OO v QQ [2025] EWFC 310 (B)

Judgment date: 21 May 2025

https://caselaw.nationalarchives.gov.uk/ewfc/b/2025/310

HHJ Hyde KC. Final hearing in financial remedy proceedings. The husband had failed to engage with most of the process. The case was determined on a needs basis given the wife’s terminal cancer diagnosis.

Background

The parties separated in March 2024, after 16 years of cohabitation and some 13 years of marriage; [6]. There were two minor children of the marriage, who spent equal time with their parents; [22]. W lived in a rental property; [19].

W was diagnosed with stage II breast cancer, which was later found to have spread to her lungs and brain; [3]. Evidence obtained from a consultant clinical oncologist noted that prognosis is difficult to predict but that on average it might be 12 to 18 months after spread to the brain; [5].

H was represented at the first appointment at which the judge made an order for maintenance pending suit; [8]. By February 2025, H had dis-instructed his solicitors and became a litigant in person; [9]. He did not engage with the process thenceforth, failing to attend the FDR hearing, the pre-trial review and the final hearing; [10].

Resources

Property

Two properties (the family home in joint names and a flat in the husband’s name) were both deemed to be matrimonial assets; [26].

Investments

W had investments totalling £254,361. The majority derived from a Family Settlement; [29(ii)(a)].

In 2021, by deed of assignment, W’s brother gave her £325,000 on the basis that she would repay the amount into the trust (thereby releasing her brother from a previous obligation of his to pay that amount to the trust); [29(ii)(c)]. The judge noted that there did not appear to be a loan agreement between the trustees and W’s brother for his initial obligation, and that therefore there was none between the trustees and W; [29(ii)(d)].

W declared that the express purpose of the loan was to facilitate payment of school fees. She said that in extremis she had used the funds to meet legal fees and rental payments but showed that she had assured the trustees that she would replenish funds used on expenses other than school fees; [29(ii)(e)].

The judge was not satisfied that the trust would enforce repayment of the full £325,000, of sums spent on school fees, or of sums not spent on school fees; [29(ii)(g)] and [29(ii)(h)]. However, he was satisfied that the intended purpose of the £325,000 was for the payment of school fees, and that W intended to use it as such; [29(ii)(h)]. He therefore concluded that the remaining £231,214 was not a resource available to W and that the presentation on the ES2 should be adopted; [29(ii)(h)].

Trusts

W had no trust interests other than her beneficial interest in the Family Settlement.

H was a beneficiary under two discretionary trusts settled by his parents; [33]. H declared in his Form E that he had received no payments from the trusts; [33(iii)]. W contested this; [33(iv)]. H’s lack of updating disclosure and responses to questions left the judge concluding that he did not have sufficient evidence either to find or infer that the trusts were a capital resource immediately available to H; [33(ix)].

Business Interests

H worked for his parents’ business. He had no contract of employment but historically received a salary and a ‘discretionary bonus’; [34(v)]. H asserted in his MPS statement that this was performance related, and that he would not receive a bonus for the tax year ending 2025; [34(v)] and [34(vii)]. Letters from H’s father supported the contention that H would not receive the bonus but separately indicated that H’s bonuses were not strictly performance related; [34(vii)] and [34(viii)].

W suggested that the business was both a source of income and an inheritance; [34]. Both H and his parents suggested that H might change roles in the business or leave, but W doubted suggestions that H’s remuneration would be reduced; [34(xi)].

H declared liability loans from the business, providing loan agreements in support; [34(xiii)]. W asserted that the loans were an attempt to redesignate H’s income; [34(xiv)].

The judge was satisfied that it was likely that the sums set out in the available P60s would continue; [34(xv)]. He noted that there was no evidence supporting performance-related bonuses and concluded that the loans were inauthentic; [34(xv)(c)] and [34(xv)(d)]. The judge was unable to rely on the parents’ letters and identified the P60s as the only objective evidence available to indicate H’s remuneration from the business; [34(xv)(e)] and [34(xv)(f)].

