[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE]
	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> S, Re (Financial Provision - Application of Standish and the issue of costs) [2024] EWFC 436 (B) (15 October 2024) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2024/436.html Cite as: [2024] EWFC 436 (B)

[New search] [Contents list] [Printable PDF version] [Help]

IN THE FAMILY COURT AT ROMFORD

		2a Oaklands Avenue Romford
		15 October 2024

JUDGE GOODCHILD:

1. This is the matter of S. Over the past two days I have heard evidence from both parties, and now give this ex tempore judgment to conclude their financial arrangements.
2. To the parties, I will endeavour to try and use "Applicant" and "Respondent" as I go through my judgment. I make no promises in that regard and may slip into "Husband" and "Wife" occasionally. I mean no disrespect to either of you, recognising that you have long since been separated and divorced.
3. The Applicant is a 51 year old woman who currently resides in High Road. She is a company director of CS Limited and owns 100% of the shares. It is the main vehicle for her day to day living and income. She has also disclosed directorships in Design Limited, Holdings Limited and E Limited, all dormant companies. There was one other company, Property Limited, which I will comment upon in a more general context in a moment.
4. The Respondent is a 53 year old man who resides in what was the former matrimonial home. He is a builder by trade, and operates through a company called J. I understand it is a company that was his father's, but which he now operates, albeit in a supervisory capacity only, having limited capacity now to undertake the more physical, labouring job role.
5. The couple have two children, A who is now 22 years old. He has been through university, recently graduated, and is now employed albeit modestly. B is 20 years old and is currently at university. Both children reside with the Applicant.
6. It appears to be agreed that the relationship between the children and the Respondent is not particularly good. It is the Applicant's case that they have little, if anything to do with the Respondent. It is the Respondent's case that he does have some interaction, some exchanges I believe by text, albeit even on his own case it is relatively nominal.
7. The couple stated cohabiting in 1998. They married in 2000. I believe 7 October 2000, had children and continued their married life together with each operating their respective companies.
8. Originally the Applicant's family company was in the name of C Properties Limited and owned by her mother and father. Over time, and sadly with the loss of in particular her father, and the implementation of a trust onto which I will come later, the "family" business has in effect now come into the hands of the Applicant.
9. The couple accumulated properties. I said that in a very general context, because what happens with them all, and the relevant details, are the main substance of my judgment. I will leave further comment on that for now.
10. It is agreed that the circumstances in or around the passing of the Applicant's father, towards the end of 2017, brought about the end of their marriage. There was a dispute about whether actual separation occurred when the Applicant moved out in June 2019 or earlier, but, having heard the oral evidence I understand that it is now accepted that the relationship ended much earlier, in or around her father's death in November 2017. This is a marriage therefore of some 17 years.
11. The Applicant issued her petition on 20 September 2019 and Decree Nisi was granted on 21 June 2021. I understand Decree Absolute was pronounced on 14 December 2022. The Applicant issued Form A on 17 August 2020.
12. It would be fair to say that this mater has taken a considerable amount of time to get to this final hearing. There have been somewhat standard FDA and FDR, but then a failed final hearing and I believe a further three PTRs and various attempts at directions to get these proceedings to a conclusion. I am also told that the parties agreed to partake in arbitration, albeit that did not ultimately take place. I suspect that the combination of Court delays, multiple hearings, the proposed arbitration and Covid all factored into why we now find ourselves some five years post-petition.
13. In terms of the assets of the relationship, at the start of the hearing I was handed an ES2, albeit subject still to amendment. I will now go through each of the assets by way of quick summary, before noting the issues to be considered.
14. The first, and arguably the easiest of the assets is the former matrimonial home where the Respondent is living. It has a gross value in excess of a million pounds, a mortgage of just shy of £200,000 and with relevant costs etc., taken into account, it has an agreed equity of £916,476. It is a joint asset.
15. The second property is High Road. It was a property that was transferred into the name of the Applicant, I believe – again, I am happy to be corrected – in February 2019. It has a value of between £725,000 and £760,000 with the mortgage, costs, etc., bringing the equity somewhere in the region of £520,000 to £550,000. Later I will explain my views on its valuation for the purpose of division of the assets. It is the property in which the Applicant and the children live.
16. In no particular order, I now turn to the other properties that form part of the portfolio relevant to these proceedings. The first of these is Rental Property 1. It has an agreed net equity of £46,214. It is a rental property in the Applicant's name.
17. Secondly, the factory which has an agreed valuation of £315,750 net. It is a commercial property in the Applicant's name, which is sublet to TY and is alleged to be generating £1,500 per month rental, although I understand there is a question as to whether that is actually being paid.
