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This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
||Neutral Citation Number:  EWHC 277 (Fam)
||Case No: FD13D04178
IN THE HIGH COURT OF JUSTICE
||Royal Courts of Justice
Strand, London, WC2A 2LL
||22nd February 2016
B e f o r e :
MRS JUSTICE ROBERTS
||- and –
Robert Peel QC and Amber Sheridan (instructed by Payne Hicks Beach) for the Petitioner
Richard Todd QC and Max Lewis (instructed by Grosvenor Law) for the 1st Respondent
Lewis Marks QC and Marcus Lazarides (instructed by Wiggin Osborne Fullerlove) for the 2nd, 3rd and 4th Respondents
Hearing dates: 17th November 2015 to the 25th November 2015
HTML VERSION OF JUDGMENT
Crown Copyright ©
- This is an application by a former wife for financial remedy orders. The applicant is NR. Her former husband, AB, is the First Respondent. I shall refer to them, respectively, in this judgment as "the husband" (H) and "the wife" (W). Each should know that I intend no disrespect to either of them in adopting this convenient shorthand. Their marriage was in fact dissolved on 25 July 2014 when a decree nisi pronounced in January 2014 was made absolute.
- There are three further Respondents to this application. On 21 May 2014 Sir Peter Singer made an order joining as parties to this litigation a family company and H's mother and sister. They are respectively BCO Limited, an offshore property holding company incorporated in St Vincent and the Grenadines ("BCO"); MB ("H's mother"); and LB ("H's sister"). Their involvement in these matrimonial proceedings has been necessary because one of the central issues which I have to determine is the nature and extent of the resources which are available for division at the end of this marriage ("the computation issue"). It is said by all four respondents that, since the death of H's father in 1991, the family has historically arranged its affairs on the basis of joint or collective family ownership of various properties and other assets. There is a dispute between H and W as to the extent of H's beneficial ownership of a number of properties and other assets situated both within the jurisdiction in London and outwith in France and Saudi Arabia. BCO was incorporated in May 1978 by H's late father and, over the years, it has provided the vehicle through which a number of property acquisitions have been channelled.
- H's father, NB, died on 24 November 1991. He had been suffering from a terminal illness for several months and, although he died intestate, he had in December 1989 set out his testamentary intentions in a formal letter of wishes. It is that document which, on the respondents' case, has shaped and guided the investment decisions which H, his mother and sister have made during the intervening years. Having seen and heard from all three during the course of this hearing, I am left in no doubt that they are a close, tight and loving family unit who have supported each other over the years since the loss of their late husband and father. As both his mother and sister accept, H took over as the head of their family and they have looked to him to take care of them and manage their financial investments, as his father did before his untimely death. The extent to which their dealings have offered the opportunity to cloak or conceal the true nature of some of those transactions in the context of the present matrimonial proceedings is something which I shall need to determine in due course. It is W's case that, in various respects, the picture which was presented to her during the marriage in terms of the ownership of various assets is wholly inconsistent with the financial presentation which H now asks the court to accept as reflecting the underlying reality. There are also significant complaints about the manner in which he has presented his financial disclosure during the two years and more over which this litigation has been continuing.
- In parallel with the financial litigation, H and W have been involved in many months of highly acrimonious litigation over their three children. There has already been a lengthy hearing in front of Russell J in relation to H's contact with the children. He told me that he has not been able to maintain a proper relationship with his children for the best part of two years since the marriage broke down. I am aware that the judge made a number of findings about him in a judgment delivered on 19 December 2013. I have not been provided with a full copy of her judgment, nor is it necessary or appropriate that I should have been. However, I am aware that the bitterness and hurt which those proceedings have generated on both sides of the extended family have to a significant extent contaminated these financial proceedings. I have little doubt that this has been a factor which has only served to increase W's concerns about the extent to which H has made full, frank and complete disclosure of his financial affairs.
- The wider family members on both sides have been drawn into the dispute. Whilst he is not a party to these proceedings, W's own father has played a significant role in the saga as it has unfolded. He is by all accounts a man of very significant wealth and has to date paid her legal costs to the tune of over £1 million. That the underlying dynamic of this litigation is informed to a significant extent by the polarised positions of the various family members is not in doubt as far as I am concerned. Whereas I have not had the opportunity to see and hear W's father in the witness box, I have observed H's mother. She struck me as a highly intelligent woman of considerable grace and elegance. Whilst she now looks to her son, H, as the perceived head of the family, she is nevertheless a lady who, in my judgment, has very clear ideas and opinions about how things should be done. She appeared entirely weary of the wider family's involvement in the litigation which has flowed from the breakdown of her son's and daughter-in-law's marriage and she became visibly distressed as she recounted to me how it had resulted in an enforced estrangement from her grandchildren. These are not issues for me. I set them out at this stage simply to set the scene for the financial litigation which has now cost this family a total of more than £2 million.
- Mr Robert Peel QC appeared with Miss Amber Sheridan on behalf of W, instructed by Payne Hicks Beach. H is represented by Mr Richard Todd QC who appeared with his junior, Mr Max Lewis. Their professional instructions came from Grosvenor Law. The company, together with H's mother and sister, were represented by Mr Lewis Marks QC and his junior, Mr Marcus Lazarides, who were instructed by Wiggin Osborne Fullerlove. It is abundantly clear to me that an enormous amount of care and industry has gone into the written presentations which were put before the court at the commencement of this hearing and by way of refinement to the parties' respective cases at its conclusion. I have been greatly assisted by all the legal teams and extend my thanks to each one.
- H was born in May 1970; he is now 45 years old. He holds dual Saudi and British nationality. W was born in May 1978 and she is 37 years old. H has one sister, the fourth respondent in these proceedings. W is one of three siblings.
- H's professional background is the world of international banking. Over the course of his career, he has been employed by a number of well-known banks including J P Morgan, Citibank, Goldman Sachs and EFG Hermès. Most recently he has been employed as the chief executive officer of AL Company (a corporate global equity investor) where his gross annual income was just under £326,500. In circumstances to which I shall come, H's income has recently been reduced and his future with his current employer remains uncertain. However, he told me that when this litigation is concluded and he returns to live in the Middle East (as is his current intention), he will use his best endeavours to find a full-time job which provides him with a more or less comparable remuneration package. Since his divorce from W, he has remarried under Sharia law and his second wife and their 5 month old daughter live in Dubai.
- Whilst W's written evidence refers to their engagement as having been celebrated in 1998, I am satisfied that the true position, as she explained during her oral evidence, was that they had become engaged in or about April 1999. During the previous year, H had been romantically involved with another woman whom it appears he continued to see during the early part of his relationship with W. However, the two of them soon became committed to one another and their relationship developed quickly thereafter. H sought W's father's permission to marry and they were married in central London on 20th May 1999. H was then 28 and W 21 years old. He was in the early stages of his banking career and was employed by Goldman Sachs. A few days later, there was a second Sharia ceremony in London.
- Once married, the couple moved into a London apartment at 18 SP Mansions in South Kensington ("18SPM"). The leasehold interest in that property had been purchased in October 1998. The legal title was acquired by BCO and the purchase price was £965,000. Amongst the material in the bundles placed before me were a number of documents relating to this transaction [E:55-94]. APS, a well-known firm of London solicitors, handled the conveyancing through one of its partners, Mr V. The property is described as "a wonderfully bright penthouse duplex with direct views over Kensington Gardens". It then consisted of three bedrooms and three bathrooms. As was made known to the vendor's solicitors at the time, the purchase was to be completed in the name of "a British West Indies company that is operated through a Channel Islands Bank". That bank was VD Bank. On behalf of APS, Mr V wrote,
"We can in fact give a reference for that company as we have acted for it and the family for a number of years."
- Two days prior to the completion of the purchase of 18SPM, Mr V had written to a gentleman whom I assume to be acting on behalf of the freeholder in relation to the service charge. His letter records the following:
"BCO is a company controlled by AB and his mother and sister who are highly respectable Saudi Arabian residents."
- I shall need to return to the circumstances in which 18SPM came to be used as the matrimonial home for this couple who took up residence in June or July 1999. About a year later, on 15 July 2000, their eldest son, IK, was born. He is now 15 years old and attends a private day school in central London. His younger brother, AK, was born on 19 December 2002. He will shortly celebrate his 13th birthday. He too attends a day school in central London, albeit a different school from his elder brother. IK has been diagnosed as having special educational needs as a result of an auditory and linguistic processing disorder. In order to secure for him what they considered to be the best treatment available, the family moved in the summer of 2004 to live in New York. H had secured employment there and they stayed for two years before moving back into 18SPM in the summer of 2006. During their absence, the property had remained empty, albeit available to them when they returned on occasions to London.
- By the time the family returned to London, the boys were 6 and 3½ years old. W has not worked during this marriage but has devoted her time and energies to the care of the family and the children. She has had help from nannies and other staff. When, in January 2008, the opportunity presented itself to acquire another flat in the same block, they decided to purchase it as accommodation for their staff. Whilst on a different floor, the front door entrance to 18A SP Mansions ("18A") is adjacent to the door to the apartment occupied by the family. The upstairs flat (18A) is slightly smaller and appears to have been used since it was acquired to accommodate the nannies whom the family has employed from time to time together with any family "overspill" on the occasions when guests have been accommodated.
- I have within the written material a letter which was written by Mr V to H on 11 September 2007 enquiring whether this flat was to be purchased in his sole name, in the joint names of himself and W, or in the name of a company. A subsequent letter to one of the corporate nominee directors of BCO confirms H's instructions that 18A was to be bought in the name of the company. The purchase was duly completed in the company's name for £725,000. I shall return to this transaction later.
- Later that year, the company acquired a leasehold extension (equivalent to a freehold interest) in respect of both 18SPM and 18A at a cost of £400,000. Those funds were sent to APS from an account with HSBC in Geneva in the joint names of H's mother and sister.
- By now tensions had appeared in the marriage. For a period of some eight or nine months, W and the two children moved out of 18SPM and took up residence in a property in CK Street which was her parents' London home. By June 2009, there appears to have been a rapprochement between H and W. In the late summer of 2009, the family left London and relocated to Jeddah, albeit that H and W were living in separate households for about a year or more. They appear to have become fully reconciled by October 2010. Almost a year later, on 7 October 2011, their youngest son, EK was born.
- In January 2010 a property in Jeddah had been purchased for the family's occupation. This was in BB Road in the T District of the city ("the BB Road property"). This appears to have been financed by cash funds of US$2 million advanced by H's mother. H maintained in his original financial presentation that this was a loan from his mother to him.
- H told me during the course of his oral evidence that the parties' move to Saudi Arabia was intended to be permanent. He said that he was finding London to be increasingly expensive, particularly in terms of maintaining the staff employed by the family. He also believed that the children's ongoing educational interests would best be served by being raised in Jeddah or Dubai rather than in London. W clearly did not agree. On 29 August 2012, when EK was not yet a year old, she flew with the children to London and moved back into 18SPM whilst the present nanny took up occupation in 18A. H described this move on her part as "a completely unexpected bombshell".
- Exactly one year later to the day, she issued her petition seeking dissolution of the marriage and shortly thereafter registered notices against both properties in SPM. On the same day, she issued her Form A which was the origin of the application with which I am now dealing. It is H's case that this was naked forum-shopping on her part. Whilst initially it seems he did not wish to engage in a jurisdictional debate, on 28 September 2013 he issued his own proceedings in the local Saudi courts and, less than a week later, sought permission to file an answer out of time to W's English proceedings.
- W's Form E was dated 17 October 2013. As that document makes plain, she held no assets of any substance in her own name although she laid claim to a 50% beneficial interest in 18SPM and 18A and the Kensington flat occupied by H's mother as her London base (19LTC); in other words, she claimed a half share in the entire BCO property portfolio. A little over a week later, she issued an application for interim maintenance. In November 2013 the parties reached an agreement as to W's interim support. In addition to meeting the household outgoings (including staff costs), school fees and various other expenses, H agreed to provide W with £8,000 per month. (That agreement was confirmed by District Judge Hess (as he then was) some four months later on 7 March 2014 and it forms the basis of the financial provision which H is currently making for W and the children, albeit that there have been several complaints – reflected in judgment summons – of late payment on his part.)
- By the beginning of December 2013, there were parallel proceedings ongoing in the Saudi courts involving W's father. She alleges that H had accused her father of instigating the English divorce proceedings and conspiring with W to remove the children back to the UK.
H's Form E
- H's financial presentation in his Form E is dated 12 December 2013. In that document he records a total net worth of just under £1.7 million and a net income of just over £500,000 per annum (made up of salary and dividends). He describes himself as a "licensee" at 18SPM and a one-third owner of the BB Road property and a second beach-front property on the coast in Jeddah. He said he co-owned these two properties with his mother and sister, the former having been acquired with a loan from his mother. The beach-front property in the P District of the city was said to have been purchased some seven years prior to the marriage in 1992 and to have a value of 6 million Saudi Arabian Riyals ("SAR"), an equivalent of just under £1 million. (In fact, that property appears to be worth very significantly more; an updated valuation from OPM ascribes to it a current value of almost SAR 115.5 million, almost £20 million). He listed a number of bank accounts and investments held in this jurisdiction and overseas, three of which were stated to be in the names of the "Heirs of NB", H's late father. In two of these, he disclosed a one-third interest. In terms of liabilities, his gross estate of just under £4.5 million was significantly reduced by the impact of three loans, together totalling some £3.3 million, said to be due to his mother, brother-in-law and a gentleman named CD.
- He described BCO as a property holding company and described himself as a "beneficiary of shares … held by nominees". He disclosed that 18SPM and 18A were owned by the company together with another London property at 19LTC. That was the home which his mother and father had used as their London base and which is still used by his mother when she is in London. Whilst he attributes to BCO's property portfolio a value of £10.45 million, none of that value finds its way into the total provided for his personal net wealth.
- By way of a rider, H expanded upon the manner in which the two apartments in SPM had been acquired. Those acquisitions had followed the blueprint put in place by his late father when he acquired the London apartment at 19LTC some thirty five years before. Family money had been lent to BCO on the basis of an interest free unsecured loan repayable on demand. In the same way, family money (including funds inherited by all three respondents on the death of H's father) was loaned to the company on precisely the same terms. H accepted from the outset that he should be treated as having a one-third interest in the loan of £965,000 through his interest in the company.
- The financial proceedings were transferred to the High Court at a First Appointment in January 2014.
- In the meantime, it appears that further proceedings were ongoing in Saudi Arabia initiated by both H and his mother and sister. In February 2014, H's English solicitors wrote to W's solicitors to inform them that his interest in the BB Road property and the beach-front villa in Jeddah had been transferred to his mother in part payment of the outstanding loan he owed to her.
- In March 2014, H replied to a lengthy questionnaire delivered by W's solicitors. That same month, solicitors acting for BCO, H's mother and sister wrote to W's solicitors requiring them to remove the notices which had been registered on her behalf against the two flats in SPM. Those same solicitors served a notice to quit on the children's nanny who was residing in Flat 18A. W's rejoinder came the following month. Whilst she withdrew from her claim against 19LTC which she accepted was owned legally and beneficially by the company, she asserted that 18SPM and 18A were held beneficially by H.
- At a hearing before Sir Peter Singer on 21 May 2014, the second, third and fourth respondents were formally joined as parties to the matrimonial proceedings. A freezing order was made which prevented H from dealing with 18SPM and 18A. The parties were directed to set out their respective cases in relation to the ownership of those two properties by means of formal pleadings.
- In the meantime, the process of disclosure continued. Both parties replied to schedules of deficiencies.
