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	English and Welsh Courts - Miscellaneous
You are here: BAILII >> Databases >> English and Welsh Courts - Miscellaneous >> GH v IH [2025] EWCC 15 (10 April 2025) URL: https://www.bailii.org/ew/cases/Misc/2025/CC15.html Cite as: [2025] EWCC 15

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In the Bristol Financial Remedies Court sitting at Swindon

		10th April 2025

1. This is the final hearing in the parties' cross applications for enforcement and variation of a joint lives periodical payments order made by District Judge Ralton in 2012 as part of a final financial remedies order.
2. Applications were also made in respect of the B flat and the property known as A house. I dealt with these applications as preliminary issues.
3. The husband was ordered to pay £2000 per month on a joint lives' basis. This was to be linked to the retail price index and equates to £2739 in today's money. The wife seeks to enforce RPI arrears she says are £16,881.82 over a six-year period together with interest of an additional £2650.36. She accepts she will need permission to enforce arrears that accumulated more than a year before she issued her application.
4. The wife says that while the husband has paid £2000 per month, he has not paid the additional RPI sums. The husband says that there are no arrears because by paying for the wife's private health insurance, her dental plan, and her mobile phone he has paid more than the sums ordered.
5. The husband counter applies for any arrears to be remitted and for any further liability for spousal maintenance to cease.
6. The wife is represented by Ellen Saunders of counsel and the husband by Siân Smith. I am grateful to both counsel for their comprehensive position statements and submissions.
7. Background
8. The parties were married in 1993 for 17 years in what was a 23-year relationship. The former matrimonial home is said by the wife to be a £3 million farmhouse. She kept horses and dogs, and the parties enjoyed a good standard of living. However, the reality is that the husband was heavily leveraged, and the parties had considerable matrimonial liabilities. The total value of the mortgages was almost £3 million in addition to which the husband had business debts of circa £1 million. It is probably fair to say that the parties were living beyond their means despite appearances.
9. Unsurprisingly, the judgment of District Judge Ralton is not available after all this time. It is notable that the learned district judge chose to make a joint lives order rather than adopt the more recent thinking of ordering sufficient spousal maintenance to facilitate the wife transitioning to financial independence without undue hardship or at least pending receipt of pension income following the pension sharing orders that were also made.
10. In the absence of the transcript, it is not possible to hypothesise the district judge's reasons. However, notwithstanding the absence of any medical evidence in the bundle today it is accepted that the wife has health and mobility problems making it more problematic for her to find work. She is a blue badge holder. In those circumstances it is perhaps unsurprising that the judge did not order a more limited term.
11. Broadly speaking it seems that the aim of the 2012 order was to achieve a 50-50 share of the net capital generated during the marriage once extensive debt had been cleared.
12. Unfortunately, there have been serious issues in relation to the implementation of the 2012 order. The pension sharing orders have yet to be implemented. This has largely benefited the wife given the increase in value of the various pensions since 2012. There is however a risk that this may be offset by the wife's potential CGT liability in respect of one of the properties. There is however no expert evidence about this.
13. I have already made a preliminary judgment in relation to the sale of B flat which has been delayed largely due to refurbishment work to the roof which had to be funded by the 20 or so leaseholders. The parties can expect to receive the sum of £153,588 each when completion does take place.
14. There was also delay in removing the wife from the title to A house and releasing her from the mortgage. A house is a property where the parties daughter resides. She is 32 years old and is in the final year of a veterinary course.
15. The husband is 60 and is a self-employed accountant. He has a number of investment properties all with outstanding mortgages. The wife will be 66 in January 2025.
16. In evidence, the wife described the husband as a workaholic. She accused him of lying to her and breaching the court order by allowing tenants into B flat and pocketing the rent instead of getting on with the sale as ordered. The husband countered by saying the flat was impossible to sell until such time as the roof repairs had been funded and carried out.
17. Both parties accuse the other of failing to maximise income. The husband accepted in cross examination that A house could be rented for £1500 per month with vacant possession instead of the £700 per month received from the daughter's boyfriend.
