HHJ Hess considers when a property becomes the family home and therefore matrimonialised, and whether, once matrimonialised, it can become un-matrimonialised, and makes use of the Galbraith Tables while doing some heavy lifting to get the case to a practical, workable conclusion without further delay.

Background

W 52, working, H 75 retired. Fifteen years seamless cohabitation and marriage. There are two children of the family, the eldest 16 and the youngest tragically died in 2018 aged 8. Main assets, four properties in H's sole name. Both parties carrying not insignificant debt, majority legal fees. Asset/debt table at [23].

Family homes and matrimonialisation

There were four properties in H's name, all of which the parties had used. HHJ Hess analysed the evidence before him and concluded that there were three family homes in this case, and they were used consecutively rather than simultaneously; [33]–[34]:

• Years 1–6: the Property in a European Country.
• Years 6–14: the country cottage.
• Year 15: Flat 2 London Apartment.
• Flat 1 London Apartment was not the family home at any time.

HHJ acknowledges that if the properties were divided according to the sharing principle, W would receive more than he had assessed her needs to be; [27]–[30].

W's case was that (i) once a property has been a family home, even for a short period, it immediately becomes matrimonial property and remains so even if the time is brief and the parties move to another family home, relying on Lord Nicholls in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24; (ii) Roberts J in WX v HX (Treatment of Matrimonial and Non-Matrimonial Property) [2021] EWFC 14 established there can be more than one family home, and that principle should also apply to sequential family homes; and (iii) there is no case law to suggest that it is not possible to have multiple family homes or that that property, once matrimonialised, can then be un-matrimonialised; [35]. W argued that all four properties should be shared 50/50, based on the sharing principle.

H's case was that (i) the court should search for fairness and reflect on the s 25 factors to do so; (ii) the courts should steer away from developing a new concept of 'un-matrimonialisation'; (iii) the court can, in the right circumstances, depart from an equal division of matrimonial property, of even a family home, where fairness requires it as per Standish v Standish [2024] EWCA Civ 567, FB v PS [2015] EWHC 297 and S v AG (Financial Remedy: Lottery Prize) [2011] EWHC 2637; [36].

Held

1. Courts should steer away from developing a concept of ‘un-matrimonialisation’; [36]⁠(i).
2. In assessing the question of matrimonialisation of a property by its occupation as a family home, the court should seek fairness and reflect on all the 25 factors involved in doing that; [36]⁠(ii).
3. It was well established that in the right circumstances, a court could depart from an equal division of matrimonial property, even a family home, where fairness required it; [36]⁠(iii).

In the circumstances of this case, a departure from equality was justified; [37].

Outcome

1. H to pay W £17,500 (six months’ rent) 42 days after the date of the order and W to vacate Flat 1 simultaneously. Interest in default.
2. H to pay W a lump sum of £657,000, 42 days after W moving out of Flat 1. Interest in default.
3. Clean break, taking effect when lump sum paid.

Costs

HHJ Hess gave the parties a strong steer on costs; [38]⁠(iv). He reminded the parties that W's costs had been taken into account and that the lump sum had been increased accordingly.

This case demonstrates the costs risks caused by legal costs liabilities. At [25]⁠(viii), the judge observed that the debts would need to be paid for W to get a mortgage and increased the lump sum H needed to pay W to meet her needs. As most of the debt was legal fees, H was paying W's legal fees. This is the 'Costs Paradox' where one party needs additional funds to clear the legal fee debt in order to get a mortgage to meet housing needs, so the lump sum is increased, which goes against the 'no order' principle.

Heavy lifting

In this judgment, HHJ Hess put in place an order that worked in real life. Not all judges would do the heavy lifting HHJ Hess did to get there. By example:

1. At [21] HHJ Hess used the Galbraith Tables in At A Glance to estimate the CE value of one of H's pensions where the annual income was known, but no CE value was produced. By using the Galbraith Tables, the judge avoided further delay and expense.
2. At [25]⁠(v) HHJ Hess describes the property particulars put forward as the poles of the argument and openly notes, ‘it is possible to take judicial notice of the fact (manifest from a short period of Google searching) that there are a range of two-bedroom flats available in a range of places in London in the price space between the poles’. **By using judicial notice in this way, the judge avoided further delay and expense.
3. At [25]⁠(vii), the judge used his knowledge and experience to assess and assign W an MRC of £75,000 based on her income of £37,174 pa.
4. The parties' living arrangements were the cause of much friction and would slow/block the sale of Flat 1, which was to provide the lump sum payment. In [26], HHJ Hess provided a solution, namely an additional payment from H to W equivalent to six months’ rent.