District Judge Dinan-Hayward significantly departed from equality in the wife’s favour, where the applicant husband did not attend the final hearing, failed to engage with his own application and failed to undertake proper disclosure.

Background

H 43, W 47. 13-year relationship. Two children, 15 and 13 years. H retired professional footballer. W's ability to earn was severely restricted. The judge found she was a rare litigant who could have brought a compensation claim.

FMH sold in 2021. NPS £1.2m, paid into a joint account paying off the joint overdraft and then frozen by W. There was separate litigation: Children Act, injunctions, s 37 and a preliminary issue/intervention hearing. H failed to attend the FDR in Nov 2023. In any event, the FDR could not have been effective due to H's non-disclosure.

As a result of H's non-disclosure, W's solicitors were forced to undertake detective work, which increased W’s costs. As a result of TPDOs, it became clear that H had made a number of withdrawals, including from his SIPP amounting to £255,000 gross. H also attempted to strike off companies and did dissolve one.

At the final hearing, the court had an application brought by H, who had not attended to or engaged with his application. Therefore, W was responding to an application not actively pursued by H. The court treated the application as being actively before it and, in the interests of justice, undertook a fully contested hearing.

Key findings

1. Strong adverse inferences were drawn against H due to his non-disclosure and non-compliance with court orders; [7], [9], [50] and 67].
2. W was a rare litigant who could have brought a claim for compensation if the assets were available. They were not. W could not adjust without undue hardship; [52].
3. H had an earning capacity of £25,000–£50,000 and the associated mortgage raising capacity; [56]–[57].
4. H would not see the children and was, in effect, a single man. A 1–2 bed flat would meet his needs; [57].
5. H made significant contributions due to his profession; [60]. However, W also brought significant sums into the marriage; [61]–[63].
6. H had intentionally shut down companies where there had been significant investment from W; [65].
7. There was non-disclosure of capital, income, and income resources by H. H's conduct amounted to litigation and financial misconduct; [66]. H had much to gain in this case and other litigation by not disclosing; [68].
8. H's assets were greater than those listed on the ES2. The value of H’s assets was unknown due to H's lack of disclosure, which would have meant the court could have an understanding of H's finances; [69].
9. H had significantly increased costs by making applications, which were, in the main, without merit; [71] but also see [11] and [74].
10. H had drawn down his pension to reduce it as much as possible (unnecessarily incurring tax), leaving the court with the impression that H wanted to dissipate those assets as soon as he possibly could; [75].
11. W's debts were repayable, and therefore included in the computation. H's debts were unpaid costs orders in W’s favour, and it was the fairest approach to exclude them from the computation; [87]–[88]

Outcome

There was a significant departure from the equal starting point in W's favour both in terms of quantum and the nature of the assets. What appears to be 50/50 (or thereabouts) on the balance sheet does not take into account assets not disclosed by H and also excludes H's debts arising from unpaid costs orders against him (in W's favour) from the other litigation. The court also had in mind the fact H paid costs orders to W from the joint account.

Costs of the final hearing are not addressed in this judgment.

For practitioners

Practitioners must be prepared for a fully contested final hearing even where a party has not attended, not pursued their application, failed to provide disclosure and reduced their assets.

W's barrister and solicitors were praised for being helpful and being fair in their presentation of H's case.