18. Similarly, C house which is also owned by the husband is kept for holidays and could potentially produce a market rent of a further £1500 per month. However, after discharge of the monthly mortgage payments on both A house and C house profits would still be modest.
19. The husband is a self-employed accountant and according to his 23/24 tax return at page 396 his gross earnings were £89,202 which equates to £5116.77 net per month.
20. The wife is unable to work but purchased a solar farm in 2020 to enhance her income. She failed to declare any income from this on her E2. The profit and loss account for D limited was not disclosed. During cross examination the wife was taken through the bank statements into which the solar farm income was paid. She accepted that between June 2023 and August 2024 inclusive the solar farm bank account had received income of £36,028. I find that after expenses for cleaning the solar panels and maintenance this would generate a net profit of between £24-£25,000 less insurance of £3000 equates to approx. £21,000 per annum before tax. The wife pointed out however that the panels are about 10 years old and their capacity to generate electricity deteriorates over time.
21. The wife was adamant that she is unable to make ends meet without the spousal maintenance ordered. At page 195 she sets her income needs as £5256 per month. This does seem excessive given that the wife lives in a mortgage free property and only has herself to support notwithstanding her ill health. It includes such items as £900 for monthly health insurance which may be unrealistic in the circumstances. The husband relied on a spreadsheet he had compiled to show that her actual average expenditure was just £2650 per month. This does seem to me to be a more realistic figure to work from albeit on the low side.
22. In evidence the wife said she had just spent £10,000 on a bathroom, £3000 on new carpets £10,000 on a new kitchen and £2000 on wooden flooring together with garden landscaping. These are one-off capital expenditures which will hopefully not have to be repeated in the foreseeable future.
23. Both parties are due to receive approximately £153,588 from the sale of B flat.
24. The wife currently estimates about £900 per month on private health insurance. This followed the husband ceasing to pay her private health insurance in February of this year. The husband ceased paying the wife's dental plan in March of this year and her mobile phone plan in August this year.
25. The husband' income is not dissimilar to the levels he was earning in 2012. Unlike the wife however the husband has access to capital from the sale of property. I do not however intend to explore this avenue on the basis that this case is really concerned with meeting the wife's income needs. I bear in mind that the judge's raison d'être at the hearing in 2012 was to achieve an equal division of capital.
26. The husband's gross income from his most recent tax return is £89,000. At page 217 he puts his outgoings at £15,000 per month. This again seems excessive. It includes private healthcare insurance for the husband and his new family and lists items of expense such as tennis club membership and other non-essential expenses. It includes mortgage payments on A house and C house which yield little or no income or financial benefit. There is plenty of scope for other economies. Nevertheless, I am not convinced the husband can continue to pay £2000 per month indefinitely and I accept money is tight.
27. The law.
28. The Law is helpfully set out in both parties' skeleton arguments. Under section 31 (7) MCA 1973 the court should consider all the circumstances of the case. The court is particularly required to consider any change in those circumstances since the original order was made. Ms. Smith says that the change does not have to be unforeseeable at the time the order was made.
29. The husband says he has made out a change in circumstances. The wife has all but reached retirement age and is due to receive her state pension when she turns 66 in January 2025 next month. The husband has remarried and has a new family to support. He hopes to wind down and retire shortly. The wife is sceptical about that.
30. I have been provided with a few authorities. I made it plain to counsel that I do not have the time to consider these authorities within the time permitted. Only one day was allowed for this case with submissions continuing until after 5 PM allowing little time for judgment.
31. I should not interfere with the court's intention in 2012 to achieve a broadly equal division of capital and I'm only really concerned with the parties' income positions and ensuring that the wife's reasonable needs are met and are affordable.
32. As indicated earlier I consider the wife's stated needs of more than £5000 per month to be excessive given she is in a mortgage free property and only has herself to support. I place a reasonable needs figure to be closer to £3000 per month.
