HHJ Hess.

Facts

W (51) and H (49) cohabited in a flat in W’s sole name from late 2003 and married in 2004. W was a GP. H was an occasional painter and decorator but had not worked for many years and was entirely dependent on universal credit and PIP payments. The parties had two children aged 17 and 12. The parties separated in June/July 2011 when W discovered H had been using her credit cards to fund his gambling habit. W claimed that after the parties separated H told her that if she took responsibility for the debts on her credit cards (c.£34,000) he would make no financial claim against her in the future. H finally issued Form A in August 2020, nearly nine years following the parties’ separation.

Assets

The parties had no joint assets. The most significant asset was W’s flat with a net equity of c.£242,500. W also had savings and investments totalling c.£220,239 that had all been accrued since the parties’ separation in 2011. H only had savings of c.£230 and outstanding legal fees of c.£27,650.

H had no pensions, but W had a private pension and two NHS pensions with a total CE value of c.£595,215. Only around £81,535 of W’s pensions accrued during the marriage, equal to some 74.6% of the Aviva Pension value. During the course of the proceedings there had been difficulty extracting information from NHS pensions which meant that by the time of the PTR a PODE report had not been prepared, despite having been directed. Whilst this left the court with inadequate information on the value of W’s pension, DJ Davies at the PTR decided the ‘best course was to move forward to the final hearing without a PODE report because it was depressingly clear that the information would not be available in time and it would not be proportionate to adjourn the final hearing for a third time’; [20].

Proposals

H argued he should be entitled to 50% of the net equity in W’s flat; a lump sum of £110,120, a lump sum of £94,247 representing half of W’s annual gross income, and a 45% pension sharing order in relation to all three of W’s pensions. H justified this position on the basis that he needed to purchase a mortgage free two-bedroom flat costing between c.£450,000 and c.£550,000 but did not explain how the lump sum requested would fund the purchase of a property of that value where H had no mortgage capacity.

W proposed that she should pay H a lump sum of £35,000 and there should be a pension sharing order of 75% over her private pension.

Held

Lack of PODE Report

HHJ Hess held that it was correct to have proceeded to the final hearing without a PODE report to avoid another adjournment but caveated this by stating that ‘this should not be taken as any kind of general endorsement of the proposition that PODE reports are unnecessary’; [20].

Contributions

It was noted that H’s contributions both during the marriage and post-separation had been ‘negligible’ in both financial and practical terms, and that this did not amount to discrimination against him as H had been neither the earner nor the homemaker; [42].

Delay

It was held that, applying Wyatt v Vince, this was a case where there had been such significant delay that H’s award might be reduced or eliminated; [47]. Additionally, it was also ‘a factor that the husband both told the wife that he would not make any claims against her if she took responsibility for the family debts of £34,000 and then did not actually make a claim for a decade’; [47].

Outcome

HHJ Hess was:

‘not minded to attach very much weight to the husband’s needs – as explained by Lord Wilson [in Wyatt v Vince] they are not relationship-generated needs. I have not been persuaded that the husband’s needs should not be met in the same way as they have been since 2011 – in rented accommodation with the rent met by state benefits.’

It was held that W’s proposal was ‘at or slightly above what the husband could receive on a sharing basis’; [49]. Overall, W was ordered to pay H £35,000 within 28 days and a PSO of 100% over W’s Aviva pension was ordered (a DC fund with a CE of £109,347) as, while this was greater than the amount of all pensions attributable to the marriage, ‘the NHS 1995 Pension [which was also accrued during the marriage] may have risen in value’; [50].

At [46]:

‘In relation to pensions it has been said, for example by me in W v H [2010] EWFC B63, that in relation to a long marriage case involving needs, whether the pensions were accrued during the marriage or not would make little difference to the distribution of pensions; but the facts of this case are, in my view, very different from the sort of facts I was envisaging in W v H . Here we have a marriage in the short to medium category with the vast majority of the pensions being accrued in the post-separation period.’