18. Thirdly, Rental Property 2 which is a property in the Applicant's name. It has been sold during the course of these proceedings and produced a net sum of £142,285.
19. Fourthly, Rental Property 3 which is a property in the Applicant's name that has been sold in April 2022, during these proceedings, producing a net sum of £87,050.10.
20. Finally, what all have called the "Spanish Property". It is agreed it was legally the Applicant's father's and used by the Applicant's parents. Further that the Applicant inherited it upon her father's passing in November 2017. I am told that it now has an agreed net value of £123,739.
21. For completeness, I will make very brief reference to three further properties and one company-related property, to conclude the position on the capital assets. The three properties are R, a shop in N and B. I refer to them only because they have either been raised in the parties' section 25 statements, referenced in examination and cross-examination and/or as best I am able to say at least on the Respondent's part, they form part of his reasoning behind the orders he seeks from the Court.
22. R was sold in 2013 at £164,700 but I have no details of the equity it produced. Equally, I am told that the shop in N used as a business premises historically and probably before the purchase of W i.e., pre-2005, was also apparently sold. Again, I have absolutely no detail and the scantest of reference is made to them in the Respondent's section 25 statement.
23. B is a property that even the Respondent says, to quote his statement: "I assume it was sold". It was possibly a business premises, probably very historic, pre-W" and probably therefore at least pre-2005. Again, I have absolutely no information or any figures associated with the same.
24. There is otherwise one final property to refer to, that of 31W. this is a commercial unit owned by C Property Limited. As noted earlier, C was originally the Applicant's father's business, until it came to be operated 50:50 with the Applicant. It is agreed that on the Applicant's father's passing a trust deed was put in place, incorporating both C and 31W. The Applicant retains a 50% share, with the remaining 50% transferring to the trust. The relevant deed records the beneficiaries as the Applicant and the two children. Taken at face value that would translate to each receiving a one-sixth share.
25. The reason for my hesitancy is that somewhat ironically it is both parties' position that, despite what the trust actually records, it has always been - backed up for example the accountant's letter in the bundle – the intention of the Applicant's father that his 50% share went to the children on his passing. The parties agreed that despite the terms of the trust deed, they believe the Applicant has her 50% share, and A and B have the remaining 50% share, split equally between them.
26. Technically and mathematically that appears to be inaccurate. It impacts perhaps to some extent on the valuation of C for the purposes of these proceedings. The value attributed by the Court appointed joint expert to C is £456,891 on a 100% basis. If you strictly apply the trust deed that translates, on the Applicant's total share, to a value of £304,594, ignoring any tax implications. But, for the reasons I will go onto in a minute, any lack of certainty on figure does not particularly detract from my ultimate determination.
27. As per its accounts C otherwise owns property valued at £332,500 net £310,172 and shareholder funds of £26,196, which on a two-thirds split to the Applicant amounts to £17,464. I can but assume that I am being asked to take that into account separately for the purposes of assessing the Applicant's income, although that has not been made clear to me. I have taken it at face value. Again, not a great deal turns on it.
28. W has been valued by the expert at £600,000. In her ES2 the Applicant attributes a simple 50% share. Once CGT, costs, and the accounts are taken into account she says I should attribute the sum of £268,980 to the Applicant. Although I do not consider that entirely accurate, again I do not consider it particularly material either way.
29. The Respondent adopts a different approach, seeking to persuade me that C should be treated as, in effect, 100% the Applicant's and fully available to her as a resource. Taking the valuation at £600,000 and applying CGT etc., he initially attributed the sum of £532,301 to the Applicant. However, Mr Ward, Counsel for the Respondent, has since clarified that the Respondent agrees to the net figure in the experts' report i.e., £456,891.
30. To be frank, I have probably spent too much time already on all the respective properties when on my determination it may not be necessary for me to do so. I move on.
31. Over and above the properties, we have the two companies of the parties. There is no formal valuation in respect of either.
32. If I turn first to the Applicant and to CS Limited, this is a vehicle used purely as support to an investment portfolio, made up principally of rent and which is used to pay her income. As per her P60 that amounts to somewhere in the region of £70,000 to £71,000 per year. That is all evidenced, and does not appear to be disputed.
33. If I now turn to the Respondent, and to J by complete contrast, quite frankly, I have zip. No accounts, no information, nothing. I will go on to comment further on that in due course. It is unclear to me what value, if anything, I am to attribute to it.
34. Otherwise in terms of assets, the parties have some nominal bank accounts, jewellery, cars, life insurance etc., which – and I mean no disrespect to either on this – are not going to overtly trouble me for the purposes of this judgment.