33. I have regard to the husband's ability to continue to make the payment sought particularly given that he himself will reach retirement age in seven years' time. I do however consider that the husband will be able to continue to undertake ad hoc accountancy work in retirement should he choose so to do.
34. My decision
35. The first issue on the wife's application is whether the husband is indeed in arrears by not paying the RPI element of spousal maintenance as ordered. Under cross-examination the husband admitted that he was in technical breach of the order. However, the husband relies on a spreadsheet that was largely unchallenged to show that once one considered the additional payments in relation to the wife's health insurance, dental plan and mobile phone the payments he actually made exceed the amounts he was ordered to pay. This is illustrated by the spreadsheet produced by the husband at page 182 of the bundle. For this reason, I dismiss the wife's application. In any event the wife needs permission to pursue any arrears that were more than one year old prior to the date of her application, and I can see no reason why this permission should be granted in the circumstances of this case.
36. As to the husband's application to remit any arrears and to cease paying spousal maintenance I have assessed the wife's reasonable needs at £3000 per month.
37. Once the pension sharing orders are implemented in March of this year this should yield £11,500 gross per annum. The wife will also be eligible for a state pension from January 2025 providing her with a further £11,500.
38. This equates to a gross income of £23,000.
39. When one adds the income from the solar farm of say £21,000 this gives a gross figure of £44,000. This equates to a net income of £33,000 or £2750 per month.
40. However, I caution against considering all the income from the solar farm. Firstly, this is expected to decrease as the panels age. Secondly and more significantly, I feel it would be unfair to effectively penalise the wife for utilising some of her capital to bolster her income in circumstances where the husband has not done so. This is particularly so with the properties at A house and C property.
41. Nevertheless, the solar farm is an income source for the wife and cannot be ignored altogether. A fair approach would be to credit the wife with a notional income of £10,000 per annum from the solar farm or say £8000 as a net figure.
42. This gives a notional net income from March 2025 for the wife of £11,500 state pension £11,500 private pension and £8000 from the solar farm equating to a gross figure of £31,000 and a net figure of £26,000. This equates to £2166 per month. Having assessed the wife's monthly income needs as £3000 the husband will need to make up the shortfall of say £1000 per month in round terms which I order him to do from the 1^{st of} April onwards. He should continue to pay £2000 per month until that date.
43. A reduction thereafter is fair given that the husband's income has fallen in real terms. At the time the order was made in 2012 the periodical payments worked out at about 35% of his net income. That figure is now closer to 45% which is higher than perhaps the trial judge intended. The husband remarried in 2014 and has new family commitments of his own. Although his new wife earns circa £50,000 the husband gave evidence that she too is in poor health and would wish to wind down as would the husband as he approaches retirement age.
44. Whilst I am not strictly concerned with available capital, I note that both parties are to receive their share of B flat in the sum of approximately £153,588 each soon notwithstanding a recent offer appears to now be on a knife edge. According to the wife the land upon which the solar farm stands is worth about £150,000.
45. I am concerned that there has been no finality in this litigation and that it has not been possible to implement the clean break principle. For this reason, I encourage the parties to agree a Duxbury capitalisation figure based on life expectancy so that the husband can, if necessary, sell one of his properties to achieve a clean break. Otherwise, I fear the door may be left open to the husband making a further variation application as he approaches retirement, or for the wife to make a further application if her circumstances change.
46. The parties must co-operate with the implementation of the pension sharing orders as quickly as possible. I understand these are missing from the court file and I have offered to authorise resealing if duplicates can be agreed and sent to me.
47. I direct that this matter be listed for a one-hour remote mention hearing before me in January or failing that February next year to consider a hopefully agreed draft order arising from this judgment with capitalisation calculations, and to consider any claim for costs. (I hope there will be none to avoid incurring further costs arguing about costs). I look forward to receiving an agreed draft order accordingly.

DJ Hatvany

10^th April 2025