- On 4 July 2014, W delivered her Points of Claim. In it, she accepted that the legal titles to both 18SPM and 18A were held by BCO whose shares were (and are) owned by two Jersey nominee companies. Nevertheless, she sought declarations that:
(i) those corporate nominees held the BCO shares as to 58.33% for H by virtue of the fact that this was his fixed entitlement to his late father's estate under Saudi Arabian law; and
(ii) H held 100% (or such other proportion as the court should determine) of the beneficial interest in the two properties under a constructive or resulting trust.
She claimed to be entitled to such declaratory relief on the basis that it was agreed, intended and understood by H, his mother, sister and the company that those two properties would be held exclusively for his benefit. She relied on the fact that H had always told her that he was the owner of the flats and had shown her 18SPM shortly before their engagement when it was presented to her as the home in which they would live once married. By that stage, H had disclosed some thirteen lever arch files of documents containing a significant amount of material which had been extracted from APS's conveyancing files. Various extracts and pieces of information were relied on in W's pleading as substantiating her case in relation to the existence of a constructive or resulting trust.
- By his Points of Defence served on 3 July 2014, H denied that he had any beneficial interest in either of the two properties in SPM owned by BCO. The company was both legal and beneficial owner of the leasehold interest in each flat. Relying upon his late father's letter of wishes, he averred that the family members had respected and carried out his father's desire to see his wife and two children share equally in the assets of BCO and in any assets which fell into his estate upon his death. In December 1991, H's mother and sister had given him a power of attorney authorising him to deal with the assets in the estate subject to an express agreement between them that the estate would be held by the three of them in equal shares. That agreement had superseded any legal entitlement which arose through an application of Saudi Arabian law under which H would have been entitled to 58.33% of the estate. He further averred that his mother was independently wealthy in her own right having been gifted significant sums from her own father prior to her late husband's death. Thus, on his case, what he had received by way of inheritance from his late father was a one-third interest in each of the BCO shares, various bank accounts and shares and the beach front property in the P District of Jeddah. Since his father's death, transactions concerning the estate assets had been conducted through several accounts held with HSBC including a Swiss account in the name of his mother and sister and an account at the Saudi Arabian British Bank (SABB) in the name of "The Heirs of NB". H denied he had ever told W that he had a beneficial interest in either of the flats. He asserted that the company had completed the purchase of 18SPM in October 1998 and initially the purchase had been approved by his mother and sister on the basis that his sister would use it as her London base. The longer term intention which H says was shared by him and W was that they would make their permanent home in Saudi Arabia although, until then, they had agreed to live wherever H's work might take him. Insofar as he might have paid the purchase price to the vendor, he denied that the funds paid over were beneficially his alone.
- The Points of Defence pleaded on behalf of the second, third and fourth respondents denied that W was entitled to the declarations sought. That document set out the final wishes and intentions of H's father as to an equal division of his estate between his wife and two children and pointed to the significantly detrimental consequences to H's mother and sister in the event of a finding that the two properties were subsequently acquired for his benefit alone. Not only would that have been alien to the structure set up by his father; it would substantially defeat both the short- and long-term tax planning advantages which enured to all three because the properties were owned legally and beneficially by an offshore company. It was denied that there was any agreement between the company, H's mother and sister or with W and/or H that 18SPM or 18A would be held by the company for H's benefit and there had never been any such intention or understanding to that effect. To the extent that H may have spent his own money on either property, that was a reflection of his occupation and did not create any intention that he should acquire a direct interest in the property in just the same way as expenditure by his mother and sister on property which they had occupied did not create in them any direct interest in their properties. In putting in place the arrangements for the purchases, H had his mother's and sister's authority to act on their collective behalves: he was a trusted member of the same family and was acting in accordance with Saudi norms as the head of their family in place of his late father. He had acted simply as the "negotiator" in making the conveyancing arrangements in respect of both the original property acquisitions and the lease extensions but he had, throughout, acted in a representative capacity and on their behalves.
- The litigation continued throughout the rest of 2014 and into 2015 in an increasingly hostile manner. H had applied to vary the maintenance he was providing for W as a result of a significant reduction in his income. By the beginning of 2015, W had issued no fewer than three separate judgment summons. A first attempt at resolving matters within the context of a Financial Dispute Resolution hearing in October 2014 had been adjourned to April 2015. On that occasion, it was adjourned once again by Mostyn J to whom it had been reserved. When it finally came back on 27 July 2015, it was apparent that the issues would have to be litigated to a conclusion through a final hearing and directions for trial were made.
- The issues for the final hearing were defined in the following terms:-
(i) the beneficial ownership of the properties ("the beneficial ownership issue");
(ii) whether there is a nuptial settlement capable of variation in relation to either of the properties at 18SPM or 18A ("the nuptial settlement issue"); and
(iii) W's substantive application for ancillary relief.
W was given permission on that occasion to amend her Form A to include an application pursuant to s 24(1)(c) of the Matrimonial Causes Act 1973 to vary a nuptial settlement.
- I dealt with a pre-trial review on 5 October 2015 by which time the parties had produced their respective narrative statements on the beneficial ownership and nuptial settlement issues and H and W had filed statements dealing with the balance of issues arising under section 25 of the 1973 Act. Each was required by Mostyn J's order to produce updating financial disclosure by the end of September 2015. His order included a detailed list of what was to be included in that updating exercise and provision had also been made for valuation evidence in relation to the various properties.
- With the documents which came to me from counsel when I read into this case was an asset schedule prepared by junior counsel on behalf of each of H and W showing, in two separate columns, where they were apart in terms of computation. On behalf of W, it was then being asserted that the assets in the case belonging to H beneficially (including those falling within the wider 'family arrangement') amounted to just under £17.4 million. On H's case, when allowance was made for his own liabilities and the figure of over £1 million which W said she owed to her father in respect of her legal costs, the asset base was marginally over £1.75 million. Thus was the polarity between the parties as the case began. In closing a separate schedule was prepared on behalf of the second, third and fourth respondents (i.e. the non-matrimonial parties, including the company) which put the global wealth represented by H's one-third share in the family arrangement at just over £14.25 million, a figure which fell to some £13.4 million once H's own assets and liabilities were factored in. If account was taken of W's litigation loan from her father, the assets were reduced further to £12.225 million.
The parties open positions as the final hearing commenced
- As to the parties' open positions by that stage, W was seeking a lump sum of £7.5 million. In default of payment, she sought a transfer into her sole name of the two properties in SPM in part satisfaction of that sum. The basis of her capital claim was said to be a housing fund of £5.5 million and an income fund of £2 million. In addition, she was looking for her costs (just under £1.2 million) and £25,000 for a new car. This was to represent a clean break settlement under the terms of which she would have no future entitlement to financial support from H. As to support for the children, she sought maintenance at the rate of £15,000 per annum per child together with their school fees. On the basis of the figures relied upon by W for the total wealth available to them (including the entire beneficial interest in the two properties in SPM), this would have represented an award of about 43% of the global assets.
- H's open position was set out in his section 25 statement dated 29 September 2015. That position appears to have been informed by family discussions as to how a settlement could be structured so as to leave W in occupation of the property which she plainly regarded as "the matrimonial home". It was a proposal which appeared to carry the imprimatur of consent from his mother and sister as the other beneficial owners of BCO. On the basis of a cash settlement of £2.5 million, W and the children were to remain in sole occupation of "18SPM" (which I take to include both 18 and 18A) until their eldest son reached the age of 18 years. Thus, her rights of occupation would terminate in July 2018 at which point the two younger children would be 15½ and 6½ years old respectively. At that point H appeared to envisage that she could "relocate to somewhere more affordable" and/or to a smaller property depending upon whatever future plans their (then) 18 year old son might have in terms of his own living arrangements. He does not explain the significance or rationale of the sum to be paid by way of an outright cash settlement. The "sub-text" of the offer, whilst unarticulated, appears to be that it is a matter for W as to how she applies the £2.5 million but, in any event, any shortfall in terms of her perceived "needs" will be met by her very wealthy father either directly during his lifetime or indirectly through inheritance on his death. H's proposed financial support for each of their children at the rate of £12,000 per annum.
- As I remarked over the course of the hearing, much of the oral evidence was adduced in the context of an OS v DS type of hearing. It was not until the fourth day of the hearing that the full picture in relation to the family arrangement and the funds held within it began to emerge with any degree of clarity. By the time I came to hear closing submissions, it was accepted by Mr Todd QC and Mr Lewis that H's assets (including his share of the funds inherited on the death of his father) amounted to just under £8 million, and not the figure of £1.75 million for which he had been contending when the hearing began. Of that sum, and on H's case, the vast majority is represented by inherited wealth emanating from his father's estate. His personal liquid assets account for just over £1.6 million and, on his case, he has liabilities of over £2.5 million.
- In terms of oral evidence, I heard from five witnesses each of whom had made statements.
- W struck me as a softly spoken but intelligent woman who maintained her composure throughout the course of her evidence. She was quick to make concessions where appropriate even when those concessions were inconsistent with aspects of her pleaded case. She accepted that there were aspects of the matrimonial chronology which she could not remember in terms of the detail which she was being asked to provide. However, she was quite clear in her subjective impression that 18SPM had been her family home and that everything which H had said to her had led her to believe that he owned it beneficially to the exclusion of his mother and sister. She accepted without reservation that, as a couple, they had never had a particularly open relationship about their financial affairs. It seemed to me that this was as much a consequence of their heritage, culture and upbringing as any wish on H's part to exclude W from information. From W's perspective, I accept that finances were never the central focus of family life. They were very comfortably off in financial terms. Each came from independently wealthy families and, throughout the marriage, W had access to and use of the wider family's properties in Jeddah and in the South of France. Not only does she appear to have been a regular summer visitor over the years with her family at the beach house in P District; she also stayed from time to time at her father's home in Saudi Arabia. H's income from his banking activities provided the family with a comfortable existence which included assistance from nannies and other staff. I suspect that having grown up in a family where money was no object, W felt unconcerned about day-to-day financial affairs. I accept that that position was to change by the time this litigation was underway and I accept that in latter months she will, at times, have felt under considerable financial pressure as she tried to juggle her domestic economy against the background of the fixed income which was to replace the unrestricted access she had hitherto had to bank accounts and credit cards funded by H. By the conclusion of the evidence, W accepted that H had no more than a one-third interest in 19LTC and the "family arrangement" properties in Jeddah and the South of France. However, as reflected in the final version of the amended asset schedule which was handed up during closing submissions, she clings to a belief that he owns 100% of the beneficial interest in 18SPM and 18A.
- On the whole, I found W to be a truthful witness who was doing her best to assist me. She has clearly found the process of litigation to be wearing and has, as I accept, on occasion been on the receiving end of some inappropriate and vindictive behaviour by H. In delivering her judgment on 19 December 2013 in the case relating to the children, Russell J made a number of findings about H's controlling behaviour vis à vis his wife. I suspect that aspects of that desire to control the situation provide the rationale for much of what has occurred in relation to the development of H's financial disclosure in these parallel financial proceedings. To the extent that W's legal team has carried the burden of unravelling a complex financial structure without the benefit of a full narrative explanation which was not advanced until this hearing, she has plainly been at a significant disadvantage. No doubt that informs, at least in part, the very substantial costs bill which she has run up.
- Mr Todd in his closing submissions sought to attack W's evidence as being, at times, internally inconsistent with the material evidence which is available in the bundles. In particular he criticises her failure to call her father as a witness. I shall need to return to this gentleman and his relevance in these matrimonial proceedings shortly. However, Mr Todd asks me to bear in mind that W did not gainsay any of the representations which were made about the extent of his wealth nor her absolute and fixed entitlement under Sharia law to inherit a very substantial sum of money. He described her as a "relaxed" witness who appeared comfortable in the knowledge that her future financial needs would be met, come what may.
- For my part, I found this to be an unfair attack on this witness. I accept that her memory may have failed her at times and she herself accepts that she cannot now recall much of the detail in relation to dates and some of the conveyancing transactions. She is nevertheless entirely clear in her own mind as to the strong impression which H had created in her own mind (as a result of things which he had said and done) that he was the beneficial owner of their home at 18SPM which was later to include 18A. She never saw the contents of the regular letters which arrived at the property from BCO. Whilst she knew of the existence of that company, she was never privy to its affairs. She has given clear instructions to her professional advisers about her understanding of the ownership structure and H's disclosure in advance of this hearing has, I accept, left many questions unanswered.
- H presented as a courteous witness. His professional background equipped him to deal well with the forensic investigation into his financial affairs as he was pressed in cross-examination by both Mr Peel and (to a lesser extent) Mr Marks. The thrust of the challenge to H's financial presentation to date fell principally to Mr Peel and, as W's leading advocate, he took on that task with a precision and forceful incisiveness which can only have come from a complete mastery of his case and the wealth of documentation it has generated.
- In terms of my assessment of H as a witness, it seemed to me that he, too, wished to see a final conclusion to this litigation which I accept has taken a considerable toll on him. There were times during the hearing when the children's future was being addressed when he was visibly moved. At times, he wept openly and I am satisfied that this was not mere artifice on his part. The distress which he continues to feel about his separation from his children is very plain whatever the underlying causes of that separation may be.
- In relation to the financial case, I have to say that I did not have the feeling that he had fully engaged with the issues or the evidence until their forensic unravelling during the course of this hearing. He appears not to have taken any time at all to look at the property particulars advanced by W and he had certainly given no particular thought to what his own needs are likely to be in future. I had the sense that, having put forward an offer which he considered to be suitable financial provision for W, he was content to let the process take its course and await the outcome of my judgment. He is clearly fixed in his belief that W's father has adopted an entirely misplaced and vindictive stance in relation to this litigation and the ongoing proceedings in Saudi Arabia. It is that same fixed belief as to the extent of his former father-in-law's wealth which appears to drive his case that W's claims in this litigation can and should be contained by reference to her future inheritance. In the open offer set out in his written evidence (to which I have referred earlier), I could find no reflection or acceptance of the contribution which W has undoubtedly made to date in terms of her role as wife and mother over some thirteen years of marriage, nor of the role which she will continue to make as the children's mother for some years to come.
- It is quite right to reflect at this point that midway through the hearing, Mr Todd QC revised his position and advanced a new and wholly improved offer on H's behalf. Instead of a three year licence to remain at 18SPM, he now offers her what is effectively a potential life interest in that property albeit subject to conditions. The three year restriction still remains in relation to the nanny's use of 18A but this is justified on the basis that, in three years' time, W will have no need for a full-time live-in nanny. Mr Marks has confirmed that H's mother and sister will support H in advancing that proposal and will take whatever steps may be necessary to ensure that, subject to any future remarriage or inheritance, W will retain exclusive occupation of what she has always regarded as the family home for so long as she wishes and, if necessary, to the end of her life. When I enquired whether that offer was intended to encompass the substitution of an alternative property should W's or the children's circumstances change in the future, both Mr Todd and Mr Marks confirmed on instruction from their respective clients that W would be entitled to move to an alternative property of equivalent value provided that she has a good reason for wishing to do so. In this event H's mother and sister have confirmed that they would give proper consideration to facilitating such a move and, in the absence of agreement, W would be entitled to apply to the court.
- I have already remarked upon the impression which H's mother, MB, made upon me. She was prepared to be quite open about her personal financial arrangements notwithstanding that they have no direct bearings on matters arising as between H and W. I accept that she was a woman of independent wealth as a result of various gifts from her father during his lifetime. Her financial independence became complete when she inherited her share of her late husband's estate some twenty-four years ago. She also inherited when her own father died in 2007.