35. I turn now to income. It appears to be agreed that the Applicant's income is in the noted sum of around £70,000 from CS Limited. In addition she receives rental sums from C and from the properties already noted, of somewhere in the region of net £40,000.
36. On the Respondent's part it appears to be accepted that he draws – I use that word in the loosest possible sense - £750 per week, or roughly £39,000 net a year income from J. It is unclear to me whether that is by way of dividend, drawings, PAYE or otherwise. It seems though that that figure is conceded. Although she asks me to note her concern about the level and nature of the Respondent's income, and has otherwise sought to suggest that the Respondent likely takes cash in hand jobs, and/or uses monies from friends, colleagues and a cousin, she can provide limited, if any, evidence to that effect. I take that position at face value, and for the purposes of this judgment, accept that as his income.
37. Pensions are very modest. Neither party is arguing conduct. Age, duration and health factors are all otherwise uncontroversial. Counsel for both agree that the main focus for this Court's determination is on the respective contributions to the matrimonial pot, and what it amounts to, when at face value they may well total in the region of £2m.
38. To reach my judgment I must first determine which of the assets are to be considered matrimonial, and which fall outside as non-matrimonial.
39. The Applicant adopts a simple approach, there has been no mixing. The properties, in particular High Road, Rental Property 1, the factory, the Spanish Property, let alone Rental Property 3, Rental Property 2 and (to the extent she even needs to, quite frankly), R the shop in N and B are all non-matrimonial.
40. She refers me to the guidance given in Standish v Standish [2024] EWCA Civ 567. She submits that I must look to the source of all of those assets. It is the source that, Counsel reminds me, is critical. She submits that the source here is inheritance. In short, the relevant properties have either been directly inherited – e.g., the Spanish Property – or they have been in effect inherited and/or arisen from her and her father's joint enterprise through C and through the investment portfolio that they had. That portfolio has always been kept entirely separate and distinct from any matrimonial assets. Fundamentally they all arose from her father's endeavour, and she has just kept it going. It was and remains part and parcel of their joint venture, from which she now takes benefit as a result of her father's passing. That benefit has, in reality, all been post-separation.
41. Ms Littlewood for the Applicant submits that it is fundamentally wrong of the Respondent to approach this matter as one of some sort of sharing. To suggest that, in effect, by virtue of their marriage the Respondent should therefore be entitled to a share of that portfolio. Such an approach is misguided. All the assets bar the former matrimonial home are, in effect, either the Applicant's father's and/or the company's, and in any event inherited.
42. Any works that have formed the basis of evidence in dispute between the parties are in fact works that were undertaken commercially, distinctly, and as an arms' length transaction. There has never been a direct contribution by the Respondent to any purchase – something, I might add, the Respondent accepts. There has been no mixing of any investment or monies produced, through rental monies or otherwise. The rental monies were, for example, all kept in distinct and separate accounts, held jointly with her father and in pursuance of their joint venture, to continue to purchase properties.
43. Mr Ward for the Respondent submits that the assets are mixed in the true sense of the word, and matrimonial. There was a joint venture, but it was one of their own joint endeavour as a married couple, and no that of the Applicant and her father. There has been what he describes as an equal contribution to that venture, to their investment, through the actions and conduct of the Respondent, even without any direct contribution from him to, for example, the purchase of the properties themselves.
44. In closings, Mr Ward refers me to – and I treat this as an umbrella principle to be applied against all the relevant properties – works that were undertaken by the Respondent to all the properties he says at cost, and with no profit to the Respondent or his company. He submits that I can and should conclude as a consequence that the Respondent's contribution "must be significant". He questions otherwise how the values of the respective properties could have increased, other than by virtue of the works undertaken? As a matter of principle, to be applied to all the properties, I should therefore accept the Respondent's evidence of his contribution as part of their joint venture and, accordingly, reflect that in sharing those assets on a joint and matrimonial basis.
45. That fundamental distinction in approach feeds into, and explains, the parties' quite opposed open positions to resolve the matter.
46. In her first offer made as long go as 2021, the Applicant proposed that the former matrimonial home be transferred to the Respondent, she would take the entirety of the investment portfolio, and there would otherwise be a clean break.
47. In compliance with my direction at the PTR, for the parties to clearly outline in detail their up to date open positions, she confirmed by substantive letter dated 26 September 2024 the following: the former matrimonial home be sold and the net proceeds divided equally between the parties, the Respondent to retain the contents, save for any personal belongings. Any joint accounts, dormant or otherwise, be closed. There to be no order as to costs, clean break otherwise. It came with the caveat that such order was open for acceptance up to the point of trial, but in the event that the trial proceeds, as it has done, she flags the issue of costs.
