HHJ Booth. Appeal from a final order in a modest asset case, in which the court was tasked with balancing the needs of a party suffering from a serious disability and the needs of the primary carer of the children of the family.

Facts

At the time of judgment, W was 38 and H was 44. They began cohabiting in 2007 when H moved into W’s property, and a lump sum was paid to W’s former husband. The parties were married in 2014. There were two children of the marriage, aged 11 and 8.

H suffered an accident at home which rendered him tetraplegic. An insurance policy paid out the sum of £103,000 which allowed the parties to jointly purchase the final home they lived in together. The property required substantial adaptations to meet H’s needs which were funded by charitable donations and fundraising from friends and family. The parties lived at H’s mother’s home whilst the adaptations were being made to the family home. During this period, the parties’ relationship broke down. W and the children moved to rented accommodation whilst H remained in the family home supported by carers.

At first instance

Deputy District Judge Davis, at first instance, made a number of findings relevant to the appeal. The net value of the family home was £206,000. W had debts of £27,000 whilst H had debts of £18,000. The judge found that W’s earned income, supplemented by Universal Credit, would likely remain at the same level for the foreseeable future. H’s entitlement to Universal Credit and PIP wouldn’t change. Neither could obtain a mortgage until their debts were paid off; however the parties’ income did not match their outgoings.

The judge found that there was not enough money for each party to buy outright were the family home to be sold, and that subsequently each would receive a sum which would heavily impact their right to benefit income. The judge found that the current size of the family home was not necessary for H and that whilst it would be preferable for H to stay in the family home, this wasn’t the same as being necessary. Finally, the judge found that ‘although in principle there should be an equal division, the husband’s housing needs will require more assets than the wife’s’.

A deferred order for sale was made, with the net proceeds of sale divided 55% to H and 45% to W. The judge delayed the order for sale for a period of two years, the justification being that this would give the parties an opportunity to clear their debts, identify suitable properties, make adaptations where necessary, and to obtain mortgages.

H appealed seeking to have the order set aside and replaced with an order that allowed him to remain in the adapted house.

Relevant law

The judge on appeal, HHJ Booth, reminded himself of the relevant rules governing appeals (being FPR 30.3 and 30.12). For the purposes of this appeal, the relevant part of the test was whether the decision of the lower court was wrong, it not being alleged that there was any serious procedural or other irregularity.

The judge set out the requirement of the judge in the lower court to apply s 25; that the welfare while a minor of both children was the court’s first consideration, and that encouragement is given to achieve a clean break between the parties as soon as is just and reasonable. The judge also reminded himself of the principles derived from Miller v Miller; McFarlane v McFarlane [2006] UKHL 24. He quoted Moor J in Butler v Butler [2023] EWHC 2453 (Fam) on the difficulties posed by cases involving limited assets, those in which it is not possible to meet both parties’ needs.

The court on appeal had been referred to a number of cases in which the issue of serious disability had played a part, namely Wagstaff v Wagstaff [1992] 1 FLR 333, C v C (Financial Provision: Personal Damages) [1995] 2 FLR 171, and Mansfield v Mansfield [2012] 1 FLR 117. The judge noted that a consistent point is made throughout those cases, namely that the disability where it is of the nature of tetraplegia, as here, will invariably take precedence over the welfare needs of the children where it is not possible to adequately meet both.

Findings on appeal

The judge hearing the case at first instance needed to grapple with the needs of H consequent upon his tetraplegia, including his need to be cared for in an adapted home, being balanced with the needs of the children.

The justification given for the deferred sale, being that the parties would be able to pay off their debts and secure a mortgage in those two years, was unrealistic. Neither party had an income which allowed them to meet their outgoings, let alone pay off their debts over the course of the next two years. As such, neither would be in a position to buy in two years’ time, even with lump sums from the sale of the family home. This was a fatal flaw in the judge’s reasoning. In attempting to meet both parties’ needs, the judge at first instance had met neither’s.

On the facts of the case, the disability of H was so significant, such that the need for him to be in a home where his needs could be adequately met ‘is the need that dominates’. Once this was established, it followed that this required him to have the use of the adapted house. This was despite that property being the only capital asset available to the family, and the consequence being that his occupation would be to the exclusion of W and the children, and that their future was likely to be in rented accommodation.

Held

The family home should be transferred into H’s sole name on a Mesher basis, the triggers being for sale when H no longer needs use of the family home, either when he passes away, or his condition deteriorates such that he requires some form of institutional care on a permanent basis.

W being kept from her share for many years to come was justification in and of itself for her having an enhanced share of the net proceeds on sale. H should have a sum large enough to meet his debts and have some entitlement to make his own provision for his children on his death or on a sale. A fair distribution is 75% to W and 25% to H upon deferred sale.

The appeal was allowed, the order for sale set aside, and an order made transferring the house to H subject to the beneficial holding and trigger events set out above.

Commentary

Practitioners will be aware, as is often pointed out by judges hearing any such case, that modest asset cases pose invariably hard questions. Where there are insufficient assets to meet the needs of both parties, in the words of HHJ Booth ‘The court must make a choice’. It should avoid falling into the error of trying to meet the needs of both parties where this is impossible, and therefore inevitably meeting neither’s. Whilst of course each case will be fact sensitive, where it is not possible to meet the needs of a seriously disabled party and the needs of the children, the needs generated by that serious disability might well take precedence over the welfare needs of the children.