- I accept that she was a truthful witness who volunteered without hesitation information about her own position (and, by implication, her son's position) when she was asked to explain which assets fell within the umbrella of the over-arching "family arrangement". In particular, I accept her evidence that, on her late husband's death and in strict accordance with his wishes, the three family members who are involved in this litigation have always treated those assets left to them as a pooled fund out of which their individual needs from time to time can be met. But MB was very clear that each was only entitled to a one-third interest. The intention to follow through and comply with her late husband's wishes is, in my judgment, also evidenced by her own actions. The benefit which H's father intended to confer upon his family is also reflected in the fact that she has, in effect, accelerated her children's own inheritance by pooling with her late husband's estate those assets which represent her separate inheritance from her own father (save for some business premises in Cairo which I understand to be still in part-ownership with other unrelated third parties who shared the commercial investment with her late husband whilst he was alive).
- I heard, too, from H's sister, the fourth respondent. She, too gave her evidence in a straightforward and courteous manner. She answered the questions put to her directly and without any apparent attempt to dissemble. She is married to W's cousin, PR, and I am satisfied that he has independent financial means which have enabled him to purchase their London property at PBC. She was not challenged in relation to this evidence and W accepted in her own evidence that her sister-in-law's husband had paid for the property from his own funds. On the basis of that evidence and acceptance by W, I am satisfied that this property does not fall into the "family arrangement" but is owned quite independently through an offshore vehicle known as B Investments Ltd. LB accepts that she has a one-third interest in her late father's inheritance and thereby in the assets which now comprise the "family arrangement". She told me that she and her husband were the first family members to view 18SPM since they looked at it with a view to purchasing it themselves. When they decided against proceeding, H became interested. At the time he was not engaged to W but was in a relationship with another woman who was a friend of his sister's. She had been aware of discussions between H and his mother about purchasing the property with funds from their late father's estate and had always been under the clear impression that it was bought as a family asset and held for each of them as to one-third equal shares. She confirmed that inherited funds were also used to purchase the lease extension. She accepts that to date she has listened to the views of her mother and brother as to investment decisions and has largely gone along with their wishes.
- The final two witnesses were professionals.
- Mr V is a solicitor with APS although I understand that he now acts for that firm as a consultant. He is 82 years old but appears to be in good health. As one would expect from a professional witness, he gave his evidence clearly and concisely. His relationship with the B family goes back to the 1970s. H's father had been his client at the time of the purchase of 19LTC. Mr V appears to have been retained by NB on the basis of something akin to a general retainer since he also advised in relation to matters of inheritance and estate planning. He still acts for BCO, the vehicle through which 19LTC was purchased. Indeed, it appears from correspondence which I have seen that he also acted for two of NB's brothers (H's uncles), at least one of whom had used the vehicle of a Liechtenstein Anstalt to acquire property in central London.
- He had prepared a statement dealing with his much earlier involvement with his former client, H's late father, and was very clear that the company was not the simple alter ego of H despite the fact the most of his dealings with the family since his father's death have been with H rather than his mother or sister. Mr V had specific discussions with NB about his estate and was given what he describes as "clear instructions" that after his death his client wanted to ensure that his wife and two children were to have an equal entitlement to the shares in BCO. He recalls discussions at the time with VD Bank (then the trustee of the BCO shares) about how this might be achieved. Thought was given to putting in place a declaration of trust in Jersey (where VD Bank was based) and to setting up a Foundation in Liechtenstein. By the time H's father died, nothing had been done to formalise his wishes as to the division of his estate.
- Mr V was involved in the administration of H's father's estate and he appears to have overseen the arrangements whereby, in March 1994 (some five years before H's engagement to W), H with his mother and sister signed an agreement with VD Bank whereby the shares in BCO were formally held on trust for each of them as "the Client" or, as Mr V describes the arrangement, "together as one". Within the material before me, I have seen a copy of that document [C/E:38]. When new trustees took over from VD Bank in 1996, Mr V wrote to Mr Y (a director of the new corporate trustee, Z Trust) to explain how BCO had been administered in the past. At that point in time, the only asset held by BCO was the property at 19LTC in South Kensington.
- At a time when H had decided, with his mother's and sister's agreement, to make an offer to purchase 18SPM, Mr V wrote to the vendor's solicitors providing details of BCO, as the purchaser [C/E:69]. As I have recorded earlier in this judgment, he made reference in his letter to the fact that "BCO Limited is a company controlled by AB and his mother and sister who are highly respectable Saudi Arabian residents". In his written evidence, Mr V explained that his direction in relation to BCO had always come from H although he had met his mother and sister; indeed one of the letters which I have seen concerning the purchase of 18SPM refers to a conversation with MB who had given some instructions in the absence of her son who was then in Saudi Arabia. In May 2003, H had asked Mr V to consolidate the various files he was maintaining in relation to the family into one simple file which was to be called "B Family". This was not possible because of internal accounting procedures but Mr V regards that instruction as indicative of how H saw the relationship between H, the family and himself. Whilst he was not directly concerned in the details of the financial relationship which existed between the three family members, he was clear in his understanding that, as "head of the family" after his father's death, H had the family's full authority to direct how BCO and its assets were managed. Mr V still acts for the company. It is evident from documents within the bundles (including the ledger entries within APS's files) that the funds required for the purchases of 18SPM and 18A emanated from H's mother and sister.
- Mr V has always understood that BCO maintained a separate corporate identity and he believes that H understands the importance of preserving its independent existence as a corporate entity. In this context, he points to a mandate which he was given by H to attend a meeting at which the leasehold enfranchisement of SPM was to be discussed. Mr V was clear that, as BCO's agent on that occasion, he was free to exercise an independent discretion (albeit having listened to H's own views) as to whether or not to join in the proposed scheme along with other residents in the mansion block. He told me in his evidence that corporate ownership of central London properties was, in his experience, extremely common within the non-domiciled community. Whilst being cross-examined by Mr Peel, he said that using the structure of a loan arrangement to put the company in funds to make a specific purchase was an entirely conventional procedure with which he was familiar in the course of his professional life. Until very recently there were significant tax advantages in holding property through corporate ownership. He was clear that 19LTC had never been personally owned by H's late father but rather by BCO and that property never fell to be considered as part of his English estate.
- He was asked about his understanding of the ability of the three family members to veto a decision in the event of disagreement between them. He said that he could not recall an occasion when the question of "voting" came up. His "guess" was that they would either act on a unanimous basis or on the basis of a majority decision. However, he told me that he was never privy to any private arrangements which the family members may have made between themselves.
- The last witness from whom I heard was Mr W. He was called by Mr Marks in his capacity as one of three directors of BCO. He has held that office since May 2003. He confirmed his understanding that the shares in BCO were held for the benefit of H, his mother and sister. All of his dealings have been with either Mr V or H. In terms of the company's status as a legitimate and separate corporate entity, he states that he has previously had to remind H that he is not an officer of the company and cannot sign documents on the company's behalf.
- He confirmed that BCO was both the legal and beneficial owner of the flats at 18SPM and 18A. The purchases had been funded by loans which were interest free. The quid pro quo in respect of that interest free status was that the beneficial owners of the shares (i.e. the family members) had been allowed to use the properties under informal licence arrangements. The obligation to maintain the properties (including 19LTC) fell to the family members as individuals and he was aware that various improvements had been made from time to time. More recently, the company has had to pay ATED (Annual Tax on Enveloped Dwellings) as a fiscal consequence of corporate ownership. However, those funds appear to have emanated from family sources (i.e. the beneficial owners of the shares) since the company had no funds or income from which to meet this liability.
- Whilst Mr W was not involved in the purchase of either 19LTC or 18SPM, he was in post as a director when 18A was acquired by the company. He regarded the loan arrangement whereby family funds were provided to the company to fund the purchase as an entirely normal arrangement for this type of corporate acquisition although he was aware that, in this instance, the purchase monies had been sent to the vendor's solicitors directly through APS. In relation to 18A, Mr W confirmed that the directors of BCO had agreed that, since the family members had provided the purchase funds, they should have a licence to occupy and use the property. The absence of any written agreement or licence document was not, in his view, unusual notwithstanding his knowledge of the existence of a written licence in respect of 19LTC. He said that the company had the right to terminate the licence but would be unlikely to take that step unless the directors became aware that the property was "being abused in some way". He confirmed that the company had never paid directly for any of the outgoings or running costs although if the family had stopped paying the outgoings in relation to either 19LTC or 18SPM/18A, the company would have no option but to recover possession and either sell or let either property since the company was without funds to meet such a liability. In relation to the extensive renovations undertaken by H and W at 18SPM, he was unaware that these had been undertaken although he said he would have expected to have been notified in advance of any major work at the property.
- Mr W struck me as an entirely straightforward witness. He clearly regards the properties at 18SPM and 18A to be corporate assets of the company of which he is a professional director. He accepts that the shares in BCO are held for the joint benefit of the three family members who are parties to this litigation but he sees their right to occupy the company's properties at both LTC and SPM as no more than the quid pro quo for the loans they provided. Whether that is correct as a matter of law is something which I shall have to decide in due course.
- On the whole, I found both Mr V and Mr W to be entirely straightforward and non-partisan witnesses.
C. Computation of the assets
- I turn now to deal with the issue of the nature and extent of the assets which are available to H in order to enable him to meet W's financial claims. It is important to stress at the outset of this section of my judgment that it is accepted by both Mr Peel and Mr Todd that this is a case which falls to be determined on the basis of an overall assessment of W's needs. Because the provenance of most of the available wealth in this case is inherited funds, it is common ground that this is not a sharing case. Nevertheless computation remains an important element of my assessment of W's award since she pursues her claim for a significant lump sum and wishes to receive outright capital to purchase a home as opposed to any ongoing entitlement to remain in residence at the former matrimonial home. Mr Todd resists that claim both in relation to need (on the basis that she can remain in the family home) and in relation to quantum. He has produced property particulars which suggest that she can buy a property in a slightly less central location for less than half of the £5.5 million which she seeks.
- In opening his case and as part of her overall needs, Mr Peel advances a claim of £2 million in respect of W's income needs. He accepts that, as a relatively young woman, she should not be entitled to a full Duxbury award based upon a lifetime entitlement to capitalised maintenance. Rather, he puts her claims on the basis of a need for 14 years' support to take her to the end of their youngest child's minority. The multiplier is based on the equivalent of that used in Fournier v Fournier  2 FLR 990. In 14 years' time, W's father will be 85 years old (he is now 71). Whether or not W's offer has been framed with her inheritance prospects in mind, I know not. But it seems to me reasonable to suppose that, if she has not already inherited by then, her entitlement is unlikely to be postponed for very long beyond that point. Even if her father survives into his nineties, as he very well may, he is unlikely to see her in a position of need as W herself accepted in her evidence. The point of central importance as far as this aspect of the case is concerned is that W's ultimate entitlement to inherit cannot be defeated by a contrary exercise of testamentary intention on his part. Under Saudi Arabian law, an equivalent of forced heirship means that her entitlement will be fixed: she will receive one-fifth of his estate upon his death subject to a 1/8th deduction if he has a surviving widow, but on the death of whom, W would also be entitled to a 1/5th share of her estate. Whilst I cannot speculate about the true extent of her father's wealth, he is – by common consensus – enormously wealthy and she is likely to inherit a substantial fortune on his death.
- As to the multiplicand, W relies upon a need of £175,000 per annum. This is significantly less than the budget which was attached to her Form E and the revised budget which appears at [B/C:266] of the bundles. That suggests a requirement as at 30 September 2015 of £373,608 per annum.
- By his revised open proposal on behalf of H, Mr Todd offers to meet that income need in full. H will pay her a lump sum of £2 million and that will be paid in cash. As will be evident from what I have already said about his own personal liquidity, he does not have access to funds of that magnitude from which to pay and will necessarily have to reach an accommodation with his mother and sister as to how part of this sum can be raised. Each of Mr Marks and Mr Todd accepts that I can, and should, make a lump sum order to reflect this aspect of W's needs-based claim. They recognise that there will inevitably have to be some discussion and equitable accounting between the family members to ensure that the interests of H's mother and sister are not prejudiced in any way. On Mr Todd's side of the argument, his agreement to pay this sum comes as part of his comprehensive package. In other words, his concession in relation to the £2 million lump sum is predicated on the basis that H is not required to raise further capital from his family in order to meet W's housing needs. These will be met, on his case, by allowing her to retain exclusive occupation (but not ownership) of the family home at 18SPM and 18A, albeit on terms as to her remarriage and/or inheritance.
- Thus, I turn now to the remaining issues in respect of computation. They are these :-
(i) Does the "family arrangement" which is said to exist as between H, his mother and his sister constitute what Mr Peel described as a "family store room" into which H can dip at will and, specifically, for the purposes of meeting a lump sum award in W's favour ?
(ii) What is the extent of H's interest in the pooled inherited funds held within the family arrangement ?
(iii) What is the true position as a matter of fact and law in relation to the beneficial ownership of 18SPM/18A ?
The "family arrangement" and H's interest in the pooled funds
The beneficial interest issue
- Having listened carefully to each of H, H's mother and sister, I am left in no doubt at all that their common intention is, and always has been since the death of NB, that they should each have a one-third beneficial interest in what is now held within the framework of the family arrangement. That includes the shares in BCO in respect of which there already exists a declaration of trust. I am entirely persuaded that, whatever his legal entitlement on the death of his father under Saudi Arabian domestic law, H renounced that entitlement at a very early stage. I heard some evidence that he had made an informal election to share equally with his mother and sister even before his father's death in 1991. The family was aware of the letter of wishes which had been drawn and signed some two years before his father's death. The evidence is not sufficiently clear for me to say with any certainty what the position might have been whilst H's father was alive but, following his death, I am entirely persuaded that there was a specific agreement between the three surviving family members to hold what he left to them on an equal basis. That was the clear import of the letter of wishes. MB refers in her statement to frequent discussions during which her late husband had emphasised his wish that there would be an equal division between her and their two children. He told her often that she could trust H to step into the role of head of the family to guide his mother in life as his father had done before him. In the final year of his life and whilst he was receiving treatment in the United States for a brain tumour, she recounts that her late husband emphasised his wish for both his children to complete their college education. It was also his wish that the children should acquire homes in Jeddah using funds which he would leave to her on his death.
- Her evidence is supported by Mr V's evidence, which I accept. He knew his late client very well having acted for him over the course of a number of years. He plainly had the complete confidence of H's father and it is clear that there were several discussions between lawyer and client on this topic and by way of consideration of forward estate planning.
- During the course of her oral evidence, MB told me that soon after her husband's death, they had agreed as a family to honour his wishes. She said that they have since acted as a 'team' and helped each other out, and they would continue to do so. In her eyes, ever since her husband's death, she has considered the three of them "as one". She is clearly devoted to each of her children and her love and respect for H is obvious. She regards him now as the head of the family and a source of cultural guidance and support. She told me, "I would not trust myself with anybody else but him". That said, as I have already observed, MB is an independently wealthy woman despite the fact that she has now agreed to "pool" most of that wealth within the existing family arrangement. She is not a woman who lacks financial sophistication in her own right and she clearly continues to exercise a natural matriarchal role within the family. She told me that she regarded herself as having a parental power of veto in respect of decisions relating to her late husband's inheritance. Before monies were spent, "all three of us need to agree; two of us is not enough".
- Whether or not H's mother does, in fact, have a right of veto over decisions relating to the application of funds within the family arrangement seems to me to be largely academic. I agree with Mr Todd in this respect. Together, H's mother and sister will always be in a position to outvote him if they disagree with a decision he would otherwise wish to make about the sale or realisation of assets within the structure.