48. Historically the Respondent's position has been less clear, but in attempted compliance with my PTR direction his solicitors by email dated 30 September 2024 made the following very brief bullet point offer: the former matrimonial home be transferred to the Respondent with the Applicant having discharged the mortgage, the Respondent to receive – I am assuming in addition - £2m or properties to the value of this amount from the Applicant; the Applicant to refrain from using the surname S and, should the company wish to do so, then the Applicant must agree to pay royalties to him assessed in the sum of £3,000 per month; otherwise clean break as to capital, income etc., with no order as to costs.
49. One small point of clarification is an entirely understandable acknowledgment by Mr Ward in closings, that with regard to the "new" issues of any royalties or association with the name S, this Court is not seized of the ability to deal with those aspects, and he accepts that his client does not now invite me to make any such orders.
50. I must at the outset confirm that whilst I understand the logic, nature and reasoning behind the Applicant's offer, duly detailed and explained in accordance with my direction, I do not understand at all the Respondent's position. At face value it appears to exceed 100% of the matrimonial assets. It is fundamentally flawed and entirely unachievable.
51. Regardless I must firstly turn to my attention to whether the assets of this marriage are to be considered matrimonial or non-matrimonial as that is quite so obviously the key area in dispute. In short, I accept the Applicant's evidence in full. I do not accept, and wholly reject, the Respondent's evidence, such as it is. The assets are, in the main, non-matrimonial.
52. By way of brief summary of the evidence that leads me to that conclusion I confirm the following. In giving her answers I found the Applicant to be careful, meticulous, straightforward, honest and up front with regard to the same. She readily answered all questions appropriately and in my view more than adequately. In fact, she has gone above and beyond what is required of her in attempting to substantiate her position, and perhaps more importantly challenge the Respondent's evidence. For example, the lengths she has gone to in her section 25 statement to try and identify and evidence the sums paid, often very historic, on the varying properties in the portfolio are to be commended. She was otherwise concessionary where necessary. I did not find her to be the slightest bit evasive. and dealt with cross-examination more than adequately.
53. That could not be in more stark contrast to the Respondent. His section 25 statement was vague beyond belief, contained no details. no documents. no clarity on any figures, no quantum. no details of any of the works. no details of alleged refurbishment. no dates. His evidence amounted to, literally, bold assertions. Quite frankly, there was nothing factually put forward that was of any value to me in reaching this judgment.
54. In giving evidence, I found him to be evasive in his responses, often failing to answer the question at all. I was not clear whether, generously, that was just because he did not understand the question, or more likely that he was just trying to avoid giving difficult answers to Ms Littlewood's entirely appropriate cross-examination.
55. His section 25 statement was vague, as I have indicated, but it pales by comparison to the answers he gave to the three, I believe, sets of replies and schedules of deficiencies given during the course of these proceedings. I note, by way of summary only, the number of questions that he failed to answer. When he did answer, he did not actually answer the question he was asked. and even on the very few occasions that he did in fact answer a question he was asked, he said he attached documents, which he never did. I assess his approach as being one of wholescale absence of adequate disclosure, lacking detail and any, let alone understandable, explanation. It is almost as if he was seeking to persuade the court of his position "just because he says so".
56. It is sadly - and I hope not a reflection of the legal advice that he received throughout these proceedings - indicative of someone that has entirely misunderstood the court's approach to evidence, of how a court reaches a view on the factual matters to be determined. Of how one presents a case for the purposes of asking the court to make orders in accordance with your proposals, assuming of course that this court understood the open position adopted, which here I do not.
57. That headline feeds into each and every one of the properties in dispute. I will not repeat myself each time, but ask the parties to bear in mind my conclusions on the evidence overall when I now go on to make clear my position on each of the properties.
58. High Road. It is a property that has been developed by the Applicant alone, but is arguably incomplete. I take the net figure as £554,377. I accept at face value an email from the expert of 11 September 2024, in response to the Respondent's request for clarity. The expert records a gross value of £760,000 not the £725,000 proposed in the ES2. I cannot pretend I do not have some hesitation in that regard. The Applicant was clear orally - which, for the reasons I have already given, I accept - that there is a planning notice to desist with any further works. I also accept her evidence that there may be further works required if the notice is lifted, such as moving doors and windows. I have no idea of the costs of the same. My problem is the vagueness of that proposition. I balance that against an Applicant, to her credit, that quite clearly has and can afford to continue to undertake works to the property, as she has done so substantively since she moved in. Who knows whether any additional works may or may not impact on the capital position, but I have to use something. And the expert's assessment is what I have. £554k is therefore the net figure I use.
