Moor J. A striking age difference, 48 years between the parties, gives rise to a strong needs-based claim.

Background

• Both parties were born in Iraq and married in September 1999. At that time, H was 68 and W was 20. By final hearing H was aged 93, W was aged 45.
• Virtually all of H’s wealth accrued long before the date of the marriage. H built his wealth as a consequence of a successful shoe manufacturing empire and later acquired various company and property interests in Morocco, Iraq and London.
• In 1982 H settled a Guernsey Trust as a vehicle for inheritance planning. That trust is now the ultimate owner of H’s company and property interests. H is not a beneficiary under the trust. H’s son is the protector of the trust.
• In 2011 H had transferred £950,000 to his son under the auspices of a loan; repayment of that sum remained outstanding.
• In 2012 H had incorporated a company (PR Ltd), of which 40% shares were allocated to W and the remainder to each of his daughters. H financed the company by transferring a total of c.£3.5m. At the final hearing date, W’s DLA stood at c.£2.6m; W asserted that a share of that sum was owed to the daughters as a consequence of their shareholding.
• W’s initial income needs budget was exorbitant, seeking £510,000 p.a. This was later revised and lowered.

Issues and findings

Value and liquidity of H’s properties in Morocco and Iraq

The court took account of two expert reports, but concluded that H is unable to extract funds from Iraq. Doing so in the foreseeable future would present significant but not ‘insurmountable’ difficulties. The court did not ignore the value of the Iraqi assets entirely.

Morocco is plainly different. The court concluded that the properties there would need to be sold to repay H’s loans of c.£2.8m, which would be required to meet both parties’ needs.

Value of W’s interest in PR Ltd (including monies owed to her by the company)

W’s argument was rejected, the court finding that the loans were her money and there was no obligation for a portion to be paid to the daughters. The court found (i) W’s loan account to total £2.17m owing (accounting for her share of the company’s deficit and monies used to meet the costs of these proceedings); and (ii) the business can generate an income of £75,000 p.a. plus a company car for W.

Recoverability of loans owed to H by the Guernsey Trust

The court was in no doubt that the loans to H were recoverable. Any suggestion that H’s son might object, in his role of protector of the Trust, was rejected. The money was required to meet needs and if properties needed to be sold, H was able to direct the marketing of any property owned by companies under the Trust and H’s son would not interfere.

Funds available to W through the Guernsey Trust

Upon final decree of divorce, W ceased to be a beneficiary under the Trust. Without a final divorce order, any order the court made in the FR proceedings is unenforceable. While the Trust Letter of Wishes requested c.17% was paid to W after H’s death, this was restricted to income, of which there had been virtually none. Accordingly, there was no realistic possibility of payments from the Trust to W.

Status of funds transferred to H’s son

The payment was made some 13 years ago, it had never been recalled, and H now conceived the sum as a gift. The prospect of repayment was slim and was ignored.

Outcome

The supposed value of the Iraqi assets was in dispute. H posited £15m. W asserted £28m. Excluding the Iraqi assets, there were total assets of c.£11m. As indicated above, the court determined that (i) regardless of the value ascribed, the value of the properties could not be realised; and (ii) equally their presence could not be ignored. However, this was not a £50m case as argued by W.

W’s total income need was assessed to be £150,000 p.a. £75,000 would be derived from her work at PR Ltd, the remainder would have to be accounted for in the court’s award. W’s needs were for a total capital award of £4m, made up of £2.3m housing and £1.7m for a Duxbury fund.

Including the sums owed to W by PR Ltd the award would leave her with total assets of £6.17m. That figure was over half of the realisable assets but fair as (i) the court could not ignore the Iraqi assets; (ii) it reflected the fact that W’s needs were greater than H (given his age and life expectancy); and (iii) accounted for the fact that H had given away significant assets to the Guernsey Trust and to his children.

Comment

This was a needs-based claim (principles in Juffali applied). The case is remarkable by virtue of the age difference between the parties. That difference sounded in various ways: (i) the majority of the assets were acquired pre-marriage; (ii) H had engaged in inheritance planning and given away various assets/made substantial gifts; and (iii) in the assessment of the parties’ short- and long-term needs.