- In relation to W's claim for £7.5 million, MB was clear in her view that she would not agree to release funds of this order for the purposes of enabling H to meet an obligation under a court order. She explained that she had her own needs and those of her family to consider and the existing funds would be needed to meet whatever contingencies might be thrown up by the future. Whilst she retains an interest in commercial premises in Medina which is outside the family arrangement, she told me that it produces the equivalent of a nominal ground rent. She does not work and is therefore dependant on capital to meet her own outgoings.
- That she will be required to assist in providing financial support to H in order to enable him to meet W's claims is not in issue: MB told me that she had spoken to W's father and had made it quite clear that he would be dealing with her in relation to a future settlement for his daughter. What is equally clear to me is the strong feeling which H's family members hold that W's father should be sharing in the responsibility for providing for his daughter, particularly in circumstances where the scale of his personal wealth is said to eclipse whatever resources are available to the B family. As I said during the hearing, these are English divorce proceedings and I must apply English law when I consider W's entitlement at the end of this marriage. Section 25(2)(a) of the Matrimonial Causes Act 1973 requires me to consider the resources which are available to each of the parties in the first instance. Whilst I shall need to consider the extent to which Thomas v Thomas  2 FLR 668 has an application to this case, the primary responsibility for meeting W's future needs is H's.
- I have already referred to the evidence I heard from H's sister who appears to follow whatever H and her mother decide. She was nonetheless clear that her own interest in the family arrangement was an equal one-third with her mother and brother.
- Whilst his concession came late in the day in terms of a full exposition of his assets, H not only accepted that he was entitled to a one-third interest in the family arrangement funds; he also accepted that his interest extends into the P Beach Villa, the French properties and the two properties in Jeddah which have been his mother's homes. One of those properties only came to light when H and his mother were asked questions about the sale of some SABB shares held within the family arrangement.
- To be fair to W and her team, there was no serious challenge by the end of the case to the extent of H's interest and, in his closing submissions, whilst Mr Peel left the option of a 58.33% interest for me to consider, he did not pursue the point with any forensic vigour.
- Thus, in relation to the first two questions which I posed above, I find that H has a one-third entitlement to all the assets which now represent the underlying wealth held in the assets which constitute the family arrangement. I find that his mother and sister each hold a one-third interest which represents their shares in the mixed pool of inherited wealth.
- As to whether H is able to "raid" this fund at will, my conclusion at the end of the evidence is that he cannot invade the wealth which belongs to either his mother or his sister. His late father's wishes were clear; the family has honoured those wishes to date and intends to respect them in future. Whilst MB struck me as a woman who would respect any orders which this court might make, she was, nevertheless, a witness who was quite clear as to her unwillingness to liquidate the family's property portfolio in order to release cash to H. 19LTC is the London base which the family has always used over many years. MB uses it whenever she comes to London. The Beach Villa in Jeddah and the apartments in the South of France have been used regularly by various members of the extended family, including W and the children, for summer holidays. The two remaining properties in Jeddah are properties nearer the city centre in which MB has made her home from time to time. One is subject to some sort of redevelopment or planning blight and the other has only recently been acquired.
18SPM and 18A
- I turn now to consider the third issue. Do 18SPM and 18A fall into the family arrangement so that H's interest through BCO is confined to one-third or is W correct when she says that he is the ultimate beneficial owner of both properties? In order to answer this question I shall need to analyse a number of possible scenarios. Does the company hold the legal title for his benefit under a constructive or resulting trust? If the trust route fails, is there a nuptial settlement which is capable of variation under s 24(1)(c) of the Matrimonial Causes Act 1973 ?
- In his closing submissions, Mr Peel quite properly pointed to a number of contradictions and inconsistencies in H's disclosure in relation to the manner in which the acquisition of 18SPM, 18A and the lease extension were funded. Whilst H accepted in his Form E that inherited funds had been used to acquire the properties, his solicitors were subsequently to write a letter in February 2014 in which they stated that Flat 18SPM and 18A were acquired with the benefit of funds which did not belong to H and the properties fell outside the matrimonial estate. That was not true. At the very least, it was not the whole truth. In his replies to W's questionnaire, he said that 18SPM had been purchased using monies provided by his mother and sister. He did not mention that he had a one-third interest in those funds. When pleading their Points of Defence, neither H's mother nor his sister said anything at all to alert W's solicitors to the fact that H had an interest in those funds. It was clear from the face of APS's internal ledger sheets that monies had been received from the family to fund the deposit, balance of purchase monies and stamp duty in respect of both 18SPM and 18A, but there was no explanation or confirmation that H was beneficially interested in those funds. The same applies to the leasehold extension. In his section 25 statement, served less than a month before the final hearing, H accepts that he had a one-third beneficial interest in the funds which were loaned to BCO in order to purchase both flats and the leasehold extension. Nonetheless, the full narrative account of these transactions did not materialise until each of the family members had given their oral evidence in the first week of the hearing.
- Mr Peel accepts that W did not know a great deal about the mechanics of these transactions: she has had to rely on what she has been told by H. She was plainly wrong in her assumption that the property was acquired with a mortgage advance which was subsequently paid off by H. But was she mistaken in her recollection of the conversation which she tells me they had early on in the marriage when H told her he had paid off the mortgage and she had expressed her pride in his having done so ? I do not think she was lying or mistaken in her recollection and I say this conscious that H was never asked by Mr Peel whether or not he had made such a representation to W. In much the same way as he had told her before their marriage that this was the flat he had just bought and, on another occasion, that it would be their home once married, I am satisfied that at some point he said something to her about a mortgage. Why should he refer to a mortgage ? I cannot answer that question. Whether this was to impress his new fianceé (later his wife) or to present his financial status in a positive light, I know not. However, I do believe that there was at the very least a sound anecdotal basis for W's subjective belief that the family home in which she lived her married life belonged to her husband.
- What, then, was the position as a matter of law ?
- The test for establishing constructive and resulting trusts is now well known and summarised in the Supreme Court's decision in Stack v Dowden  UKHL 17,  1 FLR 1858. Lord Walker of Gestingthorpe began his analysis of the development of the law in this area by a reference to the equally well known cases of Pettitt v Pettitt  AC 777, (1969) FLR Rep 555 and Gissing v Gissing  AC 886, (1970) FLR Rep 269. At 905B to C in the latter, Lord Diplock said this:
'A resulting, implied or constructive trust – and it is unnecessary for the present purposes to distinguish between these three classes of trust – is created by a transaction between the trustee and the cestui que trust in connection with the acquisition by the trustee of a legal estate in land, whenever the trustee has so conducted himself that it would be inequitable to allow him to deny to the cestui que trust a beneficial interest in the land acquired. And he will be held so to have conducted himself if by his words or conduct he has induced the cestui que trust to act to his own detriment in the reasonable belief that by so acting he was acquiring a beneficial interest in the land.'
- In the later case of Lloyds Bank plc v Rosset and Another  1 AC 107,  2 FLR 155, Lord Bridge of Harwich highlighted what he regarded as a "critical distinction" in relation to the circumstances in which a court is entitled to find the existence of an "agreement, arrangement, or understanding" between parties when the claimant does not hold or share in holding the legal title but nonetheless claims a beneficial interest. His lordship said at 132E to G that that if there is to be such a finding, it must:
'be based on evidence of express discussions between the partners, however imperfectly remembered and however imprecise their terms may have been.'
- He continued at 132H to 133B:
'In sharp contrast with this situation is the very different one where there is no evidence to support a finding of an agreement or arrangement to share, however reasonable it may have been for the parties to reach such an arrangement if they had applied their minds to the question, and where the court must rely entirely on the conduct of the parties both as to the basis from which to infer a common intention to share the property beneficially and as the conduct relied on to give rise to a constructive trust. In this situation direct contributions to the purchase price by the partner who is not the legal owner, whether initially or by payment of mortgage instalments, will readily justify the inference necessary to the creation of a constructive trust. But, as I read the authorities, it is at least extremely doubtful whether anything less will do.'
- In Stack v Dowden, it was that last statement in relation to 'direct contributions' with which Lord Walker took issue lacking, as it did, any reflection of the views (albeit conflicting) of the court in Gissing. At paragraph  of his judgment in Stack v Dowden, it was Lord Walker's view that direct contributions may not be necessary as an essential ingredient in the test relating to constructive trusts. In paragraph , he went on to state that labelling a trust as "constructive" or "resulting" may not add much to the debate as to its true nature. In reaching his conclusions, his lordship said that the law should take a wide view of what type of contributions are capable of counting as a contribution towards the acquisition of a property whilst remaining sceptical about the value of alleged improvements which are really insignificant, or 'elaborate arguments (suggestive of creative accounting) as to how the family finances were arranged' (see paragraph ).
- As Baroness Hale of Richmond stressed in her judgment in Stack v Dowden, the onus of establishing that the beneficial ownership of a property is different from the legal ownership lies with the person who asserts that to be the case: see paragraph . Thus, it is for W to prove that the legal and beneficial ownership of 18SPM and 18A have become separated. BCO holds the legal title and in order to establish that the company holds the property for H beneficially, she must demonstrate that the facts and the law as it applies to those facts lead to that conclusion on the balance of probabilities.
- Lord Neuberger of Abbotsbury provided this helpful summary of the law at paragraphs  and  of his judgment:
' Accordingly, in my judgment, where there are unequal contributions, the resulting trust solution is the one to be adopted. However, it is no more than a presumption, albeit an important one. Lord Nicholls of Birkenhead said in Royal Bank of Scotland plc v Etridge (No 2)  UKHL 44,  2 AC 773,  2 FLR 1364, at para , that the 'use of the term "presumption" is descriptive of a shift in the evidential onus on a question of fact', and that the 'use … of the forensic tool of a shift in the evidential burden of proof should not be permitted to obscure the overall position'. Although said in the context of undue influence, those words apply equally to the resulting trust presumption, in my opinion.
 In many cases, there will, in addition to the contributions, be other relevant evidence as at the time of acquisition. Such evidence would often enable the court to deduce an agreement or understanding amounting to an intention as to the basis on which the beneficial interests would be held. Such an intention may be express (although not complying with the relevant formalities) or inferred, and must normally be supported by some detriment, to justify intervention by equity. It would be in this way that the resulting trust would become rebutted and replaced, or (conceivably) supplemented, by a constructive trust.'
- Whatever arguments Mr Peel and Miss Sheridan may have within their reach in terms of the likely intention of the H and W to make 18SPM and/or 18A a family home in respect of which they, and only they, would have exclusive occupation with their children, and whilst it is now clear that H had an interest (with his mother and sister) in the funds which were used to purchase the property, there are, in my judgment, two fundamental obstacles in their way.
- First, in order to establish a constructive trust based upon a common intention, W must establish an agreement, or the court must infer a common intention, between H and the legal owner, i.e. the company. This is not a case where the legal titles to 18SPM and 18A are held in H's name. They are formally held and registered in the name of BCO. Each of H, his mother and his sister denies the existence of an agreement, arrangement or understanding that H was to own the beneficial interest in the property. Mr W, on behalf of the company, denies there was such an agreement or intention. His evidence was clear: the assets belong to the company. Unless the company can be fixed with an intention to hold the properties for H's benefit, in reliance on which H has thereafter acted to his detriment, there is no constructive trust. The fact that H was the individual point of contact for making the arrangements with the vendor and/or the corporate trustees and/or Mr V does not in any sense point to detriment. Neither, in my view, does the fact that he was paying the service charge and other utilities from his own funds: I have no doubt that the full market rental value which could have been achieved had the family not been in occupation would have exceeded these costs to a very significant extent. Payment of these expenses (and funding the cost of alterations at the apartment) in all probability conferred on H and W a benefit rather than a detriment when juxtaposed with the likely cost of renting the property over the 13 or 14 years during which the family has had exclusive occupation without paying any rent at all. The company, in its turn, does not receive any rent for their occupational use, but neither is it required to pay interest on the loans made available to acquire the properties. For its part, the company benefits from the capital appreciation in value.
- Here, all that W can point to in terms of the evidence are things said to her by H. Even if he represented to her in clear and unequivocal terms that he owned the flat, that would not necessarily have made it so as a matter of law. Her 'understanding' or 'assumption' in this respect may have been genuinely held on a subjective basis but, without more, such understanding does not lead to even the basis of a common intention trust. All those involved in the agreement, arrangement or understanding must have the same intention. What is abundantly clear from the evidence is that none of the company, H, his mother and/or his sister intended that 100% of the beneficial interest (or any other percentage) should enure for his exclusive benefit. Indeed, the evidence which I heard from Mr V points in entirely the opposite direction. He told me that he had on occasions to remind H about the company's separate corporate personality and the fact that he was not authorised to act as the company's agent.
- What then of a resulting trust ? The problem here is that the funds which were made available to the company for the acquisition of the properties were provided by way of formal loans to the company. H did not fund those loans alone; monies came from the pool of inherited funds in which he then held an undivided one-third share. Mr Peel and Miss Sheridan submit that these "loans" were 'pure form'. I do not regard the fact that they were unsecured and interest free as pointing towards "sham" arrangements for the reasons I have explained above. I agree that it is a curious fact that Mr W, as a director of the company, was never informed about the internal renovations which were undertaken. But that fact alone has to be examined as part of an holistic appraisal of the status of the "loans".
- W's case has never been pleaded in terms that the loans were "sham" transactions despite the clear requirement that it should have been had she been intending to pursue the point: see Munby J (as he then was) in A v A  EWHC 99 (Fam),  2 FLR 467. Precisely the same mechanism was used when 19LTC was acquired by BCO and W does not seek to impugn the bona fides of those arrangements.
- Within the papers there are various contemporaneous documents which provide support for these being genuine loans to the company (including the Minutes of board meetings convened by BCO's directors in advance of the purchase of 18SPM [C/E:62] and 18A [C/E:107]). I have also seen letters from Z Trust Company Ltd, the trustee, dated 15 September 1998 and 12 February 2003 confirming the loans [C/E:64, 83]. That the company was intended to hold the legal title and the beneficial interest in the properties which it acquired is also apparent not least because, if it did not, its (entirely legitimate) tax avoiding and tax saving purpose would fail. This was not a situation where the company was in any sense a mere donee of the properties, as was the case in Prest v Petrodel Resources Ltd & Others  UKSC 34,  2 FLR 732. It is true that there was never a formal deed of loan signed by the lender and/or the directors but the Minutes of the board meetings make it clear that these funds were intended to be treated as formal loans and I accept the evidence of Mr W that this is how they are still regarded by the company. In Prest, Lord Sumption made it clear in his judgment that, had there been evidence which showed that Mr Prest had provided the money to the company by way of loan or capital subscription, the company which held the legal title would have been the beneficial as well as the legal owner of the property: see paragraph  at 759.
- All turns on the facts in any given case. As Lord Sumption said at paragraph 52 of his judgment in Prest:
"Whether assets legally vested in a company are beneficially owned by its controller is a highly fact-specific issue. It is not possible to give general guidance going beyond the ordinary principles and presumptions of equity, especially those relating to gifts and resulting trusts. But I venture to suggest, however tentatively, that in the case of the matrimonial home, the facts are quite likely to justify the inference that the property was held on trust for a spouse who owned and controlled the company."
- I regard as irrelevant the fact that the funds for the purchase did not come directly from BCO's bank account since in conveyancing situations a commercial mortgage advance will more often than not be sent directly by the lender to the purchaser's solicitor. The principle obstacle in W's path, however, is that on any view of the facts in this case H neither owned nor controlled the company.
- For all these reasons, I have reached a clear conclusion that W's case in relation to the existence of a constructive and/or resulting trust in relation to 18SPM/18A must fail. The company, BCO, does indeed hold the legal and beneficial titles to these properties. As I see it, that is the only conclusion open to me on the basis of the evidence.