59. As to whether that £554k is matrimonial or not, quite frankly, I did not understand the Respondent's position on it. He seemed to adopt an argument, noted in his s.25 statement and pursued orally, that the purchase and development of this property was part of some sort of underhand tactic on the Applicant's part while planning to leave him. Curiously his evidence would therefore appear to be that the Applicant kept it entirely separate, in effect. secret from him as part of that plan. Interestingly he makes no allegation at all of having used matrimonial resources to purchase or develop it. I do not then understand why he says. I believe, its matrimonial? I think he may be suggesting that just because the couple were married at the time of purchase he is entitled to some sort of share in it? He is not. It was entirely sourced, paid for and developed by the Applicant, as per her evidence, without recourse to the Respondent and or to the matrimonial pot.
60. Rental Property 1 is a property purchased in 2015, pre-separation. It is rented out by the Applicant at £8.400 per year. properly declared and evidenced in the usual way. According to her works were undertaken to refurbish it, but these were done at arms' length by third parties. The only work done by the Respondent was to install a smoke alarm. The Applicant conceded that. And to her great credit she went to considerable lengths to identify evidence in support of that. The Respondent certainly did not help me otherwise. On assessing his evidence, such as it is, he does not appear though to suggest that he was in any way engaged in the purchase or refurbishment of the property. Nothing in his evidence supports any sort of contribution to the property. I can but take it, and in the absence of anything to the contrary. that it is in fact now agreed that it is a non-matrimonial asset.
61. The factory is used by the Applicant to produce the uniforms that she runs her business from. Its pre-separation purchase. according to her evidence - which. for the reasons I have already given, I find persuasive - was by virtue of a £70.000 inheritance from the paternal grandmother. together with the sale of stock and the business of C. She acknowledges that the Respondent was in part engaged with some refurbishment of it, and concedes she paid sums amounting to some £16,500. Again to her credit, I commend her efforts to locate and identity relevant information on that. I am persuaded by it.
62. In stark contrast the Respondent by section 25 and orally merely states, "I did refurbishment and building works at cost, with no profit." What works? When? How much? The quantum? Value? In fact any figures at all? Anything to help me what I am to take from that statement? In short. zero. It is non-matrimonial.
63. The Spanish property. I am not now clear. at the end of this trial, what the Respondent is actually saying about this property. It now appears to be accepted that it has always been the Applicant's parents, and that she then inherited the property. In his section 25 statement he suggests it was "shared". I am not clear where, and on what basis, that conclusion comes from. Otherwise. his evidence more generally is two-fold: number 1, that he apparently did a "full refurb". I find myself in the same position as before, being completely absent any idea what that means, let alone the value to be attributed; number 2, he apparently did some sort of negotiation with a neighbour about some sort of water leak from their property, for which there was a £9.000 insurance sum paid. I do not know what he says about the £9,000. other than he seems to suggest it was paid to the Applicant, and then, what? That he should be entitled to it? On what basis I do not know. At the time the property was owned by the Applicant's father. If there was anything, I speculate, some sort of project management fee perhaps that he's looking to charge That is a real stretch on my part. but that would be a fee to be paid by the father not the Applicant? Frankly, I just do not understand his case on this. For the reasons I have given, and what is fairly obvious otherwise, I wholly accept the Applicant's evidence on this. It is non-matrimonial.
64. Rental Property 3. This was purchased during the relationship, but it was purchased by father before being inherited by the Applicant. It ultimately sold in April 2022, producing £87.000 equity. The Applicant asks me to bear in mind that by that stage. Separated, in a home that she was trying to refurbish while supporting the kids, paying for them through school and university. let alone taking account of all the other costs associated with the same, she had accumulated debts. She has detailed and scheduled those debts. She says she had 'no choice' but to use that money to pay off those debts, which were in effect family debts when she was getting no support from the Respondent. Curiously, there is absolutely nothing in the Respondent's section 25 statement about this, and he otherwise takes no point on the money. He makes no challenge to her position at all.
65. In the circumstances, I accept the Applicant's evidence on this. To the extent that it is necessary for me to do so, bearing in mind the money has long since gone, I note it but record it takes me no further either way in my determination.
66. Rental Property 3. This again has been sold for £142.285. It was used and mortgaged in November 2018 to pay for works, I am told, at 162. The Respondent's company was involved to some extent in those works, that were generally undertaken by third parties. The Applicant outlines in detail in her section 25 statement - again to her credit – the nature and extent of those payments, which she submits were equally made at arm's length. They amounted to £5.500 only and were nominal in nature. Her evidence contains a schedule detailing the same.
