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X v C [2022] EWFC 79

https://www.bailii.org/ew/cases/EWFC/HCJ/2022/79.html

Judgment of HHJ Farquhar in a financial remedy case in which the assets were limited, providing useful guidance for ‘needs’ cases, particularly in relation to the treatment of the former matrimonial home, emphasising the principle that there can be no ‘ring-fencing’ of assets in a ‘needs’ case and dealing with the issue of anonymisation of judgments.

 

The wife was 46 and worked as a Senior Nursing Sister, part time. The husband was 50 and worked in IT. The wife worked 28.7 hours per week earning £35,143 gross and claimed Universal Credit and Child Benefit. She had 3 teenage children from her previous marriage, and there was a child of the parties who was 7. The wife lived in rented accommodation. She had debts which had amassed primarily through the costs of the litigation.

 

The husband had gross income of £70,400. He lived in the former matrimonial home with his grown-up children from a previous marriage. The parties had started living together in October 2021, the former matrimonial home was purchased in June 2013, and the parties separated in October 2019 when the wife left the property having made allegations of domestic abuse against the husband. The wife commenced financial remedy proceedings in February 2020. The husband’s approach to the litigation was obstructive and uncooperative throughout.

 

The assets comprised the former matrimonial home, valued at £500,000 with a mortgage of £230,000; a property owned by the wife and her first husband with equity of £85,000 – £105,000 depending on the precise valuation and whether CGT should be considered. Some woods valued at £45,000 which the husband claimed had been gifted to his son; the wife’s pension with a CETV of £230,835 and various vehicles and number plates with a value of £35,000 owned by the husband which he stated had been gifted to his son. 

The issues in relation to the assets included how the former matrimonial home should be considered; how the court should approach the wife’s previous matrimonial home: whether the husband still owned the woods and the various vehicles and number plates; the wife’s pension; each party’s mortgage capacity and the husband’s litigation conduct.

In relation to the matrimonial home, the husband argued that the fact he provided the deposit should be reflected in the outcome. The judge said: “The reality is that in a needs case such as this the court needs to consider all of the assets, but it is accepted that the premarital contributions made by either party cannot be ignored. However, the matrimonial home is considered somewhat differently to other assets as it has a unique place within the parties’ relationship (per Miller/McFarlane) and is almost always considered as a matrimonial asset. There can be no question in a ‘needs’ case such as this of the Court being able to ‘ring-fence’ any asset as pre-marital and not considering it for distribution between the parties.”

The judge found that there was no evidence to support the argument that the wife would be able to realise her interest in her previous matrimonial home any time soon and therefore she would not be able to use it to assist in the purchase of any alternative property at present. The husband’s argument that he had gifted assets to his son was likewise not supported by the evidence.

The judge was highly critical of the husband’s conduct during the proceedings and accepted that it was “highly likely that the aim and intention of the Respondent has been to do all that he can to prolong these proceedings and to make it as difficult as possible for the Applicant and the Court to get this case to a final conclusion.”

The final order provided for the wife to receive £150,000 from the sale of the matrimonial home, leaving £100,00 for the husband to add to his other assets of £70,000 to purchase another property. The wife retained her pension and there was a clean break in respect of all claims. The husband was ordered to pay the sum of £4,000 towards the wife’s costs in view of his litigation misconduct.

During the hearing the husband made a request that the judgment should not be anonymised save for the name of the child of the parties, arguing his right to exercise freedom of expression, amongst other matters. The wife wanted the judgement to be anonymous principally because of the risk of the child of the family being identified. HHJ Farquhar considered Mostyn J’s judgment in Gallagher v Gallagher [2022] EWFC 52 and indicated that he must perform a “focussed fact-specific Re S exercise of balancing the Art 6, 8 and 10 rights” in order to consider whether to make a reporting restriction order/anonymity order. The starting point was to consider ‘why should anonymity be granted’ rather than the reverse. The judge was concerned about the impact on the child involved of any greater publicity and commotion surrounding his parents’ separation, pointing out that there were highly contested Children Act proceedings underway already. He was also concerned that there was a risk the husband would use his ability to publish the judgment in a non-anonymised form inappropriately to cause anguish to the wife.

He concluded: ” In all of the circumstances I am satisfied that the ‘ultimate balancing’ test referred to in Re S (above) falls in favour of restricting the Article 10 rights of the parties. The Article 8 rights of the child are of greater significance in this case, and it is a proportionate method of protecting those rights by restricting the competing Article 10 rights in this particular case. To that extent I grant a Reporting Restriction Order/Anonymity Order that this judgment may be published but in an anonymous form. This will enable any member of the public to have a full understanding of the issues between the parties and how and why the decision that has been made has been reached without risking further harm upon the child in the middle of the parties involved.”

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