Is there a nuptial settlement which is capable of variation under s 24(1)(c) of the Matrimonial Causes Act 1973 ?
The nuptial settlement issue
- In the absence of a trust, W seeks to advance her case in relation to 18SPM and 18A on the basis that the arrangement constituted a 'nuptial settlement' for the purposes of s 24(1)(c) of the 1973 Act and, as such, I have a statutory power to vary the terms of such settlement.
- The first step is to identify property or rights which might fall into such a nuptial settlement.
- Each of Mr Todd and Mr Marks accepts that the informal licence which was granted to H and W by the company in terms of their occupation of the properties in SPM is capable of constituting a nuptial settlement (which is itself capable of variation) provided that it fulfils the legal test set out in Brookes v Brookes  2 FLR 13. In his judgment, Lord Nicholls of Birkenhead said this at page 19:
"In the Matrimonial Causes Act 'settlement' is not defined, but the context of s 24 affords some clues. Certain indicia of the type of disposition with which the section is concerned can be identified reasonably easily. The section is concerned with a settlement 'made on the parties to the marriage'. So, broadly stated, the disposition must be one which makes some form of continuing provision for both or either of the parties to a marriage, with or without provision for their children. Conversely, a disposition which confers an immediate, absolute interest in an item of property does not constitute a settlement of that property. The statutory provision is concerned with an order varying the terms of a settlement. This would not be an altogether apt exercise in relation to property given out-and-out and belonging to one of the parties to the marriage as his or her own absolute property. The context does not require that outright gifts of this nature should fall within the scope of the variation provision. In such a case, the appropriate order on the dissolution of the marriage, if an order is needed in respect of the property, is a property transfer or property settlement order.
Beyond this the authorities have consistently given a wide meaning to settlement in this context, and they have spelled out no precise limitations. This seems right, because the approach accords with the purpose of the statutory provision. Financial provision that is appropriate so long as the parties are married will often cease to be appropriate when the marriage ends. In order to promote the best interests of the parties and their children in the fundamentally changed situation, it is desirable that the court should have power to alter the terms of the settlement. The purpose of the section is to give the court this power. This object does not dictate that 'settlement' should be given a narrow meaning. On the contrary, the purpose of the section would be impeded, rather than advanced, by confining its scope. The continuing use of the archaic expressions 'ante-nuptial' and 'post-nuptial' does not point in the opposite direction. These expressions are apt to embrace all settlements in respect of the particular marriage, whether made before or after the marriage. In this connection, it should be noted in passing that a settlement may be made in respect of a particular marriage even though in certain circumstances the wife or husband by a subsequent marriage might be the person to take."
- Later, at page 20, his lordship said this:
"One feature of the power of the court under the section is to be noted. The section gives the court power to vary a settlement. Inherent in this provision is the notion that the court's jurisdiction extends to all the property comprised in the settlement. Thus it includes any interest the settlor himself thenceforth may have in the settled property by virtue of his own settlement. Further, the court's power is not confined to varying the interests of the parties to the marriage under the settlement. The power includes, for instance, the interests in the settled property of children or, more widely, of others under an old-fashioned protective trust. Blood v Blood  P 78 is an example of the former, and Marsh v Marsh (1877) 47 LJP 34 of the latter. Conversely, it is also implicit in the section that the court's power does not extend to property which is not part of the settled property. In some cases, of which Dormer v Ward  P 20 is an example, nice questions may arise over whether property is or is not brought into the settlement."
- A more recent example of the exercise of this power can be found in N v N and F Trust  EWHC 2908 (Fam),  1 FLR 856. In that case, Coleridge J was dealing with a case at the heart of which was a contention by the wife that the parties' former matrimonial home was the subject of an ante-nuptial settlement such that the court's powers under s 24(1)(c) of the 1973 Act were engaged. The property in Southampton was purchased by a Bahamian company, all the shares in which were owned by a trust in respect of which the husband was one of the beneficiaries. The parties occupied their home under the terms of an assured shorthold tenancy which had been granted to them by the trustees. The wife's case was that the property had been purchased in direct contemplation of their impending marriage and, on purchase, they had acquired a licence to occupy it as a matrimonial home. That licence, she argued, was settled on them indefinitely and the grant of a tenancy by the trustees did not alter the fundamental relationship of trustee and beneficiary which pre-dated the grant of the tenancy and continued to exist afterwards. In the circumstances of that case, Coleridge J granted the wife the declaration which she sought and found that the arrangement constituted an ante-nuptial settlement capable of variation under s 24(1)(c). In directing himself as to his task, his lordship said this at para 33:
"My task is to consider what the real substance of the arrangement was which governed this property. The authorities make it clear that I should consider the question broadly and ask myself whether or not it was an arrangement which made ongoing provision for the husband, wife and/or the child in those capacities. Motive is irrelevant."
- And so it is that I import that question into my own task when I examine the true character of the arrangement which was put in place for H and W in relation to 18SPM and 18A.
- On behalf of W, Mr Peel contends that 18SPM was bought at a time when H had shown W the apartment and told her that they would live there together because "we both knew where our relationship was going" (per W). The nuptial element, he submits, arises from the common intention to live there together after marriage. Similarly, 18A was bought during the marriage as part of the property unit. W's evidence as to its use thereafter is set out in her written statement. She says:
"Once Flat 18A was habitable, it became part of our family arrangements and was an overspill property for Flat 18, with staff, family members and the children spending time there both during the day and overnight. It was never formally rented out to anybody else." [C:79]
- That statement, which was not subject to any challenge by H despite the fact that more recently it appears that the nanny has made most use of the apartment, appears to impress upon the arrangement a sufficiently nuptial element to bring it within the scope of s 24(1)(c). Indeed, it is accepted by Mr Marks on behalf of the company that a substantial part of the provision to be made for W should be reflected in an extension to her licence to stay at 18SPM and 18A (subject to a three year extension in relation to the latter).
- In their opening written submissions, Mr Todd and Mr Lewis contended that there was no nuptial element attached to the ownership of 18A and thus it was "unassailable" in these proceedings. It was argued that being next door or being an "overspill" to the main family home does not merge it into being some part of some other nuptial settlement, if one were found to exist in relation to 18SPM. That document was produced before the concession was made by W in cross-examination that she did not become engaged to H until a date in 1999, some months after the purchase of 18SPM in October 1998 and at a time when he was apparently involved in a relationship with someone else.
- Be that as it may, Mr Todd makes the valid point that the existence of a nuptial settlement formed no part of W's pleaded case in July 2014 but comes more than a year and a half after her original claim in Form A. Her formal application to amend her Form A was not considered until 27 February 2015.
- It is accepted now by all parties that there was a licence granted to H and W at the time they took up occupation in 18SPM and separately when that occupation extended to 18A on the acquisition of the second flat. That was acquired some ten years later no doubt, in part, to meet the demands of their growing family. Mr W confirmed in his evidence that the parties' right to occupy both properties flowed from an informal licence granted by the company through its directors. In the course of exchanges which predated the imminent acquisition of 18A, he wrote a letter dated 2 November 2007 in which he referred specifically to the existing licence to occupy 18SPM [B/C:127].
- When the case began, H's position was that W's case in relation to the existence of a nuptial settlement, put at its highest, could only relate to the informal licence granted by the company, such licence being terminable at will. In his written position document, Mr Todd had argued that the licence itself could not be extended so as to change the nature or character of the nuptial property. By way of example, he said "it would be like a nuptial settlement owning a 20 year lease and the court directing that the 20 year lease should be transferred to the Wife (which is plainly permissible) but also that the lease should be extended to 99 years (which is plainly not)" : see paragraph 22. In this context, he took me to a passage of Munby J (as he then was) in Ben Hashem v Al Shayif  EWHC 2380 (Fam),  1 FLR 115. In that case, his lordship quoted with approval the passage of Lord Nicholls' judgment in Brooks v Brooks which I have already set out in paragraph 102 of this judgment. In Ben Hashem v Al Shayif, Munby J went on to consider the decision in Dormer v Ward in some detail. Together with his analysis of the later case of Hargreaves v Hargreaves  P 42 which concerned the nature of the property held within a marriage settlement, his lordship held that the wife's case in Ben Hashem that a life interest in a property (or even a bare licence) could be enlarged by an application of s 24(1)(c) so as to draw into the settlement the entire reversionary interest of the settlor to be wrong in law.
- Having undertaken a lengthy review of the relevant authorities, his lordship asked the rhetorical question : "How then can and should I exercise my discretion ?" (see paragraph ). It appeared that there was then very little modern authority on the point which threw any light on how the discretion under s 24(1)(c) should be exercised save for five reported cases since 1973: in addition to Brooks there was Cartwright v Cartwright (1983) 4 FLR 463, E v E (Financial Provision)  2 FLR 233, C v C (Variation of Post-Nuptial Settlement: Company Shares)  EWHC 1222 (Fam),  2 FLR 493, and Mubarak v Mubarak  EWHC 220 (Fam),  2 FLR 364. At paragraph  of his judgment, his lordship provided a very helpful "road map" which I set out in full below.
" Surveying all this learning, identifying what is of enduring significance whilst ruthlessly jettisoning what has become more or less irrelevant in modern conditions, I can perhaps summarise matters as follows:
(i) The court's discretion under s 24(1)(c) is both unfettered and, in theory, unlimited. As Miss Parker put it, no limit on the extent of the power to vary or on the form any variation can take is specified, so it is within the court's powers to vary (at one end of the scale) by wholly excluding a beneficiary from a settlement, to (at the other end) transferring some asset or other to a non-beneficiary free from all trusts. She points to E v E (Financial Provision) and C v C (Variation of a Post-Nuptial Settlement: Company Shares) as illustrations of property held on trust being transferred free from any trusts to the applicant, in E v E a sum of £50,000 and in C v C shares in a Cayman company.
(ii) That said, the starting point is s 25 of the 1973 Act, so the court must, in the usual way, have regard to all the circumstances of the case and, in particular, to the matters listed in s 25(2)(a)-(h).
(iii) The objective to be achieved is a result which, as far as it is possible to make it, is one fair to both side, looking to the effect of the order considered as a whole. [my emphasis]
(iv) The settlement ought not to be interfered with further than is necessary to achieve that purpose, in other words to do justice between the parties.
(v) Specifically, the court ought to be very slow to deprive innocent third parties of their rights under the settlement. If their interests are to be adversely affected then the court, looking at the wider picture, will normally seek to ensure that they receive some benefit which, even if not pecuniary, is approximately equivalent, so that they do not suffer substantial injury. As Sheldon J put it in the passage in Cartwright which I have already quoted: 'if and in so far as [the variation] would affect the interests of the child, it should be permitted only if, after taking into account all the terms of the intended order, all monetary considerations and any other relevant factors, however intangible, it can be said, on the whole, to be for their benefit or, at least, not to their disadvantage.'
- Thus, I have to look at this issue and the existence or otherwise of a nuptial settlement by drilling down into the real substance of the arrangement under which H and W occupied both 18SPM and 18A. Attaching to it labels does not assist, in my view. First and foremost the arrangement must have some element or character of nuptuality in order to qualify as a candidate for variation under s 24(1)(c) of the 1973 Act. Given the manner in which the oral evidence developed as the case unfolded, it was this aspect which began to trouble me in relation to 18SPM. W's evidence in relation to the precise timing of her formal engagement to H was that he went to see her father to seek permission to marry her in April 1999. That meeting took place very soon after he had first informally raised with her the possibility of marriage [see transcript – 17 November 2015 – at page 29, lines 11 to 23]. The purchase of 18SPM had been completed by the company some six months earlier on 9 October 1998.
- The precise time line in relation to the development of W's early relationship with H is not easy to discern from the evidence. In her first written statement, W said this:
"In September 1998, when AB and I were engaged, he took me to see the property at 18SPM. He told me that he had just bought this property and that it would be our family home."
- I know not when this couple's romantic relationship began; they clearly shared a social circle but I accept (as does W) that in October 1998 H was in fact involved in another relationship with a friend of his sister's. If there was a period during which he was seeing this lady and W, I cannot extrapolate from the evidence when his relationship with W became committed and focused on marriage. All I can say is that, according to W's evidence, he first mentioned marriage shortly before April 1999 when he went to see her father. I think it is highly unlikely that any representations which he made to W to the effect that 18SPM was to be their family home took place as early as September 1998. W clearly links in her own mind these statements with her engagement and that did not occur for some months after the acquisition of 18SPM. Thus there was a real question in my mind as to whether or not the purchase of that property was impressed with a sufficiently nuptial character to engage the provisions of s 24(1)(c). Both Mr Marks and Mr Lazarides accept that the licence to occupy could be said to constitute a nuptial settlement which was susceptible to the court's powers under S.24(1)(c) of the 1973 Act but the ownership/ title to the property was not such a settlement. It seemed that I was not going to be required to grapple with the answer to that particular question since, by his latest open offer, Mr Todd accepts on H's behalf that W should be entitled to remain in occupation of 18SPM and, subject to conditions, for perhaps the remainder of her life should her father survive her and/or in the event that she remains unmarried. Whilst the mechanics of that proposal have yet to be reduced to detailed written terms, it seems to me that they must inevitably involve the agreement of the trustees and the wider family not to terminate her licence save in those eventualities (for otherwise the offer would be meaningless).
- Nevertheless, having considered the matter, I take the view that there is an alternative interpretation of these arrangements in relation to 18SPM and one which would engage the court's powers under s 24(1)(c) of the 1973 Act. This approach assumes that the 'nuptial settlement' is construed to be the grant of the licence itself at the time when the parties took up occupation of the property. The company had owned the property since October 1998. The directors were aware, following their marriage, that H and W wished to occupy 18SPM as a marital/family home. H and W moved into the property in June or July 1999. No one suggests that their occupation was unlawful and/or that they did not have the company's permission to take up occupation. Therefore, it must be assumed that the licence to occupy, albeit lacking formalities, took effect from that date. Applying the test adopted in Brooks v Brooks, it seems to me that it does not strain an objective construction of language to say that the disposition (i.e. the grant of a licence to occupy in June or July 1999) is one which made some form of continuing provision for both or either of the parties to the marriage, with or without provision for their children. In this way, rather than rely upon some consensual arrangement, it seems to me that I would be entitled to make an order under s 24(1)(c) of the 1973 Act in relation to 18SPM in the event that I considered it an appropriate exercise of my discretion taking into account all the various factors I must consider under s 25 of that Act.
- Turning now to the arrangement in relation to 18A, in my judgment this does prima facie fall to be considered in the context of the court's powers under s 24(1)(c) since (a) the acquisition of that property by the company occurred during the marriage; and (b) the flat appears to have been acquired precisely because of its proximity to 18SPM and the opportunity it provided the family to 'expand' into the additional space so as to include not only accommodation for other family members from time to time but also for the nanny. It seems to me that those factors alone provide the nuptial element explained in Brooks in terms of the provision of a continuing benefit for both or either of the parties to the marriage and, by this stage, for their children. I disagree with Mr Todd's characterisation of the acquisition as being without a nuptial element. Whilst I accept for the reasons I have set out above that the property belongs beneficially to the company, it is clear that the decision to purchase 18A was driven by H (albeit supported by H's mother, sister and the company which received by way of loan the necessary funds to acquire the property). There is no dispute that these funds emanated from inherited monies which formed part of the family arrangement.
- When that property came onto the market for sale, the family (which then consisted of H, W, 7 year-old IK and 5 year-old AK) plainly formed the view that they could make good use of the extra accommodation provided by 18A as an extension to their home. It was not purchased solely as an investment vehicle but has always been occupied by the family and/or their staff. When the family was abroad, it remained empty, as did 18SPM.