67. In response. the Respondent merely says - and I quote: "It was fully refurbished at cost, with no profit." Again, there is no evidence nor any details at all. It is not my intention to repeat again the comments I have made earlier, other than to say, for the reasons already given, I entirely accept the Applicant's position. The monies have gone. To the extent it is necessary for me to do so, any monies produced take me no further either way in my determination.
68. R. I refer to this somewhat hesitantly. To be honest I am not entirely sure why I need to trouble myself about this Property, when it was historically sold and I have no information at all about it, let alone what equity if any was produced. The Applicant acknowledges that she did pay the Respondent for works to refurbish the same on exactly the same basis as she has otherwise evidenced with other properties, but indicates that due to the lapse of time the monies have long gone into other properties and there is no way of now identifying any relevant paperwork.
69. The Respondent says in his statement, "I refurbished it and built a small extension at cost with no profit." Again, there is nothing else. I have no idea what, if anything, I am to take into account on it. With due respect, we are talking about a property that is long since been sold. I understand from both that it was likely flipped within the year, and I speculate any monies long since overtaken by other properties. They are not something now that I need be troubled with. I disregard them.
70. I find myself repeating those comments when moving on to the shop at N and B Road. The position is the same. What if anything I am supposed to identify from them, and take into account in this determination I know not. I can but disregard them entirely.
71. Let us turn, therefore, to C, C seems to be the position on which there is – well, I thought there was the most contentious of issues between the parties. Somewhat ironically. at the conclusion of the oral evidence and having heard closings there appears now to be much more agreement than I thought. It now appears to be accepted that C and the development, I should say, of 31W - was a 'dad-to-dad' matter. Broadly it is agreed that the dads got together, agreed a way forward probably orally - sadly they did not write anything down, but it was 2005, and even if it existed it has probably long gone. They agreed to develop the flats, that the Applicant's dad would front the initial £775,000 to buy the property and that the Respondent's dad would match that in terms of refurbishment cost to the flats. Whatever they sold them for, they would then split the profit 50-50. Frankly, it appears that is exactly what did happen.
72. Again, to her credit, the Applicant has identified and evidenced from old accounts an approximate profit of £205,000. Orally the Respondent appears to dispute that, although again l do not entirely follow why. It is the Applicant's case that she and her father then used that profit to invest in what then ultimately became their property portfolio. What the Respondent's dad did with his share, who knows. The dispute that has come about from the oral evidence is in answer to Ms Littlewood's cross examination. He suggests that a 'new' figure of £42,000 is apparently still owed for the refurbishment. Such a figure is completely undocumented unreferenced anywhere, being entirely absent from his section 25. His answer very much left this judge with the impression of something that just "popped into one's head".
73. Nevertheless, he argues that £42,000 relates to works undertaken to the shop, and is still owed. During questioning the Applicant acknowledged that they had to remove a staircase at the property to complete the refurbishment to the ground floor shop, and that that sum may relate to having to reinstate the stairs on the later development of the upstairs flats, although she could not be sure bearing in mind the lack of documents or explanation. Regardless she says it does not alter the agreed position between the dads when it comes to the monies produced from the development.
74. Absent any documents, and on my best guess from the somewhat evasive and unclear oral evidence he gave, this 42k seems to have some significance to the Respondent. I think - and this is my best guess from what he tells me - the 42k was not a cost that his father incurred as part of the refurbishment, but rather something 'extra' that his father was entitled to be paid for, in getting the shop back up and running. It was in addition to the monies fronted for the redevelopment of the flats? If I am right, that would translate into some sort of old debt from, presumably, 2005, and presumably owed by the Applicant's dad to the Respondent's dad?
75. I fully take on board Ms Littlewood's point that in circumstances where this is being raised orally, it would have greatly assisted the Respondent, if he was serious about pursuing this line of argument, to have a) explained it somewhere for me, section 25 or otherwise: b) at least contained the figure somewhere in any document before this court: c) spoken to his dad about it, possibly even got a witness statement from him: d) and in any event, over and above all of that, explained why an apparent £42,000 debt that is now unenforceable and 19 years old somehow justifies some sort of interest in C in 31W? I assume the debt, and I guess the generation of the profit from the refurbishment, provides some sort of foundation, building block if you like, to the Respondent tracing funds into the Applicant's investment portfolio from which he now seeks to claim an interest based or an alleged marital joint endeavour?
