Recorder Taylor. Final hearing in a financial remedy application which concerned issues of non-disclosure and allegations of asset concealment in different countries. The matter also involved foreign litigation which appeared to undermine the existing proceedings in this jurisdiction. The parties married in 1999 and have two adult children and one aged 16. The family structure was a traditional one with H being the breadwinner and W the homemaker. W was a 100% shareholder and director in a company, but the court found that she was merely the nominee for H who, always controlled the purse strings and business ventures. H had been hugely successful over the course of the parties’ marriage, and the parties enjoyed a high standard of living.

There were a number of factual issues concerning the level of H’s indebtedness, H’s interest in property and company assets which were disposed of, the value of W’s chattels, and non-disclosure by the husband, which went to the computation exercise; [82]–[96]. H’s non-disclosure was found to be woeful. His spending habits post-separation denoted a very high standard of living with frequent purchases of high-end clothing, gifts and personal grooming appointments for both him and the children of his friends. Against this background, H failed to meet court-ordered obligations towards W to pay maintenance pending suit (MPS) or to keep up with mortgage payments on some of their properties. The judge found H to have lied and deceived so much in all other respects that he was left with the distinct impression that the husband had not told the whole truth. It was determined that the consequences of H’s poor disclosure would be borne by H and not by W. Adverse inferences were drawn as H failed to provide full and frank disclosure.

An another interesting issue to be determined was whether the litigation conducted in the foreign court was engineered by H, and is in fact fraudulent litigation, resulting in a void foreign judgment not entitled to recognition by the English Court pursuant to the Judgments (Reciprocal Enforcement) Act 1933; [83], [111]–[118]. Notwithstanding the points made by W’s counsel, the judge was not prepared to say that the foreign judgment should not be recognised on the grounds that it was obtained by fraud as there were too many imponderables at play, despite his suspicions; [119]. Having made factual determinations as to computation, the asset base was £1,837,680.

The parties’ positions

W’s open position did not take into account the ‘unknown unknowns’ of the assets that H could have been concealing from the court and which the judge could not quantify. In sum, she sought that land jointly owned with the parties’ son be transferred to H. The son agreed to the transfer of the land. Also, she proposed the sale of all the English properties with the first £140,000 being set aside for school fees. She would have sole conduct of the sale and retain the balance to meet her housing needs for a four-bedroomed house in London, and a capitalised income fund (she pitched her outgoings at £8,184 pcm). All properties in Country X would be transferred to H upon the basis that he would meet any tax arising from the same. 100% pension sharing order, clean break, H to satisfy the MPS arrears (£48,500) and outstanding cost orders (£29,270). No order for costs save for outstanding costs to date. In terms of capital division, this worked out to be c.67/33 division in favour of W. With the pension share, this equated to a 71/29 division in favour of W.

H sought the sale of all assets and equal division of the net proceeds of sale, save for the plot of land owned by W and their son, which he proposed that W retained on account for the MPS arrears and unpaid cost orders. Clean break with no order for costs. He made no offer for a pension share. This amounted to a 62/28 division of the current capital in H’s favour, and 67/33 division in H’s favour if pensions were to be accepted. If the adverse inferences in respect of sale proceeds of an apartment in Country Y were excluded, then the husband’s current capital proposal was very close to 50/50.

Decision

The judge determined that the land W jointly owned with the son be transferred to H to spare W the stress and the cost of dealing with any of H’s further dishonest mischief in this regard. The parties’ son would need to be joined and to provide an undertaking on the face of the order, which will give effect to this outcome. H would retain the two plots in Country X. The transfer of the plot of land and two plots in Country X would be conditional upon the parties obtaining a joint CGT report at H’s expense, and H placing in escrow any tax which W or their son will be required to pay consequent the transfer. It was ordered that all the English properties are sold with W having sole conduct of sale. The net proceeds from the sale were to be retained entirely by W to enable her to meet her housing needs, which the judge determined was for a three-bedroom property. The proceeds would also meet the school fund and establish a capitalised income fund (though she would still be significantly short). H would be responsible for paying the mortgages pending sale and indemnify W in respect of the same. The judge was very aware of the likely enforcement difficulties W might encounter, but there were no other assets within the jurisdiction he was able to work with it.

W’s reasonable outgoings were assessed at £5,250 pcm, with a shortfall of £1,730 pcm with a gross salary of £25,000. It was found that W would never be able to adjust without undue hardship and a term of 20 years would take her to retirement age. A Capitalise calculation for 20 years would result in a capital requirement of £617,615. To address W’s income needs, the judge awarded W a 100% pension sharing order, which could be used towards her Duxbury fund from the date she is entitled to draw on her pension until her state retirement date. 50% would be for retirement proper’ and 50% would be money that could be liquidated in support of income needs pending retirement. Overall, this amounted to a 71/29 division in favour of W. This division did not account for potential undisclosed assets that H might have been hiding. The judge acknowledged the possibility of ‘unknown unknowns’ in respect of assets that H might have been concealing, which could not be quantified. This approach was necessitated due to H’s dishonesty.

W was awarded her costs on an indemnity basis due to H’s reprehensible litigation conduct and to avoid those costs coming out of money which should be used to meet her needs. Applying a broad-brush approach, it was determined that W should recover 90% of incurred costs, namely £54,202; [249]–[260]. Finally, W requested that the parties’ names in the heading of the judgment be published and not anonymised. The judge was not prepared to determine this issue without full argument from the parties as it raised important questions of transparency and privacy. W was given until May 16 to confirm if she wished to pursue her application, and if so, directions would be set down for the matter to be properly ventilated.