- The company granted them a licence to occupy the property following completion of the purchase. I can see no reason at all why the grant of this licence cannot be construed as a further nuptial settlement capable of variation under s 24(1)(c) of the 1973 Act.
- The proposal made by Mr Todd (supported by Mr Marks on behalf of his clients) in relation to an extension of the licence in relation to 18A is limited to a further three years rather than a potential life interest subject to conditions. I propose to reserve my comments on this aspect of the proposal to a later stage of my judgment when I come to consider W's reasonable needs.
- That, then, deals with the issue of the nuptial settlement. Having found that the legal and beneficial interests in both 18SPM and 18A lie with the company, it must follow that the subject matter of both settlements is a licence to occupy the properties.
- Thus I turn now to the remaining aspects of computation.
The computation issue
- I have already referred earlier in this judgment to the manner in which the financial landscape of this case only emerged with any clarity on the fourth day of the hearing. It was only then that the existence of further bank accounts in London and in Switzerland and two further properties within the family arrangement came to light. These formed part of the pool of family assets in which H, his mother and sister have a one-third entitlement. Thus it was that the bottom line of the asset schedule increased from £1.756 million on H's case to just under £8 million by the time Mr Todd came to close his case.
- There remain disputes as to the precise values to be attached to some of the assets and, insofar as it is necessary, I shall deal with these. However, I bear in mind that a precise computation of H's resources is not required in a case where all agree that this is a needs-driven claim. Much of the inherited wealth represented by H's undivided share in the family arrangement is held in a property portfolio. At least two of those properties are made available, as they have been historically, for the benefit of the wider family members for holiday periods and H's mother has made it clear in her evidence that neither she nor his sister will agree to a liquidation of the portfolio (or part of it) to assist H to raise the £7.5 million which W seeks. What she is (and they are) prepared to do is to relinquish control over 18SPM for the foreseeable future (and 18A to a lesser extent) and forgo the possibility of what would no doubt be a valuable commercial income stream. On their proposal, W will pay no rent for her occupation of the former family home. H sees his future in Dubai or elsewhere in the Middle East and he will need to provide a home for himself and his new family in due course. Thus, whilst the family will eventually benefit from any capital appreciation in the central London market, their opportunity to realise that investment may well be many years hence. That, in itself, represents a considerable fetter or restraint on their respective entitlements under the family arrangement.
- Equally, I bear in mind that it is not possible at this stage to include even a notional figure on the asset schedule in respect of W's potential inheritance from her father whether on a discounted - or any other - basis. That it will come in due course if she survives him is not in doubt. That it is likely to be a very substantial inheritance is also clear, although I cannot at this stage speculate upon the precise scale of the wealth which will become available to W, nor the timing of its receipt. Anecdotally, Mr Marks and Mr Todd have referred to an entitlement of some £100 million. I know not whether W's father is indeed worth £500 million as has been suggested.
- In his written evidence, H said this about the scale of his father-in-law's wealth:
"[W]'s father is a man of huge wealth. Following the death of his father ([W]'s grandfather), he is head of the R family, who are very long-standing industrialists in Saudi Arabia. They are a family of equivalent standing to the Rothschilds in this country, deriving their wealth originally from RCO, Saudi Arabia's oldest organised commercial enterprise dating back to 1845. Books have been written about them, and there is a website which lays out the vast range of their enterprises. The top holding-company is Z investments, which holds a variety of subsidiary industrial and chemical companies, including maritime services, jewellery, tourism, commercial supply (particularly engineering oils), packaging and real estate. When the Kingdom of Saudi Arabia introduced the principle of company registration, the very first company so registered was ARCO in honour of their contribution to the Saudi state; not least their installation of the very first broadcasting station in Jeddah in the 1940s. The family holiday home is a chateau in the South of France, conservatively valued at US$25m. They have significant financial interests in this country, with a dedicated liaison office managed by E Ltd in London." [B/C:107]
- W's father has not come to court to give evidence, despite W's confirmation that he was aware that he was required for cross-examination. When the hearing started, he was in Saudi Arabia. W spoke of his need to conserve his time in this jurisdiction since he appears to operate under what is commonly referred to in tax parlance as "the 90 day rule". There was no offer to give evidence by means of a video link with the court and thus I can do no more than speculate as to the true extent of this gentleman's wealth. It would not be permissible for me to put any clear figure to, or bracket around, his likely wealth although it is clear that he is an extremely wealthy individual. In this context, the important point is that W will inherit wealth in due course and presently has an indefeasible entitlement to that inheritance. When I come to consider her future needs, I shall also have to consider the extent to which financial support during her father's lifetime is likely to continue.
- 18SPM has an agreed value of just under £5 million. There is no mortgage. After allowing for costs of sale and ATED-related CGT, the net equity is £4,542,160. 18A is agreed to be worth £1.7 million and, on the same basis, has a net equity of some £1,579,280. I am told that Hamptons have advised that the total marriage value arising if the two apartments were sold together would be £6.725 million gross. According to the evidence of the family, there is not going to be a sale in the foreseeable future and, in the light of my findings in relation to the beneficial ownership of the property, I have no power under the 1973 Act to order a sale. Thus, for these purposes I ignore any potential uplift in respect of marriage value. H's entitlement to one-third of these assets derives not from any direct interest in the properties but through his interest in BCO's shares. Thus, the presentation on the combined asset schedule is a "shorthand" representation of the position. Nevertheless, I accept it as a broadly accurate representation of the potential value of his share in 18SPM/18A in the sum of just over £2 million.
- In addition he has, through BCO, a one-third interest in his mother's London base at 19LTC. Allowing for costs of sale and ATED-related CGT, that interest is likely to be worth c. £1.34 million.
- That accounts for the London portfolio of properties; I am satisfied that the home owned by H's sister and her husband forms no part of the family arrangement.
BB Road, Jeddah and the Beach Villa in P District
- In his Form E, H asserted a one-third interest in the Villa at BB Road in Jeddah. He stated that the property had been purchased in January 2010 with a loan from his mother. On the basis that the property was worth SAR3 million gross, he attributed to his one-third interest a value of just over £163,000. This was the property into which the family moved when they relocated to Jeddah in the late summer of 2009 following a period when H and W were living separate and apart from one another. The loan of US$2 million from H's mother was said to have been made contemporaneously with the purchase in January 2010.
- Some eight weeks later, in February 2014, H's solicitors disclosed that the property had been transferred to his mother. In support of that contention H produced with his replies to questionnaire a copy of an agreement. That document recorded the debt of US$2 million owed by H to his mother and her willingness to accept a transfer of the legal title in part-satisfaction of that debt. The agreement is silent as to how much, if any, was then considered to remain outstanding. There is some ambiguity on the face of the document as to whether or not the true intention was that the transfer of the title would expunge the entire debt: there is a reference in paragraph III of that document to H agreeing "to settle all that is necessary by transferring said real property to [his mother] within the next few months" [C/E:166]. In any event, this transaction never materialised.
- On 22 September 2015, less than two months before the start of the final hearing, H's solicitors wrote to W's solicitors to say that he had transferred the legal title to the BB Road property to his sister and her husband (W's cousin) by way of part-payment of a loan owed to him. No documents have been produced by way of evidence although it seems that his sister has now taken up occupation in the property and uses it as her base in Jeddah whilst she is staying in the Kingdom.
- By the time H was cross-examined by Mr Peel about this property, he accepted that the arrangement with his mother was little more than a transactional device with the same fund of money moving around in circles. The sequence appears to be as follows. H had identified a property he wished to purchase for the purposes of the family's move to Jeddah in 2010. He believed that move would be a permanent relocation for the family. He had approached his mother who had sanctioned the purchase. She made him a loan of US$2 million in order that he could acquire the property. He accepts that this money came from the "pooled" cash funds which she controlled, part of which was impressed with his one-third interest. Thus, as was the case with 18SPM and 18A, the family having agreed upon a purchase, pooled funds were made available to enable the purchase to proceed. H accepts that the legal title was originally put into his sole name notwithstanding that he regarded it as part and parcel of the wider family arrangement.
- The US$2 million has not been repaid to his mother but that matters not in my view since the "loan" was no more in reality than a means of channelling family funds into the acquisition of an asset in which they all now consider themselves to be one-third beneficial owners. In accordance with the manner in which they acquired 18SPM and 18A, the ownership of the property by H did not, and does not, disturb the underlying reality which was, as I find, that each of H, his mother and sister intended that the property would be held for them beneficially in equal shares.
- What then of the alleged transfer of BB Road into the name of his sister and brother-in-law ?
- From H's oral evidence, it became apparent that this transfer may not yet have been completed. (He said in cross-examination, "It is happening as we speak".) Whilst this may go some way to explaining the absence of documentary evidence relating to the transfer, it is H's case that such transfer is intended to expunge a debt of UAE Dirham 7.5 million (c.£1.325 million) which he owes to PR, his brother-in-law. The debt is said to arise out of a failed property investment in which H was persuaded to become involved in 2008. He accepts that W knew nothing about it. The development project related to a new development in Dubai called the VBO. H agreed to invest but did not have the money to put up so his brother-in-law lent him his "stake". The development was never completed and the developer became insolvent. H told me that his brother-in-law had been litigating in Dubai for over eighteen months in relation to the loss of their investment. Since H no longer had the need for a home in Jeddah, he said he had offered to transfer the BB Road property to his sister and brother-in-law in part payment of the debt. On H's case a sterling sum of c. £878,000 remains outstanding. There is no other evidence in relation to this debt apart from what H tells me. I have nothing from his brother-in-law and no evidence as to the ongoing litigation in Dubai. H told me during the course of his oral evidence that these transactions took place in 2010 at a time when he regarded himself as divorced from W under Sharia law. He rejected Mr Peel's suggestion that this liability was simply a way to reduce his asset base in the context of the English divorce proceedings. He explained that this was a very common way of doing business in Saudi Arabia where mutual trust is perhaps more important than a paper trail.
- There is no evidence whatsoever apart from H's evidence (supported to some extent by his sister) about these transactions or the debt due to PR. I know not whether there is some prospect of recovery in the ongoing litigation in which that gentleman is currently involved. I do not know if it is some form of class action on behalf of several investors. I cannot tell if H stands to make good any of his losses and thereby reduce the debt which he says is owed to his brother-in-law. The disclosure in relation to the BB Road property is unsatisfactory, to say the least. Further, the parties do not agree upon its value. W contends that it is worth SAR6.58 million (c.£1.16 million); H says it is worth SAR3 million (c.£528,000). I shall return to valuation issues shortly.
- In my judgment, H was not lying to me about the existence of some sort of commercial arrangement with his brother-in-law but I have precious little in terms of evidence to substantiate what he tells me. His sister was able to add little to this aspect of the case. She told me that she and her husband were comfortably off and had financial means independent of her extended family wealth. Whilst she remembers hearing something about a project called the VBO, she said that she never involved herself in her husband's business affairs. As to the transfer of the BB property into their joint names, she said that this was a matter for H and her husband. She accepted nevertheless that she regarded the property as falling within the umbrella of the family arrangement since family money emanating from her late father's inheritance had been used to purchase the property.
- The liability which H says he has incurred to his brother-in-law appears on the asset schedule in the sum of SAR7.5 million or £1.325 million. That is a significant sum even in the context of this case. At the very least, H's approach to proving the debt as part of his financial presentation to this court has been cavalier. I simply do not have a sufficient evidential foundation for a finding that this is a "hard" debt in respect of which repayment will be demanded in the foreseeable future. I am certainly not satisfied that I should treat the BB Road property as having been "removed" from the family arrangement. I am reinforced in this view by the fact that the terms of the family arrangement and the clear understanding between its members would necessitate H's mother's consent to alienating the property from the family's portfolio. There is no reliable evidence that such consent was ever forthcoming. Thus, for present purposes, I am proposing to treat whatever is owed to PR as a "soft" debt and one which H is not going to be called upon to repay for the foreseeable future. PR is MB's son-in-law and, whilst there is nothing to suggest that she was involved in the arrangements between H and her son-in-law, she seems to me to be a woman who is quite capable of expressing her views very clearly. I do not discount this liability per se but H has failed to satisfy me that it should be deducted as a hard liability on the asset schedule. I accept that at some stage in the future, there may have to be some financial reckoning between H and his brother-in-law but I am not persuaded he will be required to pay hard cash now or in the foreseeable future. Whether the family decide to release the BB Road property from the family arrangement in satisfaction or part-satisfaction of that debt must be a matter for them but for present purposes it remains "on the balance sheet" to the exclusion of the sum claimed in respect of the debt.
- The title to the BB Road property remains in H's name. All the family members from whom I heard agree that, regardless of whether his sister is now in occupation, it falls to be considered as part of their family arrangement. If W's valuation is correct, H's one-third share is worth just under £385,000. If his Form E valuation is correct, his share is worth c. £167,250.
- The provenance of W's figure is a valuation report produced by a local firm of valuers called OPM dated 30 September 2014 which valued BB Road at SAR6.58 million. H did not produce any valuation evidence to support his figure of SAR3 million. After the evidence had closed, the parties were able to secure updated reports from OPM which had also valued the Beach Villa in the P district of Jeddah in September 2014 at just under SAR115.5 million (c. £20 million+). Those updated reports (dated 22 November 2015) were sent to me after closing submissions. I have received no further submissions, written or otherwise, in relation to them. Whilst the valuation of the BB Road property remains the same a year on from its original valuation, the value of the Beach Villa is said to have increased marginally.
- It was made clear to me when the case was opened that neither Mr Marks nor Mr Todd believed that any reliance could be placed upon the original reports. The valuer had seen neither property and appeared to be carrying out little more than a desk top valuation with (it was said) inappropriate comparables. The updated reports come in the same format.
Orders in relation to valuation evidence; The Beach Villa
- By order of Mostyn J on 27 July 2015, if either party had wished to challenge the 2014 valuations, a single joint expert was to be appointed. No such appointment was made and, at the pre-trial review on 5 October 2015, I extended time for obtaining fresh valuations to 16 October 2015. Cluttons had originally been agreed as the nominated joint valuers but no action was taken. On 13 November 2015, with the final hearing less than one working day away, W's solicitors wrote to H's solicitors stating that it was now far too late for Cluttons to be instructed. H's solicitors' reply the same day came in these terms:-
"The current position is that pursuant to paragraph 7 of the order of the 27 July 2015 the value of the properties prior to the FDR is to stand, absent a Single Joint Expert. As far as we are concerned that value at the FDR was SAR 3,000,000 for one (BB Road) and SAR 6,000,000 for the other Saudi property (the P Beach Villa). That is recorded in the agreed asset schedule. So far as we are concerned those valuations now stand. But – unless your client has had a Damascene change of mind – we expect you will wish to assert the FDR values were the ones you advanced – i.e. of SAR 6,580,000 and SAR 115,462,500 (for the Beach Villa). How on earth do you expect the Judge to be able to bridge a gulf of more than £18 million in the valuations ? Similarly how could she possibly undertake an enquiry of what passed at the FDR ? The answer must be as provided for by the two orders – a single joint expert to guide both her and the parties."
- How indeed ?
- In the hours before the hearing, Cluttons, as SJE, accepted instructions from the parties to value the two Jeddah properties. They were sent a joint letter of instruction and apparently indicated that they could undertake the work within the required time frame. It became apparent very quickly that they would be unable to undertake the work and recommended a local valuer in Jeddah. Eventually, OPM was asked to update its earlier valuations. To date, it appears that H has never provided any formal valuation evidence to provide support for his figures and neither Mr Marks nor Mr Todd accept the OPM figures. How, then, am I to proceed?