76. If that is the Respondent's case. I wholly reject it. I wholly reject the notion that there is any such sum outstanding in respect C, 31W. I entirely accept the Applicants case, that her father and the Respondent's received their respective profit share, as part and part of their commercial arrangement, and were thereafter free to do with that profit whatever they chose. As I have noted, I have no idea what the Respondent's father, or come to that what the Respondent may have done with any such profit. For all I know, they could have gone off and used it to generate their own property portfolio.
77. That leaves me in a position, I hope - no doubt somebody will go back and cross-check and make sure for me - of having outlined my conclusions in respect of all the relevant properties before me in evidence. In summary, the only asset that I regard as purely matrimonial for the purposes of this judgment is accordingly the former matrimonial home.
78. I must then turn to the division of assets, and the extent to which that division is impacted to any extent by the parties' needs.
79. It is accepted by both parties that they need a home. It appears to be accepted, despite the Respondent's attempts to suggest that because he - and I quote -"I like it where I am and see no reason why I should move", that the FMH is going to be sold, substantive monies produced and divided to meet their needs for a home.
80. The Applicant confirms. however. that she is content to stay in High Road, that that property meets her needs and those needs of the children. On her case, she submits that the Respondent needs a two-bed. She has put in property particulars for 2 beds between £275.000 and £385.000.
81. In contrast the Respondent has put in property particulars for four-beds at £650 to £750,000. Those particulars appear to acknowledge, even if his oral evidence otherwise does not accept it, that the FMH actually far exceeds his needs. He indicated a need for a four bed property as opposed to a two-bed flat, on the basis that, as per his section 25 statement, "I am entitled to this property", as he has, "lost everything". That is not the basis upon which I make my assessment. He suggests he needs a larger property for his nieces to stay. Orally, he references the possibility of running his business from an office at home. He also made reference to the hope of being able to rekindle and improve upon the relationship he has with his children.
82. From this court's perspective, I can only make a determination on the here and now, on what I assess as the needs for each. I accept the Applicant's position, that High Road meets and to the extent they are relevant the children's needs. Were it not for High Road, her needs would in all likelihood be the same as the Respondent's. I determine the Respondent's needs, as a minimum, to be a two-bed of, on the particulars I have, a value in the region of £385.000.
83. Having determined their capital needs, I turn next to the issue of income. That issue also touches on the relevant issues of health and mortgage capacity.
84. My position on the Applicant is straightforward. As I have already made clear l accept her evidence entirely. I accept her stated income, and to the extent it is necessary for me to so when she intends staying at High Road her ability to sustain the mortgage out of income. She has no health concerns.
85. I have already noted, on the Respondent's part, I accept his income of £750 per week, giving rise to a salary of 39k odd net a year. I note that roughly accords with his mortgage application, on which he submitted an income of40k. He says that that income cannot and will not increase or change. He seeks orally to make much of his inability to continue as a builder, but accepts he is already taking a 'back seat' more office based role. I acknowledge the fact of this heart attack, and that he is now on medication, albeit that does not appear to be directly impacting on his ability to earn. I readily accept, from anybody's perspective, that at 50 years old, he may not be as able to do the building works themselves, but. quite frankly, it makes little material difference in terms of finances. He does not have any additional income. or any additional capacity. I accept that at face value, and absent anything persuasive to the contrary. Neither party, I must add, seek maintenance. Neither party appears now to be suggesting that their respective income position will change.
86. I do though need to briefly comment on the evidence presented on this, due to its opaqueness to say the least. The Respondent's Form E records his income as nil. His non-committal evasive answer to why he did this was astounding. That is in circumstances where he was suggesting to the court that he lacked any significant debt, had apparently continued to run his business throughout, had employed Owen, had lived at the FMH meeting the mortgage and all bills and where otherwise he was not seeking maintenance or contribution from the Applicant. That paints a very persuasive picture of someone, with a share of the substantial monies that will be produced from the FMH, combined with any mortgage capacity, whose capital needs will be met and supported on his income.
87. I should also add on that point that he relies now on a mortgage capacity of £189,000, as per his evidence to the court dated 9 September 2024. This is in stark comparison to the mortgage capacity he put in in March 2021, in or around the time of his Form E, of £330,000. On simple maths that might suggest an income of at least, say £94.000 odd, who knows. But having otherwise noted my conclusions I leave it there.
88. In being asked to determine the fair division of matrimonial assets where there are substantial non-matrimonial assets, I am reminded of the need for me to cross-check the position against each of the parties' assessed needs, and against all the section 25 criteria so for completeness do so now.
89. As I have already noted, the other assets of this relationship, of each party, are relatively nominal. Pensions are very modest. Conduct is not pursued. Neither have troubling debt that they have not otherwise been able to service since separation. Their respective ages and the duration of this relatively long marriage are not particularly influential either way in this determination. None give me cause to deviate from a position of equality. Both these parties are in a position to continue working, to continue to meet their day to day needs. The capital produced from the marital pot will in my view be more than sufficient, and their income otherwise sustainable.
