WD v MH [2022] EWFC 16218 November 2022

Published: 24/12/2022 09:00


Mr Recorder Rhys Taylor. H was 66 and W 61. Short marriage.

Within judicial separation proceedings (although neither party could confirm why such were preferred to divorce), the parties agreed (the 2008 Agreement), inter alia, the following:

  • H to pay W a lump sum of £45,000
  • FMH in H’s sole name, W to purchase FMH from H for £245,000 (to cover mortgage and a share of the equity), failing which H would purchase her share of the equity for £30,000.

There was some evidence that the parties had sought subsequently to implement or satisfy the 2008 Agreement: H paid W £45,000 and structured an offer to fund the outstanding lump sum. Payment of the second lump sum, however, never transpired, and for want of a decree – the judicial separation proceedings never concluding and being eventually dismissed – the 2008 Agreement never became fully enforceable.

H then brought divorce and financial remedy proceedings, inviting the court to uphold the 2008 Agreement by making an order that he pay W £30,000. W sought ‘to implement the 2008 agreement in such a way as to give her the opportunity to have the former matrimonial home transferred to her or, in the alternative sold, and the proceeds divided equally and H’s equity to be shared between the parties. This would [have] amount[ed] to an order in the region of about £250,000–£300,000’ by virtue of the increase in the house value since 2008.

The delay (some of which was justified by W’s ill-health), short duration of the marriage and the 2008 Agreement were determinative to the court’s conclusion that, notwithstanding the parties’ prospective retirement and H potentially having pension capital with significant value, it would not be helpful to delve further into H’s resources. The court found, ‘beyond any possible sharing claim relating to the FMH, the shortness of the marriage and lack of asset pooling/mingling means that W’s claims to H’s other assets [were] limited to needs’. But the parties’ needs were met: W lived in a council home but had acquired a Right-to-Buy and was in receipt of Universal Credit; H had a modest income and continued to reside in the FMH. The court heard no compelling needs-based evidence. In deciding the matter, the judge sought to give effect to the 2008 Agreement (per Radmacher v Granatino [2010] UKSC 42) but also to recognise the increase in value of the FMH: 10.71% of the value of the property in 2008 (£30,000) was now £56,227. The judge rounded the figure to £60,000.

Open offer

Ten months before the final hearing H made an open offer worth £70,000 (£30,000 plus £10,000 to account for inflation and a further £30,000 to avoid the cost of litigation). Considering the open offer, the reasons that costs were accrued, and the financial impact of a cost order on W, the judge made a costs order against W for £5,000 to be set off against her lump sum.

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