- My starting point would normally be to look to the best evidence available. In relation to both the Beach Villa and BB Road, there was only one formal valuation available at the time of the FDR hearing. I cannot go behind the privilege which attaches to that hearing and I do not know what discussion and/or concessions there might have been at that hearing in relation to valuation issues. MB was not asked to address the issue of valuation of the Beach Villa directly. She told me that she was the one member of the family who made the most use of the property spending most of her weekends there away from the city. The family came during holiday periods. She was quite clear that there was no prospect of this property being sold.
- There are clearly deficiencies in the presentation of the original and updated OPM reports, at least in terms of a comparison with the presentation of valuation reports which are usually placed before the English courts. Whilst I have no reason to doubt the professional qualifications of the author of the reports, the basis of the valuation appears to be a selection of 'Google earth images' rather than a personal visit to the two properties in question. I am less concerned about the valuation of BB Road since the difference which separates the parties is unlikely to impact materially on an overall assessment of H's resources in a non-sharing case. However, the difference between them in relation to the Beach Villa is significant. I have pictures of the property attached to the report. The property has seven bedrooms, 4 living rooms, private access to the beach, a swimming pool and staff quarters. There are no specific details of any comparables as such; simply a reference to the square footage of other properties which have become available in the same area. Adjustments are made for various amenity factors such as the desirability of location, private access to the beach, and such like. Current market value has been calculated "as a weighted average of the market sample" with various modifications. I have to say that some parts of the report simply do not make any sense to me at all. I offer this paragraph by way of example (and I quote directly):
"13.7 (Sensitivity Analysis)
The dispersion ration for the Land evaluation is 5% as identified in the below table and it will also the sensitivity rate which can also be measure the risk factor. A narrative description of the sensitivity of the fair value measurement to changes in unobservable inputs if a change in those inputs to a different amount might result in a significantly higher or lower fair value measurement. If there are interrelationships between those inputs and other unobservable inputs used in the fair value measurement, an entity shall also provide a description of those interrelationships and of how they might magnify or mitigate the effect of changes in the unobservable inputs on the fair value measurement."
- Paragraph 5 of the report is drafted in these terms:
"5 Scope of the Report
The valuation report is performed on a limited scope basis; the report is not a self-contained comprehensive valuation report to estimate the fair market value for the Property in Time of valuation." [my emphasis]
Initially I had wondered if this was a typographical error. However, having referred back to the earlier valuation reports prepared in 2014, I see exactly the same wording. It is all very unsatisfactory and does not help me in my search for a firm forensic footing in relation to a proper understanding of value.
- There has been no opportunity to put any questions to the valuers and all I have to go on is the figure presented in the report as representing a fair market value for the Beach Villa. If this figure is adopted, H's one-third interest after costs of sale would be c.£6.88 million. If his valuation is correct, his one-third share is worth £334,500 (using rounded figures). I have to bear in mind that OPM has never been agreed as a joint valuer and part of the challenge to the figures which appear in that report is that it provides no evidence at all about asking prices as opposed to eventual sale prices, and I am told that the differential between the two can be significant in the local market in Saudi Arabia. Neither party appears to have addressed the valuation issue in good time despite the fact that I extended the window for valuations at the pre-trial review. Whilst it is true that the OPM assessment is the only professional opinion available to the court, that does not necessarily make it the best available evidence in terms of reliability. On the other hand, H does not provide me with any justification at all for his figure of SAR3 million.
- All I can do at this stage is to express my view that, whilst H's figure appears very much on the low side, I am not persuaded that I can safely proceed to attribute to him a one-third share in a property worth c. £20 million. I am not going to take the course of splitting the difference between the two valuations since I regard that approach in this instance as being intellectually unsound where the positions in relation to valuation are so completely polarised. On behalf of the Interveners (i.e. the company and H's mother and sister), Mr Marks suggests that I adopt a gross valuation of SAR100 million (c. £17.6 million). After costs of sale, this would produce a net value of c. £16.725 million with H's one-third share being worth £5.575 million. Since he represents the two other family members who share in the remaining two-thirds of the Beach Villa, I had initially been prepared to accept that their view, as between the figures advanced by H and W, is that W is probably nearer the mark. However, I find that this property is unlikely to be sold in the foreseeable future since H's mother has made her position very clear and I accept what she told me. It is thus an essentially illiquid asset in H's hands for the present time. He will no doubt be able to continue to use the property but it will not provide him with any liquidity for probably many years to come and then only when his mother and his sister agree to a sale or when he inherits (with his sister) on his mother's death. I do not discount his share as irrelevant to the computation of the asset base, since plainly it is not. Mr Peel invited me to draw adverse inferences against H and to err in favour of W whenever there was a factual dispute between the parties in relation to the figures. I accept that H's disclosure has been woefully deficient in many aspects of his presentation but this fact alone does not persuade me that I can safely attribute to his side of the asset schedule a fixed sum approaching £7 million. It has a value and a substantial value: the Beach Villa is the most valuable asset in the property portfolio.
- Doing the best that I can to be fair to both parties, and in the absence of any compelling evidence from H as to the basis of his valuation, I was proposing to assume that Mr Marks's figure is probably nearer the mark, representing as it does a discounted figure from that proposed by OPM. It seems to me that he would not have advanced that compromise had he not had instructions from his two lay clients that this was a sustainable figure.
- However, matters do not end there because just as I was on the point of finalising my judgment for distribution to the parties, I received a further valuation from OPM sent at the behest of H's solicitors. It appears from their covering email that OPM had made what was referred to as "a significant mistake in regard to the size of the plot of land they were valuing". They were sent a copy of the title deeds which included (so it appears) a plan showing the true extent of the plot. That revised valuation, at which I had looked, now attributes to the Beach Villa a significantly reduced value of SAR59,350,000 (the equivalent of £10.45 million making H's one-third interest worth £3.483 million). This is plainly significantly less than the value of £6.775 million for which W contends and less than Mr Marks' suggested compromise figure of £5.575 million.
- I have since received an email from W's solicitor, Mr Beccle, objecting to the admission of this evidence, which is not agreed. I am certainly not intending to admit this latest updated report from OPM as evidence of value and my reading of it has been on a de bene esse basis. It further reinforces my view about the unreliability of the valuation evidence as a whole in relation to this property and that observation applies as much to the first two valuations which OPM produced. Clearly, if they have been valuing the wrong plot, this would be an issue of concern. I do not know, and neither do W's solicitors, whether the plan with the title deeds is an accurate reflection of the property. I tend to agree that a mistake of this nature, given the potential values involved, would certainly be an issue which Mr Todd (and Mr Marks) would be entitled to raise under the Barrell jurisdiction. I have no desire to see these parties locked in litigation for any longer than is necessary and I propose to proceed on the basis that H's (currently illiquid) share in the Beach Villa is worth somewhere in the region of £3.5 million to £5.575 million. Conceivably, it may be worth as much as the figure of £6.775 million for which W contends, but I doubt it. The reality is that it is just not possible at the present time to settle upon any reliable figure at this point and this is not a failing which can be laid solely at H's door.
- What has to be borne in mind is that (a) this is inherited wealth; (b) it is currently an illiquid share in a property which is not going to be sold (and I accept MB's evidence on this issue); and (c) W's case is advanced squarely on the basis of need.
- This new information simply undermines my confidence in any of these figures but it does not change my view whatsoever about the appropriate outcome in this case.
Two remaining properties in Jeddah occupied by H's mother
- There is no valuation evidence in relation to either of these properties. One is a property on a small compound or estate (the BS property) which was one of four given to each of H's late father and his three brothers by their father during his lifetime. It has always been occupied by his mother and H regards it as her home and not an asset to which he lays any claim. MB told me that she regarded it, as she always has done, as part and parcel of the family arrangement. According to her evidence, the property is subject to some form of redevelopment or planning blight and can only be sold with the approval of the government. The difference between the parties is not significant and, in the absence of any valuation evidence, I propose to take a midway point for the purposes of my assessment of H's resources. Thus, to H's one-third interest in this property I attribute a value of £135,600.
- The second of these properties is an apartment which MB has only recently purchased in D Road, Jeddah. It was purchased using the proceeds of sale from some SABB shares, also held within the family arrangement. H's figure for the value of this property (which only came to light during the course of the oral evidence) is based upon the current share price of the SABB shares since one asset in the family arrangement has essentially been replaced by another. His figure is just under £258,000. W's figure has been calculated using the mean of the highest and lowest share price between the date when the shares were sold and the date when disclosure was made as to the existence of this property. It seems to me that is fairest way to proceed and I propose to attribute to H's one-third interest in this asset a figure of £345,000.
The French apartments
- Savills has valued these properties in the South of France at W's behest. Whilst there was initially a dispute as whether or not H had a one-third interest in each, there is now agreement that they fall under the umbrella of the family arrangement albeit subject to a usufruct (or life interest) in H's mother's favour. H does not accept that Savills should be treated as a single joint expert. Given that the distance between the parties in monetary terms is less than £55,000 (and this stems partly from a differential on the percentage applied in respect of costs of sale), I feel able in this instance to split the difference between them, as I have done with the BB Road property. I have thus worked on a figure of £338,000 for H's one-third share in the two French apartments, both of which are external to the marital acquest.
Liquid funds in the Family Arrangement
- Both parties are agreed that there are liquid funds comprised of bank accounts and shares in respect of which H's one-third share is worth £1.174 million (rounded).
- Thus the funds held within the family arrangement, and in particular H's one-third interest, can be summarised (on a broadly rounded basis) as follows:-
Property portfolio H's 33.3% share
BB Road (mid-point) 275,675
Beach Villa, P District £3.5m/£5.575m/£6.775m ? ??
BS property (mid-point) 135,610
D Road (W's valuation) 345,000
2 apartments in South of France (mid-point) 338,000
Liquid funds (cash and shares) 4,381,630
or 12.42m / 14.5m / 15.7m with 33.33% of Beach Villa
- In terms of his own independent capital, free from the family arrangement, H has funds of just under £1.6 million comprised of cash and a Goldman Sachs portfolio.
- I have already dealt with the loan said to be due to H's brother-in-law in connection with the BB Road property. For present purposes, and for the reasons I have given, I discount it as a hard loan at this stage.
- H asserts the existence of a further loan which he owes CD in the sum of SAR5 million (c. £880,000). This debt is said to arise in circumstances where H made an investment in the Saudi stock market at the end of 2008 / beginning of 2009. His investment coincided with the global financial crash and the shares were sold, mostly at a substantial loss. He explained during the course of his oral evidence that CD had acquired the shares on his behalf. The shares were bought in CD's name but held by him for H's benefit. Apart from one or two letters which H has supplied from this individual asking about repayment of sums due, there is no other evidence about this liability. H told me that CD was a close friend of his. He told me he had asked a few times for repayment but I can detect no sense of urgency in that evidence or in the letters he has provided. There is no evidence that CD is minded to litigate to recover this debt and H appeared in his evidence to be very vague about the circumstances in which the money was lost. He told me "I have not dug any deeper into it". The debt, if such it is, has been outstanding now for some six or seven years and I see no evidence at all of a formal demand for repayment. In the circumstances, whilst I do not discount it completely, I propose to treat it as a very "soft" loan and not one which should be allowed to take priority over the liquidity which will be needed to provide for W's needs in the context of this hearing.
- Each of H and W has a liability for outstanding legal costs and these include, on H's side, a liability for part of the costs relating to the Children Act proceedings which are ongoing before Russell J. W's outstanding costs are £85,200 and H's just under £309,000. Both have had assistance from their respective families. W's father has contributed over £1 million thus far. She claims this as a liability being monies which she owes him at the conclusion of these proceedings. I have not heard from W's father although his loan to W is documented in the papers. W herself accepts that, whilst he would like to see this money returned, he will not see her in a position of need in relation to this family debt. H's mother has in her turn made a significant contribution towards his legal costs although she was unable to tell me precisely what she had paid.
- I have agreed with the legal teams that I will not make any orders in respect of the costs of this hearing unless and until they and their respective clients have had an opportunity to digest my judgment and consider their positions. A vast sum has been expended to date on costs and, in relation to the financial aspects of the litigation, I am wholly persuaded that H's disclosure has fallen short of what it should have been in several material respects. It was no fault of Mr Peel and his lay and professional team that the mists began to clear only when H and his mother had given their oral evidence on the fourth listed day of the hearing. It was that disclosure which appears to have been the catalyst for Mr Todd's significantly improved open offer on behalf of H.
- Thus, a very simple representation of the joint asset schedule which reflects my findings in relation to computation (whilst factoring in the uncertainty in relation to the Beach Villa) can be distilled into the following format (in rounded numbers):-
|H's interest under Family Arrangement
|all inherited funds
|(dependant on value of his 33.33% interest in the Beach Villa)
|H's personal liquid funds
|Joint funds (H and W)
|HSBC € account
|Subject to o/s costs and W's debt to her father
|No allowance made for H's alleged liabilities to PR / CD
D. W's claims in this application: what is a fair outcome ?
- I begin this final section of my judgment by reminding myself that this is not a sharing case and, whilst the court needs to understand in as much detail as the evidence will permit the broad parameters of the wealth available to this couple as individual parties, there is not the imperative to undertake a forensic dissection of that wealth as would be appropriate in a case where the assets fell to be shared in equal proportions. My starting point must be s 25 of the Matrimonial Causes Act 1973. Whilst there is no hierarchy of relevance in the list of factors which the court has to consider, the resources available to the parties and their respective needs appear to me to be the magnetic or "pull" factors in this case. Overarching my consideration of all the factors which come into play are the needs of the three children of the family, and their welfare is my first consideration.
The "Thomas" issue
- As will be apparent from my analysis in relation to the computation issue, W holds very little in her own name in terms of tangible assets. It is accepted that, whatever the precise figure to be attributed to her future inheritance prospects, they are substantial. She is likely to be a multi-millionaire in her own right as and when that inheritance crystallises on the death of her father. In this respect, both she and H stand to benefit in the future from wealth flowing down through the generations of their respective families. The difference in H's case is that, whilst his inherited wealth is still partially illiquid in terms of the control which his mother and sister are able to exercise over the funds in the family arrangement, W is likely to have unrestricted access to, and control over, the wealth which she stands to inherit in due course. Whilst I did not have expert evidence on the point, it is an agreed fact in this case that her rights under domestic law as it applies in the Kingdom of Saudi Arabia are unassailable and indefeasible.
- However, Mr Todd seeks to go further in this case. He points to the financial support which W's father has provided to date. That support, he contends, has nothing to do with W's rights upon his death. It represents a separate 'resource' for the purposes of my assessment under s 25 of the 1973 Act.
- First, there is the very substantial legal bill which W has run up and which her father has underwritten. W accepted in her oral evidence that her father has not placed any limit on the extent to which he is prepared to fund her costs, although she told me that her father's general approach to life is that his children should stand on their own two feet and make their own way in life rather than relying on him to support them. I heard some evidence about the accommodation he had provided in central London for W's siblings, at least one of whom may have had health issues with which to contend. W accepted that he is a loving father who would not see her go without were she in a position of real need. I have the impression (albeit in absentia) of a father who loves all of his children very much and who has been prepared to provide financial support and step in whenever it has become necessary. He clearly believes that H, as W's husband, has an obligation to provide financially for his daughter at the end of their marriage, and he is entitled to hold that view. As I said on more than one occasion during the course of the hearing, W is entitled to bring these claims under English law and H has a corresponding obligation to meet them. I am acutely conscious that I am dealing with an extended family on both sides of this dispute whose cultural views and expectations may be very different from the expectations of Western society. There were times during the course of the evidence where I began to feel that the ambit of the dispute between the two families was the extent to which each should share in the future financial support of W.