90. My order will therefore be that the FMH is sold forthwith, the net monies are produced, they are split 50-50, translating to a pot of some £458,238 each. I cross-check that sum back against the assessed need, particularly for the Respondent, in circumstances where there are substantial non-matrimonial assets.
91. I note that the assessed need for capital in the region of £385,000 is more than adequately met by this division, and that he has mortgage capacity at £189k in any event. As already noted, there are no, I am told, significant debts or other matters to be taken into account. Accordingly, my order is, some might say, despite the complication of this judgment, quite straightforward.
92. I am going to put a marker down right now, anticipating the fun that is likely to arise now on the issue of costs, that issue having already been touched on in submissions.
93. This court comes from the starting point of being sympathetic to the Applicant's position on costs, noting the very generous, in this court's view, open offer to transfer the FMH to the Respondent back in 2021, when the Applicant's costs were a mere £29.000.
94. I also put the marker down, to assist counsel in any submissions that either wish to make on costs, that the principles accepted and founding this order are directly in line with the position adopted by the Applicant, pretty much throughout. That is in stark comparison to the Respondent. Need I note again that his offer, which is unbelievably late, on 30 September, does not make sense, contains provisions that I cannot order and as I repeat exceeds the assets of the marriage available to me to distribute. It is, quite frankly, nonsensical.

[There followed a discussion on costs]

95. I am wholly unattracted by an assessment process. I regard pessimistically the ability of these two parties to agree the position by way of detailed assessment. I am equally very conscious of the proportionality of that whole process, particularly when combined with the further delays that will be incurred while these parties await a final conclusion to these proceedings, a conclusion I regard these parties as so desperately needing in the circumstances that they are in.
96. Both agree it is within my discretion to summarily assess costs. I note Mr Ward's suggestion that this case is complicated, the court lacks the necessary detail and does not have all the information at its fingertips to properly assess the full extent and nature of the costs which would he better left to detailed assessment. However, in my view those points are outweighed by the factors I have raised. I regard the information that I have as being sufficient to determine the issue of costs on a summary basis.
97. An N260 is commonly the basis upon which I summarily assess cases, including matrimonial, at the conclusion of proceedings. I also have before me information sufficient to be satisfied of the party's ability to pay and the impact, the financial impact, of the same by any costs order I make.
98. Mr Ward rightly points out that a court should always be concerned that a costs order, by the back door has the potential to undermine the net effect of a court order. That is particularly in circumstances where there is a challenge presented to the court on what each of the parties' respective needs are, and how the court should determine the meeting of those needs. Naturally, a court should not find itself in a position where having assessed needs a costs order serves only to take a party below that assessment.
99. That is not the case here. Respectfully, I remind all that I have determined the need of the Respondent as one of a two-bed. with mortgage capacity, and despite my concerns otherwise over his evidence of an income position more than capable of meeting his day to day needs.
100. This case is, in my view. one that that falls squarely in line with the authorities as one in which a costs order should be made. I take particular heed of FPR 28. In short, when you make an offer. you make an open offer post-FDR that is more generous than the order ultimately made by the Court, you are at risk. When you are then warned of that risk, the position is fully outlined in correspondence, repeated and re-emphasised in the lead-up to trial, and yet still you adopt a position the flies in the face of the evidence, that risk crystallises.
101. It leads me to the conclusion that it is both appropriate and proportionate to make a costs order, and to proceed by way of assessment now, on a summary basis. As accepted by Ms Littlewood. that may mean that I approach matters more conservatively as a consequence, adopting a broad-brush approach to the costs as presented.
102. Acknowledging the direction of travel on costs, Mr Ward then reminds me where the Applicant has already paid those costs, to make a substantive costs award would amount to a windfall to her. Respectfully, on my determination, the only asset that this court has been troubled by is the FMH. The division of the FMH on a long marriage, for all the other section 25 reasons, giving rise to a 50-50 share. Even with this costs order, needs are still met. That those costs have in the main been paid is not in my view a reason not to make a substantive award.
103. Accordingly, and taking a conservative broad-brush view on her costs, the Applicant is awarded 75% of her post-FDR costs. I believe that calculates at £109,500. For the sake of completeness I record my cross-checking against assets and needs. The Respondent can still meet his assessed need for a two-bed of his choice. taking account of his mortgage capacity, but it will be a matter for him how he chooses to cut his cloth accordingly in light of this costs award.
This transcript has been approved by the Judge