DJ Worthley. Final hearing in a financial relief claim brought by W 8 years after the parties separated.

Introduction

W (48) and H (52) separated in February 2015 after 22 years of marriage and four children together. The final divorce order was pronounced in December 2015. H and the children remained in the FMH, although three of the children are now independent adults. W remarried in 2016 and has a son from that relationship, she resides with her new husband in a property of which she is the joint equitable owner.

The matter was a single-issue one regarding the division of the FMH. It had an agreed value of £341,667 (equity of £272,466) and in these proceedings had agreed it was to be sold after the parties’ youngest son had completed his GCSEs. H argued for a division of 70:30 in his favour, W said 50:50 (but moved to 55:45 in H’s favour during counsel’s submissions). The basis of H’s move away from equal division was to reflect his post-separation payments towards the mortgage on the property. There was no mortgage/bank statement evidence which showed the value of this contribution.

Jurisdiction

Section 28(3) of the MCA 1973 prohibits the court from entertaining a financial relief claim by W (due to her remarriage) unless she had prayed for a financial order in her petition for divorce. This was addressed at [14] to [21] of the judgment.

DJ Worthley therefore needed sight of the petition for divorce to determine jurisdiction. This proved to be difficult. The case reference available to DJ Worthley was the financial remedies 16-digit number, separate to the 10-digit divorce number which was needed to locate the divorce petition. This system of two separate numbers meant that court staff had to track down the divorce petition, with DJ Worthley noting the ‘administrative and sometimes investigatory burden’ increasingly placed upon the District Bench. Once found, the petition showed W had prayed for financial relief and the court had jurisdiction to hear her claim.

Law and application

At [33]–[39], DJ Worthley considered the applicable legal framework. The unusual feature in this case was that W brought the claim 8 years after the parties separated. An application for financial remedies may be brought at any time after the separation, but DJ Worthley cited Vince v Wyatt [2015] UKSC 14 where it was noted that there is a ‘prominent strain of public policy hostile to forensic delay’ and that a respondent may have arranged their affairs with the belief that no claim would be made such that it would ‘not be reasonable for him to put into reverse’. Further, in Briers v Briers [2017] EWCA Civ 15 it was found that where needs were provided for, the judge’s exercise was ‘to discount the wife’s share ... because of her responsibility for delay’.

At [40]–[55], DJ Worthley applied the law to this case. H had put his case too highly in suggesting that all mortgage repayments were paid against capital rather than interest on the FMH. As such, DJ Worthley calculated (‘making a rough “guestimate”’) a more appropriate sum that he thought H had paid off the mortgage post-separation.

DJ Worthley then considered each of the section 25 factors. He noted that W’s needs were likely to be met by the house she currently resided in. Further, if she were to divorce her current husband, as asserted, then her housing need would weigh heavily in those proceedings as the carer of their young child.

Decision

The FMH would be sold and divided equally, once H’s post-separation mortgage payments (as calculated by DJ Worthley and not H) had been top sliced from the equity. This leads to a 65.5:34.5 split in H’s favour. The computation of mortgage repayments may well be flawed, however, the departure from equality would still be justified due to W’s delay. H had arranged his finances with the belief that no claim would be made against him and was the primary carer for their son.

Witness bundle reminder

Whilst the parties agreed to proceed on submissions only in this case, DJ Worthley reminded practitioners at [13] that the courts should be provided with bundles for the witness stand (whether physical or via a neutral laptop). He observed that this practice often does not happen, even when there is judicial direction on the matter, as there had been here.