DDJ Rose. Final hearing in modest asset case. Court making findings on the validity of H’s purported loans/gifts to the parties’ children. Consideration of the Kimber factors concerning point of cohabitation.

Facts

The parties married in 2007. The date of pre-marital cohabitation was disputed by the parties: 1993 on W’s case, versus 2004 per H. Both parties had been married previously. There were two children born of the marriage (‘ARC’ and ‘ARD’), as well as children from previous marriages.

W had a net income of c.£22k pa. H was a contractor with variable income, but for the purpose of proceedings a figure of c.£82k pa had been provided. There were four properties of note within the case, including ‘No. 11’, a property purchased by W in 1996 under the right-to-buy scheme and subsequently rented out by the parties, the income from which was paid to W.

Earlier in the proceedings, DJ Earl had described an application by H to have his pensions ringfenced in order that they be available to (as yet uninitiated) future proceedings with his first wife as ‘deceitful, a disgrace and deliberately to frustrate the process’.

At final hearing H sought to argue that No. 11 should be treated as his non-matrimonial property on the basis of his contention that he had provided the funds used to buy the property, and because he had since bought out W's interest in the property for market value.

Also at issue were a number of purported gifts/loans made by H to the parties’ children after the parties’ separation:

• In December 2022 H purportedly entered into a loan agreement with the parties' son ARC for €80,000; the sum was subsequently transferred by H to ARC in three tranches.
• At some point between February and May 2024, H transferred c.£26,000 from his sole account to the parties' son ARD, including £20,000 purportedly for renovation works at ARD’s home. W stated that this was not shared with her until after the event; per H, W had been aware of, and in agreement with, the transfer.
• The parties also owned a Mercedes-Benz van, which H stated had been transferred to one of the parties’ other children, and a Volkswagen Golf, which per H had been gifted to ARC.

Discussion

DDJ Rose found that W's evidence was ‘largely in keeping with her written evidence’ ([51]), whilst, in contrast, H's evidence was ‘at times fractious, obstructive’, and ‘he failed to answer simple questions when put, instead feigning misunderstanding or an inability to see the relevance of what were clearly pertinent questions’; [53].

When put to H in cross-examination that the funds transferred to ARD between February and May 2024 were simply for ARD to hold pending the outcome of these proceedings, H was unable to explain why he would transfer funds for renovation works without sight of any plans or planning permission being obtained; [56]. Likewise, when put to H in cross-examination that the sum of €80,000 was also merely being held by ARC pending the outcome of proceedings [57], H initially asserted in response that this sum was a loan, however later ‘unequivocally confirmed’ that the monies were a gift; [59]. Regarding the transfer of the parties' cars, H was unable to provide any evidence of the transfer of the Mercedes-Benz van, which was put to him as being another deliberate act to diminish the marital pot further; [60].

Held

DDJ Rose found that the parties were in a familial relationship including cohabitation from 1993; [67]. In reaching this conclusion the judge gave consideration to the factors set out in Kimber v Kimber [2000] 1 FLR 383 as relevant to the determination of cohabitation, including inter alia habitual living together, sharing of daily life, and mingling of finances; [67].

There was no reason why No. 11 should be ring-fenced for H's benefit. The property was ‘truly woven through the fabric of their relationship’; [68].

Echoing the earlier sentiment of DJ Earl, the judge stated that H's invitation to pay some heed to a potential claim by his first wife was ‘a nonsense’; [69].

The transfer of €80,000 to ARC was found to have been done ‘with the sole intention of defeating [W's] action for financial remedy’, and therefore met the requirements for a s 37 addback; [70]. Likewise, the purported gift of c.£26,000 to ARD was ‘a plain and obvious attempt to defeat these proceedings’, and similarly met the requirements for addback; [71]. The Mercedes-Benz van and the Volkswagen were also treated as being available to H, given the lack of evidence relating to the purported transfers; [72].

Costs

DDJ Rose determined that this was a case in which H had ‘sought to exercise control’ over W, following Hayden J’s description of coercive conduct in F v M [2021] EWFC 4 (Fam); [83]. W was thus awarded her costs ‘due to the delays, and the unreasonable and deceitful conduct’ of H; [92].