- In this respect, I echo the judgment of Russell J. W is a sophisticated and intelligent woman in her own right. She brings her claims in this jurisdiction as of right, both as H's wife and as mother to their three children. She has made a significant contribution to this marriage and will continue to make a contribution over several years to come as their children mature into adulthood. Her role as their mother survives the dissolution of her role as H's spouse and English law entitles the court to take those future contributions into account. IK's difficulties may or may not impact upon his ability to lead a full and independent life in future but, for the immediate and foreseeable future, it is W upon whom the burden of the day to day responsibility for these children lies.
- Mr Todd relies on two separate limbs of the Thomas criteria which he says are engaged in this case. First, the court has the remedy of "judicious encouragement" directed towards H's mother and sister in terms of their willingness to join with H in order to carve out provision / liquidity from the family arrangement funds in order to make resources available to meet her needs-based claim. Secondly, there is the requirement to analyse the extent to which, in a genuine case of need, there is a third party (i.e. W's father) who is willing and able to step in and meet that need.
- As a valued member of her family, W accepts that she has free access to a number of properties owned by her father around the world. She stays in his property in the South of France during the summer holidays. She has stayed at his home in Saudi Arabia where she appears to have her own room with accommodation for the children. W originally advanced her claims in this litigation on the basis that she might wish to purchase a second property or properties abroad in Saudi Arabia and/or the South of France [B/C:23]. I am going to have to consider the extent to which her needs justify the provision of a second property and/or the resources of H which might make that a realistic outcome in these proceedings. Mr Todd put to W in cross-examination that her father was likely to make sure she was appropriately accommodated if he perceived his daughter to be "in need". She confirmed that to be the case [Transcript: 17 November 201: page 44]. As Mr Todd was to put it to me,
"We would say that we are all agreed that it is a needs case. In assessing those needs, we have to look at the total that is available to meet those needs and that does not mean just looking at the resources of the husband. That means looking at all the resources that might be available. Indeed, the husband is deploying resources which are strictly his sister's and his mother's in order to be able to assist the wife. So it is all hands to the wheel." [Transcript: 17 November 2015: page 46].
- In the absence of W's father from these proceedings, I collected anecdotal evidence of his wealth during the course of the cross-examination of his daughter. I heard about his allegedly sumptuous villa in Saudi Arabia in which he retains a full staff complement of nine full-time live-in staff. I heard about an apparently infamous occasion when he had placed a $1 million bet at an outing to a local casino in the South of France. I attach no more than passing significance to these apparent suggestions of wealth and largesse just as I have no clear understanding of the value of H's interest in the beach Villa in Jeddah. This is not wealth which has been generated by the joint efforts of these parties. It is wealth which has been created by their respective families.
- In terms of an application of English law, I remind myself of what Waite LJ said in Thomas. At page 670 to 671, his lordship said this :
"The discretionary powers conferred on the court by the amended ss 23-225A of the Matrimonial Causes Act 1973 to redistribute the assets of spouses are almost limitless. That represents an acknowledgement by Parliament that if justice is to be achieved in between spouses at divorce the court must be equipped, in a society where the forms of wealth-holding are diverse and often sophisticated, to penetrate outer forms and get to the heart of ownership. For their part, the judges who administer this jurisdiction have traditionally accepted the Shakespearean principle that 'it is excellent to have a giant's strength but tyrannous to use it like a giant'. The precise boundaries of that judicial self-restraint have never been rigidly defined – nor could they be, if the jurisdiction is to retain its flexibility. But certain principles emerge from the authorities. One is that the court is not obliged to limit its orders exclusively to resources of capital or income which are shown actually to exist. The availability of unidentified resources may, for example, be inferred from a spouse's expenditure or style of living, or from his inability or unwillingness to allow the complexity of his affairs to be penetrated with the precision necessary to ascertain his actual wealth or the degree of liquidity of his assets. Another is that where a spouse enjoys access to wealth but no absolute entitlement to it (as in the case, for example, of a beneficiary under a discretionary trust or someone who is dependent upon the generosity of a relative), the court will not act in direct invasion of the rights of, or usurp the discretion exercisable by, a third party. Nor will it put upon a third party undue pressure to act in a way which will enhance the means of the maintaining spouse. This does not, however, mean that the court acts in total disregard of the potential availability of wealth from sources owned or administered by others. There will be occasions when it becomes permissible for a judge deliberately to frame his orders in a form which affords judicious encouragement to third parties to provide the maintaining spouse with the means to comply with the court's view of the justice of the case. There are bound to be instances where the boundary between improper pressure and judicious encouragement proves to be a fine one, and it will require attention to the particular circumstances of each case to see whether it has been crossed."
- In this case, I heard evidence from W herself about the extent of the financial support which her father has been providing to date. In addition to her legal fees, he has been providing something in the order of £4,000 per month. She told me that this was to assist her in meeting the shortfall in respect of (amongst other things) the costs of providing for the nanny when H had not met his financial obligations. I have already made reference to the £1.2 million which has funded her legal representation to date. She has employed solicitors who have instructed advocates of the highest calibre but that is, perhaps, no more than one would expect a father to do in his support of a daughter whom he perceives to be a vulnerable party in an ongoing litigation where H's family are perceived to have access to significant resources of their own. He has provided W with her own American Express card in respect of which he meets the bills, albeit that she told me this card was for emergency use.
- Mr Peel and Miss Sheridan pursue their claim on behalf of W for a lump sum award of £7.5 million in respect of a housing and income fund. On receipt of this sum, W is willing to vacate 18SPM and 18A and she will use this capital to invest in a central London home. In addition, she seeks £25,000 for a replacement car and some £14,000 which she says is due in respect of accrued arrears under interim orders. In default of payment of the lump sum, she seeks the transfer into her name of the two properties at 18SPM and 18A in part satisfaction of his obligations. In respect of child support she seeks an order for each of the children at the rate of £15,000 per annum per child, a total commitment of some £45,000 per annum from H in respect of their general maintenance. In addition, she seeks an order for the school fees and reasonable extras. In order to secure his income obligations, W seeks secured provision by way of a charge on some £400,000 worth of assets, such sum to be deposited with H's solicitors and backed by an appropriate charge document.
- She rejects H's revised proposal made at trial in respect of an occupational interest in 18SPM and 18A together with a lump sum of £2 million (representing free capital in her hands). Through her leading and junior counsel, she raises a number of objections as to why this financial "package" is unattractive to her. Most significantly, she does not wish to feel "beholden" to members of H's family for the roof over her head in circumstances where the relationship she has with them is strained. In terms of "need" per se, Mr Peel's only challenge to the provision of 18SPM is that it is a three bedroom property and, when her entitlement to occupy 18A expires in three years' time, 18SPM will be too small to meet her needs.
- 18SPM has been the family home for a number of years. It has been enfranchised using family funds emanating from H's inherited wealth such that, for all practical purposes, it now represents as good a security as a freehold interest in the context of the current litigation. Not only has it been W's home for a number of years; it has specifically been remodelled and redecorated (at a cost which even H accepted was close to £400,000) to W's taste and to meet her personal requirements. It is in a location which is at the centre of where she wishes to live in order to run her life and the children's. It is familiar accommodation and it is the children's home.
- The property particulars which she put forward as representing her reasonable housing needs did not seem to me to be an appropriate reflection of her future need. In some respects, she was not sure that she had even been to view the properties which she was advancing as appropriate for her needs. In other respects, she put forward property particulars which she accepted, once viewed, were unsuitable for the needs of her family. Conventionally, her future housing needs were addressed 'head on' by H who, no doubt on advice, put before the court a series of properties in a slightly cheaper area of central London where the accommodation to which W aspired could readily be purchased for a significant discount.
- By his current offer, Mr Todd effectively offers to leave in place the status quo ante for so long as W requires it. His offer anticipates that, on remarriage or inheritance, she will no longer have a need for the accommodation which currently forms part of her husband's family arrangements. W has lived happily in 18SPM for a number of years. It is the property to which she has always returned after often lengthy absences abroad. She puts her case on the basis that her future for as far ahead as she can see it lies in remaining in central London. Her life "works" at the present in terms of her location at 18SPM and she gave me a number of reasons in her oral evidence why a move to Fulham or its environs simply would not fit in with the smooth running of family life. All her friends and her support network (as well as the children's social lives) are centred on their central location in South Kensington. By his revised proposals, H (with support from his mother and sister) offers W a seamless continuation of the life which she knows and understands.
- That proposal requires the family to tie up assets worth some £6.6 million gross for the next three years without any possibility of an income return. Her occupation of 18SPM (worth a gross sum of almost £5 million – the equivalent of W's target housing fund, less associated costs of purchase) is unlimited in time subject to her future remarriage or inheritance on the death of her father. W's occupation is to be entirely gratuitous in terms of the family's waiver in respect of any occupation rent. The combined value of those two properties is in excess of the housing fund which W seeks from H. Under the terms of H's revised proposal, his family is signing up to this asset being effectively frozen (save in terms of its capital appreciation) for what might be many years into the future. In this context, it is not without significance that the two properties which are the subject of the settlement proposal form a very significant part of the value of the London property portfolio held within the overarching structure of the family arrangement.
- The court has the assurance of the wider family members that this revised offer to W is made with their consent and support. I have the unequivocal evidence of H's mother that she will not sanction the sale of either 18SPM or 18A nor will she or the other family members agree to transfer the properties away from the current structure of corporate ownership even were that within their gift. The Beach Villa in Jeddah is, in my judgment, a property to which this family attaches a particular significance in terms of the amenity value it provides to the wider family members. W's mother has made it quite plain that there is no question of this property being sold.
- H offers to provide W with free capital of £2 million. He will have to reach an accommodation with his family in order to pay this sum. I am satisfied that they will assist him, without any judicious encouragement from me, to perform in relation to the terms of his revised offer. There will inevitably have to be a wider discussion amongst them as to how, in the aftermath of this divorce, the individual shares of the various family members should be reflected in the assets held within the family arrangement.
- In his closing submissions, Mr Peel submitted that W would prefer a lower capital award to the alternative of a guaranteed occupational interest in her current family home. He put no figures on what that reduced award might be.
- The issue of W's financial autonomy had troubled me initially. Particularly in circumstances where inter-familial relationships are strained, I can see that she has reservations about her security in what she has always considered to be the English family home.
- However, having given the matter much thought over the period during which I have had to reserve my judgment, I am entirely persuaded that H's revised offer, albeit very late in the day, is the right answer in this case. It meets W's needs and embraces her stipulated requirements in every aspect save for her wish for free capital to purchase an alternative property. Since it carries wider family consent, I do not need to venture into the territory of 'judicious encouragement'. I am persuaded that H's offer carries the full support of H's mother and sister. It represents a significant detriment to their personal financial interests. Absent W's occupation, the two apartments would attract a significant rental return in the central London market which would provide BCO with a valuable income stream. That, in turn, would ultimately benefit the shareholders. Their support for the current proposal effectively blocks any future income yield from these corporate assets.
- In effect, family money on H's side is being made available to this wife to maintain the status quo ante for so long as she shall need that provision. In relation to 18A, whilst I am satisfied that three years is a reasonable period of time in respect of her use of that flat, I would like to receive an assurance that the directors of BCO, with encouragement from H and his family, would look favourably upon any reasonable request which W might make for an extension of her licence to occupy that accommodation should circumstances change. In three years' time, the children will be 18, 15 and 7 years old. At that stage, I accept that the need for full-time live in staff will have receded.
- I do not accept that this is a case where resources will stretch to the provision of a second property for W. I suspect that this is where her father may step into the breach since it is difficult to imagine (and would run contrary to her evidence) that he will not look after her needs should she wish to spend extended periods of time during holidays in either Saudi Arabia or the South of France. She has stayed in his properties in both locations on frequent occasions and there is nothing in the evidence before me to suggest that this facility will not be available to her in future.
- I do not ignore H's own needs going forward. Whether or not he will be in a position to afford to purchase an apartment (and he has told me he would expect to have to pay about £1 million to acquire an apartment in Dubai) will depend upon whatever accommodation he can reach with his own family. The payment of the lump sum to W will effectively exhaust his own capital resources. In addition, I have effectively left him to negotiate his own arrangements in relation to the liabilities he claims to owe to his brother-in-law PR and a close friend, CD.
- The evidence in relation to his present partner's financial resources in terms of her ability to contribute to a purchase is far from clear and I place no reliance on the likelihood of funds becoming available from that source.
- In summary, my order will provide for provision for W in terms of the offer advanced by Mr Todd, supported by Mr Marks. W's housing needs will be met by the ongoing provision of 18SPM/18A on a rent free basis. H will pay to her a lump sum of £2 million in respect of her future income needs. He will provide an additional sum of £25,000 for a replacement motor vehicle. Child maintenance will be payable at the rate of £15,000 per annum per child. I am conscious that a concession was extracted from W in cross-examination that she might be able to manage on slightly less for the two younger children but I take the view that £15,000 per annum per child is an appropriate level of support for the children in the light of H's likely future earning capacity. He himself accepts that, once this litigation is over, he is likely to earn sums equivalent to his former income in excess of £300,000 per annum. In addition, it is agreed that he will pay the children's educational costs. Security will be provided by means of a fund of £400,000 which will be deposited with his solicitors on terms to be agreed but on the basis that the fund will reduce pro tanto as his obligations diminish.
- I shall be keen to ensure that the legal documentation which will need to be put in place to ensure the security of W's rights of occupation in 18SPM/18A is sufficiently tightly drawn to reflect the underlying intention which underpins these orders. I do not propose to order any security in respect of any potential default in relation to the lump sum of two million. As a matter of law, 18SPM and 18A belong beneficially to the company and I have no jurisdiction to order a transfer of these properties.
- In relation to the £14,000 which is claimed in respect of arrears accrued under interim maintenance orders, if this sum is properly due and owing, it should be paid. I did not hear evidence about this issue but I anticipate this is a matter which counsel will be able to resolve between themselves without difficulty.
- I shall hear further submissions, if a further hearing proves to be necessary, in relation to any issues arising in relation to drafting and/or costs. I would encourage the parties and their respective teams to endeavour to agree as much as possible. The costs which have already been incurred in this litigation are very substantial. Whilst I recognise that there is considerable scope for further argument in relation to where the ultimate burden for costs should lie, each of these parties has the benefit of first class legal representation and I would urge them to negotiate sensibly once they have had an opportunity to consider and reflect upon my judgment.
Note 1 Although paragraph 23.c of the Points of Defence refers to “W’s sister” as the intended occupant of 18SPM, this is clearly a typographical error. [Back]
Note 2 By this stage, H accepted that his interest in the “family arrangement” properties should find reflection in one-third of the net value of the properties once allowance had been made for costs of sale. He no longer restricted the value of his share to one-third of the outstanding loans made to BCO to fund the original purchases. However, whilst his interest in the three London apartments and the BB Road (Jeddah) property were included as part of his share of the value in the “family arrangement”, there was nothing in the figures appearing in his column to represent any interest in either the sea front beach villa or the two apartments in the South of France. [Back]
Note 3 OS v DS (Oral Disclosure: Preliminary Hearing)  EWHC 2376 (Fam) [Back]
Note 4 In relation to the value of any substituted property, I accept that there will be deductions from any sale proceeds, most notably in respect of tax. However, H, his mother and sister have subsequently confirmed to me that the net proceeds of flat 18SPM would be deployed to purchase a reasonable alternative acceptable to W subject only to it being an appropriate investment (ie. not a very short lease).
Note 5 It is right to record that W disputed this valuation of the French château when she was cross-examined by Mr Todd. [Back]
Note 6 Thomas v Thomas  2 FLR 13 [Back]
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