However, the judge could not infer that H would receive more from the business and/or his parents; [34(xvi)]. Ultimately, the judge concluded that H was in a substantially stronger financial position than W; [36].

Liabilities

W’s liabilities, excluding the £325,000 to the trust discussed above, were accepted; [38]. Notably, H’s purported liability under a personal loan from his parents was ignored due to the absence of detail provided by H or his parents, and due to the loan’s idiosyncrasies; [40].

Income

H’s income was considered under ‘business interests’.

W’s net income was £1,673 per month through working for H’s parents’ business; [46]. The judge accepted that this was the maximum she could earn due to her health condition, and that W would not be able to sustain the level of work; [47]. She received medical insurance paid for by H’s parents’ business, but H would not confirm that this would continue, a stance the judge found to be causing unnecessary stress for W; [50].

Needs

The judge concluded that there should be parity of accommodation and that both parties could purchase suitable homes for between £400,000–£500,000; [54].

The judge accepted W’s representation of her global needs but reduced the additional costs that she anticipated after purchasing a property; [58]. Her long-term needs would rise from £6,105 per month to £7,105 per month (upon purchase of a property) which should be index-linked; [56], [58] and [83].

Given H’s lack of updating evidence, the judge considered his Form E. Three significant figures were extracted from the total expenditure, and the judge highlighted more which could be pared back; [59] and [60].

The judge concluded that the parties should enjoy similar lifestyles, but that W’s expenditure would be significantly greater on the basis that:

1. H had multiple perks from the business; [61(1)];
2. W had medical costs and prospective need for domestic help; [61(ii)] and [61(iii)]; and
3. W was responsible for most of the children’s day-to-day expenses; [61(iv)].

Legal principles

Regarding non-disclosure and adverse inferences, the judge considered Moher v Moher [2019] EWCA Civ 812 at [86]–[91] and Crowther v Crowther [2021] EWFC 88 at [58]; [66]. He also noted Peel J’s consideration of facts which could enable a court to conclude that the wider family may assist one of the spouses in M v M [2020] EWFC 41 at [65]–[68]; [67].

Distribution

The judge concluded that this was a needs case; [69].

W was allocated a fund of £450,000 to purchase a property; [72]. H was allocated the same sum, accounting for his mortgage capacity of £350,000; [72]. The family home should be sold, and W should receive the equity whilst H should keep the flat; [74]. As H failed to give evidence about CGT figures, the judge assumed that there was none, but that if any liability arose it would be met from H’s resources and not from the proceeds of sale; [74].

W received £501,198 and H received £101,424 from a total of £602,622; [75].

W had moved to rented accommodation partly because she had lost her driving licence and needed to be nearer the children’s schools. She should while in rented nevertheless meet the expenses associated with the family home; [80] and H the mortgage; [80]. During the period between the sale of the FMH and the purchase of a new property, W should use the £50,000 surplus to her housing needs; [82]. The judge assumed that if H experiences difficulty in the short-term, his parents or their business would assist him; [80].

H should pay periodical payments during the parties’ joint lives. This should be £6,750 per month between judgment and sale of FMH, reducing to £6,300 per month following sale and reducing again to £4,450 per month following the earliest of the end of the rental term or purchase of an alternative property; [80].

H should have a charge of 25% of the sale proceeds of the FMH, to be secured on any new property W provides and to be triggered on W’s death; [90]. The charge should form security for the periodical payments; [91(i)]. If W’s health insurance is discontinued by H’s family business, H’s 25% charge should be reduced £1 for every £1 W pays in securing replacement insurance and/or payment of medical expenses that would have been covered; [91(ii)].

W to conduct sale of FMH; [92].

This judgment has not been certified as citeable pursuant to the Practice Note (Citation of Cases: Restrictions and Rules) [2001] 1 WLR 1001.