James Ewins KC, sitting as a Deputy High Court Judge. A difficult case where the respondent husband failed to attend any hearing or make any disclosure. All the court could do was draw inferences to prevent a ‘cheat’s charter’ in the face of W’s quasi-sharing claim. W asserted H had significant assets but had no fixed or agreed values. The final hearing proceeded in H’s absence, with no evidence from H.

Summary

Applicant wife 50, living in London. Respondent husband 52, living in Indonesia. Two children: 19-year-old first-year undergraduate living with W in the holidays, and 16-year-old, who is in Year 12 and living with W. W sought 50% of four properties totalling £13.9m, albeit she said H’s total assets were >£112m. W was surviving on benefits and had since May 2016. W and the two sons had lived in a private rented two-bed flat. He remained in the family home in Indonesia, where he had access to multiple properties and amenities such as swimming pools, gyms, saunas, steam rooms and tennis courts.

W had made separate MPS, LSPO and freezing injunction applications. MPS had been granted and was unpaid (£154,395.80). LSPO had been granted and was unpaid (£72,774). Worldwide freezing inunctions had been granted.

The judge had previously refused to recognise the Indonesian divorce; see Monisha Mahtani v Vivek Hariram Mahtani [2023] EWHC 2988 after the refusal directions to a final hearing were made. Due to H’s complete non-engagement the FDR was dispensed with.

At the final hearing, H had not filed or served a Form E despite repeated orders; he had not provided any information or disclosure. He had not communicated with W, her legal representatives, or the court. The court was satisfied that H had been served with all the relevant orders, including the hearing notice. The hearing, therefore, progressed in H's absence.

Adverse inferences

The judge carefully considered what, if any, adverse inferences he could reasonably and properly draw concerning H’s financial resources; [34]–[37]. The judge referred himself to J v J [1955] P 215, Moher v Moher [2019] EWCA Civ 1482, Ditchfield v Ditchfield [2023] EWHC 2303, and Hersman v De Verchere [2024] EWHC 905, [34]–[37].

The following cases were identified by counsel for the W; A v A [2012] All ER (D) 108 (Dec), per Bodey J; XO v YO & Anor [2022] EWFC 114, per HHJ Hess; CC v LC [2023] EWFC 52, per HHJ Wildblood KC; and Dickason v Dickason [2024] EWFC 285, per HHJ Sweeney; [38].

At [44], the judge again reminded himself of Lady Hale’s words at [85] in Prest v Petrodel Resources Ltd [2013] UKSC 34, [2013] 2 AC 415, [2013] 2 FLR 732, quoted by Moylan J in Moher v Moher:

‘the court is entitled to draw such inferences as can properly be drawn from all the available material, including what has been disclosed, judicial experience of what is likely to be being concealed and the inherent probabilities, in deciding what the facts are.’

Contributions were briefly considered at [51.3], and the learned judge neatly put Standish v Standish into context:

‘51.3 no arguments that the applicant’s share should be less than half by dint of the source of the funds used to acquire the properties have been advanced by the respondent; and, in any event, any such arguments would be weak in the light of first category of matrimonialised assets as defined by Wilson LJ in K v L [2011] EWCA Civ 550 as reformulated by Moylan LJ in Standish v Standish [2024] EWCA Civ 567:

“Over time matrimonial property of such value has been acquired as to diminish the significance of the initial contribution by one spouse of non-matrimonial property” (per Wilson LJ in K v L at para 18(a))

“The percentage of the parties’ assets (or of an asset), which were or which might be said to comprise or reflect the product of non-marital endeavour, is not sufficiently significant to justify an evidential investigation and/or an other than equal division of the wealth” (per Moylan LJ in Standish at para 163).”

At [50], the judge sets out what he must consider, based on the case law:

‘50. Before acceding to that attractive submission, however, I remind myself that I am not required “to make a specific determination either as to a figure or a bracket” and that there are cases in which “the court is ‘unable to quantify the extent of his undisclosed resources’”. I am permitted to draw inferences “to the degree of specificity or generality deemed fit” and, where appropriate, not to alight of a specific figure, but instead “to infer that the resources are sufficient or are such that the proposed award does represent a fair outcome”. In doing so, I “must be astute to ensure that the non-discloser does not obtain a better outcome than that which would have been ordered if they had complied with their disclosure obligations”.’

The judge found at [54] that:

• the respondent’s property resources were as set out at [47] (being c.£27.8m, net of 10% notional realisation costs) – excluding business assets; and
• the balance of his other, including corporate, financial resources were sufficient that the highest award sought by the applicant represents an outcome that is not unfair to the respondent.

W’s financial needs were then considered, at [55]–[64], and found to be a lump sum of £7.4m, using the higher whole-life Capitalise figure, or £6.8m on the lower 20-year term calculation; [64].

When considering the extension of freezing injunctions after judgment, the judge relied on Akhmedova v Akhmedov and Others [2020] EWHC 2257. Specifically, Knowles J who stated at [18] that:

‘the question I ought to ask myself is whether there is a real risk that the judgments and orders in the wife’s favour will go unsatisfied if the relief is not granted.’

Litigation conduct

H’s conduct was considered to merit the strongest censure in costs. H had not only ignored every order, but he had also told the Indonesian court that he did not know the applicant's whereabouts or have any means of contacting her; [78].

Interest on arrears of maintenance

Interest does not accrue on periodical payment orders made in the family court; [79]–[84]. Upon review of the contents of the orders, and not the headers, the judge was satisfied that the case had been transferred to the Family Court sitting at the Royal Courts of Justice. There was no order transferring it to the High Court, Family Division. The judge relied on GH v H [2024] EWHC 2869, where Simon Colton KC, sitting as a Deputy High Court Judge, stated as follows, at [19]–[20]:

‘As Mostyn J held in TW & TM (Minors) [2015] EWHC 3054 (Fam), [2016] 2 FLR 1386 at [17]–[19], by reason of s.74(5B) of the County Courts Act 1984 (the “1984 Act”) and art. 2(4) of the County Courts (Interest on Judgment Debts) Order 1991 (the “1991 Order”), interest does not accrue on orders for periodical payments made in the Family Court. The County Courts (Interest on Judgment Debts) (Amendment) Order 2019 has subsequently amended art. 2 of the 1991 Order, but not in a manner which affects the conclusion of Mostyn J …”

Held

1. The respondent’s property resources are as set out at [47] (being c.£27.8m, net of 10% notional realisation costs) – excluding business assets.
2. The applicant had a fair sharing claim to 50% of the value of the respondent’s property interests, which were assessed at £13.9m. Since this sum is higher than her needs claim of £6.8–7.4m, the judge assessed her award in that sum.
3. It was necessary and proportionate for the worldwide freezing order to remain in force pending payment in full of the lump sum awarded to the applicant.
4. The freezing injunction would continue as there was a real risk that the final order would go unsatisfied without such an order.
5. The respondent’s litigation conduct merits the strongest censure in terms of costs, and costs of the proceedings were awarded on the indemnity basis.
6. No interest on the outstanding periodical payments as the order was made by the Family Court sitting at the Royal Courts of Justice and there was no power to award interest in periodical payments.

For practitioners

Practitioners, when faced with a case being transferred to the Royal Courts of Justice, where there are unpaid periodical payments, we must ask – does this need to be transferred to the High Court, Family Division?