a new method used by the National Archives of identifying cases heard below High Court level.