|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> MA v SK  EWHC 887 (Fam) (13 March 2015)
Cite as:  EWHC 887 (Fam)
[New search] [View without highlighting] [Printable RTF version] [Help]
Strand, London, WC2A 2LL
B e f o r e :
|- and -
Mr Tim Amos QC and Miss Laura Heaton for the Respondent (instructed by Stephenson Harwood LLP)
Hearing dates: 10th to 18th November 2014
Crown Copyright ©
MR JUSTICE MOOR:-
(a) The Applicant’'s claim dated 17th March 2014 for a declaration pursuant to section 17 of the Married Women’'s Property Act 1882 relating to the ownership of various properties. The only relevant property is now a property in Northwest London (hereafter “"the London Property”") The London Property the London Property as Sir Paul Coleridge, sitting as a deputy High Court Judge on 13th May 2014, stayed the application in relation to a number of overseas properties/the proceeds of sale of overseas properties.
(b) The Applicant’'s application dated 18th March 2014 for orders pursuant to Part IV of the Family Law Act 1996 in relation to the London Property.
(c) The Applicant’'s application, initially dated 17th July 2014, for financial remedies following an overseas divorce, brought pursuant to Part III of the Matrimonial and Family Proceedings Act 1984.
(d) The claim of S Investments NV against the Applicant for possession of the London Property.
The relevant history
The Standard of Living
Alleged transfers to the Wife
The breakdown of the marriage
The Wife’'s immigration status
The respective open positions
(a) Transfer of the London Property £3,597,868
(b) Transfer of Cannes £5,226,563
(c) Lump sum £30,000,000
(d) Own cash £1,689,613
(e) Transfer of TB (a company) £1,000,000
(f) Transfer of EI Holdings £2,511,100
(a) The intention of the Act was the alleviation of the adverse consequences of no, or no adequate, financial provision being made by a foreign court in a situation where there were substantial connections with England and Wales.
(b) The situation is different from an application that is made pursuant to the Matrimonial Causes Act 1973 as Lord Collins makes plain that some of the matters to be considered under section 16 may be relevant to section 18, and vice versa.
(c) It is not the purpose of Part III to allow a spouse with some English connections to make an application in England and to take advantage of what may well be the more generous approach in England to financial provision, particularly in so-called big-money cases, although there is no condition of exceptionality.
(d) Hardship or injustice is not a condition of the exercise of the jurisdiction but, if either factor is present, it may make it appropriate in the light of all the circumstances, for an order to be made and may affect the nature of the provision ordered.
(e) The amount of the financial provision will depend on all the circumstances of the case and there is no rule that it should be the minimum amount required to overcome injustice. It will never be appropriate to give the claimant more than she or he would have been awarded had all the proceedings taken place within this jurisdiction. Where possible, the order should have the result that provision is made for the reasonable needs of each spouse. Subject to these principles, the court has a broad discretion.
(f) The grant of leave does not inevitably trigger a full blown claim for all forms of ancillary relief.
“"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 a trust for a spouse who owned and controlled the company. In many, perhaps most cases, the occupation of the company’'s property as the matrimonial home of its controller will not be easily justified in the company’'s interest, especially if it is gratuitous. The intention will normally be that the spouse in control of the company intends to retain a degree of control over the matrimonial home which is not consistent with the company’'s beneficial ownership. Of course, structures can be devised which give a different impression, and some of them may be entirely genuine. But where, say, the terms of acquisition and occupation of the matrimonial home are arranged between the husband in his personal capacity and the husband in his capacity as the sole effective agent of the company (or someone acting at his direction), judges exercising family jurisdiction are entitled to be sceptical about whether the terms of occupation are really what they are said to be, or are simply a sham to conceal the reality of the husband’'s beneficial ownership.”"
My assessment of the parties
(a) Jurisdiction for the Part III claim;
(b) The alleged 2000/2001 Agreement;
(c) The transfers of property;
(d) The ownership of the London Property ;
(e) The ownership of Paris/Cannes;
(f) The Husband’'s wealth;
(g) Whether or not the Wife removed significant sums from the K Group; and
(h) The Wife’'s needs.
Jurisdiction in relation to the Part III claim
The alleged 2000/2001 Agreement
The transfers of property
The London Property
(a) The acknowledgment from the Wife and EK that the Husband owns the French properties (also matrimonial homes and also held by limited liability companies) in exactly this way.
(b) The fact that the Husband was prepared to transfer the shares in S Investments to the Wife even though I am absolutely clear that he intended to keep the ownership of the property. He could transfer the shares in S Investments to her yet keep the ownership because S Investments was a nominee.
(c) He provided the entire purchase price and the K Group has financed the property throughout at a very high level.
(d) He was paid the proceeds of all mortgages and re-mortgages. Moreover, he had to guarantee the loan once the Wife became involved in the structure.
(e) The earlier accounts reflected the true position and were confirmed by his Saudi auditor.
(f) He operated through bearer shares, a clear indication that he was not really bothered about the corporate position.
(g) He kept SGG largely in the dark as to what was going on. SGG and S Investments were used as a convenience not as the legal owners of the property.
Cannes and Paris
The Husband’'s financial position
(a) The London Property £3,597,868
(b) Cannes (after CGT) £5,226,563
(c) NCB European Investment Portfolio £ 945,000
(d) Personal belongings £2,644,800
The alleged debt of the Wife to the K Group
The connection of the parties to London
(a) The parties’' original marriage took place here.
(b) Throughout the marriage they have owned a substantial home here.
(c) EK was born here.
(d) The parties spent considerable periods of time here in the four years prior to their first marriage and for a couple of years thereafter.
(e) The Husband has had memberships at several London Clubs.
(f) At times, the children attended nurseries here during the summer holidays.
(g) Both parties have had medical treatment here on occasions as have the children.
(h) The Wife has lived here since September 2013.
The section 16 factors
The section 25 factors