G v G (Confiscation Order: Conduct)  EWFC 1626 January 2023
Published: 17/02/2023 09:00
HHJ Robinson. The Husband ('H') was 53, the Wife ('W') 50. Having cohabited from 1999 and married in 2006, the parties had two children of ages 15 and 11. W was a secretary but a debilitating illness precluded her from working. H was a doctor before he was suspended from work and convicted of fraud owing to the representations he made to obtain that post. He was sentenced to 6 years’ imprisonment and made the subject of a confiscation order worth £411k ('the Sum'). The CPS were joined to proceedings due to their interest in the Sum.
There were three properties: the FMH (net value of £416k) where W and the children lived; an unencumbered property in London owned by H and his mother (in which the court found H to have a 33% interest) with a net value of £1.23m; and a property in Scotland formerly owned by H but transferred to his mother in 2021 – it is valued at £521k. The only other asset was H’s NHS pension. It had a CE of £517k, but there was no pension expert report.
W sought the transfer of the FMH but for H to pay the mortgage, a lump sum of £266k and half H’s pension. H sought to share the burden of the Sum, jointly; the FMH to be sold and net proceeds divided equally and a straight line apportionment of his pension.
The court found:
- H’s interest in the London property was no more than 33%. It formerly was held as tenants in common between him and his parents and, H’s father having died intestate, the judge saw no basis for H’s interest being greater than 33%.
- H was not the beneficial owner of the Scottish property, notwithstanding his recent legal ownership, but may benefit from it in the future. In any event, it was non-matrimonial.
- This was ‘clearly a case in which H’s conduct [his fraud conviction] would be inequitable to disregard’. It was a serious conviction which W said had a ‘catasrophic’ impact on her and the children. However, his conduct was not so inequitable that the court was prepared to prejudice him returning to prison for not paying the Sum.
Accordingly, the judge transferred to W H’s interest in the FMH but refused to order an additional lump sum as it would risk H returning to prison. With only the CE of H’s NHS pension, the judge made a pension sharing order in W’s favour worth two thirds. He found this would allow W to repay the mortgage at 55.