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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> JM v KK [2021] EWFC 54 (29 June 2021) URL: http://www.bailii.org/ew/cases/EWFC/HCJ/2021/54.html Cite as: [2021] EWFC 54 |
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SITTING AT THE HIGH COURTS OF JUSTICE
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
![]() | Applicant |
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- and – |
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![]() | Respondent |
____________________
Mr N Fairbank (instructed by JMW
LLP) for the Respondent Wife
Hearing dates: 16 & 17 June 2021
____________________
VERSION
OF JUDGMENT APPROVED
Crown Copyright ©
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.
The Hon. Sir Jonathan Cohen :
The facts:
i) In January 2020, before Ms Fottrell QC sitting as a Deputy High Court Judge. She and I have been critical of both parties' conduct in that litigation, the Father/Husband for creating a situation that gave rise to the litigation and the Mother/Wife for her stance in the litigation. The conclusion of that case was that the judge ordered, as H sought, that N should be returned to Bahrain where she was living before the departure for England. As her mother did not return to Bahrain, N lived with her father.
ii) In April 2020, H became aware that W was in the process of instituting proceedings before the religious court in Bahrain. She had, subsequent to the first round of proceedings, converted to Islam without telling anyone. Notwithstanding the existence of an anti-suit injunction, she then sought the assistance of the religious court in Bahrain, a step open to her as a Muslim but not open to H. In my subsequent judgment I was very
critical of the steps taken by the mother which were a deliberate attempt to circumvent the orders of the English court. Nothing I have heard in these proceedings makes me think that my criticisms were unjustified. The inevitable result of her actions was that H applied to the court and was given permission by me to bring N to England. The second round of proceedings concluded in my confirming that N should live with her father in England until the conclusion of a welfare enquiry.
iii) The welfare hearings took place in late 2020 and early 2021
and were to determine the
very
difficult issue as to whether N should be educated in and live with her mother in India and spend her holidays with her father in England or
vice
versa.
I concluded that N should live with her mother in India and be educated there but spend approximately 2 months a year in England with her father and such other times with him as he was able to be in India.
At the end of the proceedings the father made an application for costs in respect of the second round where he had incurred costs of some £39,000. His application was justified on the merits but I adjourned it to be dealt with within the financial remedy proceedings as I knew insufficient about the parties' means. It was for that reason that I reserved to myself the financial remedy proceedings in the event, as has proved to be the case, that the parties were unable to settle them.
The Assets
i) The figure of £215,000 is the one that resulted from the exercise ordered by the court. There is no order permitting any other evidence;
ii) It would be wrong for me to start considering the higher valuations
when I know there are lower ones as well, albeit not before me;
iii) H has accepted without demur the result of an identical exercise that was carried out in respect of the Indian property, which he says has resulted in a value
lower than he thought appropriate;
iv) When the agreed agent was asked to reconsider her valuation
in the light of the higher quotes, her
view
remained unaltered having taken the advice of her manager.
Debts of W
i) Some of the debts clearly required explanation.
ii) W's case in the child proceedings was that she needed no financial assistance from H yet, in this hearing, her case was that she needed financial support from him to meet the expense of caring for N, the exact opposite of what she had previously said.
iii) The figures were often difficult to follow. What were at some stages described as outstanding legal fees had morphed into borrowing from friends and family.
iv) Loan agreements had been entered into by W with family members and friends which on their face contradicted W's own evidence of what monies had been lent to her and when.
i) Mrs S (counsel): I accept that £8700 is owed but I am astonished to see a charge for no less than 7 conferences on money matters [D88/89] when she has made no appearance.
ii) EAH: This is a firm of Bahraini lawyers. W engaged them, and they instituted proceedings in Bahrain notwithstanding the anti-suit order of Ms Fottrell QC, and their involvement has produced the disastrous financial consequences that I have mentioned. W says that EAH no longer have her address and that the debt may have been written off. Whether or not that is the case, it is not proper that this liability, if it exists, should impact on the award made.
iii) W's brother: He has rendered 4 invoices for his work as an attorney which he says he carried out for W. Two of the invoices relate to work on property matters relating to the two Indian properties and his charge for them is put at the approximate equivalent of £6,500. The other two invoices relate to the children's matter. There is a question over all the invoices as to whether in fact he really would require W to reimburse for the time that he has spent. I am prepared to allow the property transactions in the sum of £6,500 to be regarded as a soft debt. I am not prepared to take into account his assistance in the child proceedings in circumstances where he appeared as W's Mackenzie Friend and where I found his involvement to be inflammatory and unhelpful.
iv) Ms L (counsel): I am told there is an outstanding liability of £1500, albeit that it may have been written off (although I am not making that assumption).
v)
Mr M: He is a good friend of W and has lent £9000. That sum went towards W's representation in these proceedings and I accept that it is a sum that is owing albeit not one that W is going to be pursued for until she can afford it.
vi)
Mr B: He has lent, W alleges, a total of £6,167. Part of it was lent in small sums when W asked, and £3,000 was used to complete the payment for W's representation in this hearing. The debt is gradually being paid off by work that W is doing for him. He is a
very
close friend of both parties, but particularly W, and I have no doubt that although he expects to be paid he will wait for his money or until W has worked it off. I shall work on the basis that the £3000 needs repayment and that the remining sum will be paid off by W's work. I shall refer to this again when dealing with income.
vii)
Ms S: W says that her friend had lent somewhere between £14-15,000. W's evidence on this shifted at
various
times and was produced piecemeal rather than in one schedule. I am in broad terms prepared to accept this as a liability albeit I am sure that she too will wait for payment if W feels unable to make it immediately.
viii)
W's father: I disregard this alleged debt. His evidence in the child proceedings was that he would help his daughter to extent she required within his means and would pay N's school fees until his help was not needed. I do not think there is any question of him calling upon his daughter to repay the sums that she says that she has borrowed from him, and which were not mentioned in the child proceedings when his ability and willingness to assist W financially were being discussed.
Income
The position of each party
It shall be the duty of the court … to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family that has not attained the age of 18.
The European Regulations
In matters relating to maintenance obligations in Member States, jurisdiction shall lie with: …
c) the court which, according to its own law has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties.
He goes on to say as follows:
As Rayden & Jackson note:
"The EU Maintenance Regulation covers all maintenance obligations arising from a family relationship, parentage, marriage or affinity… However, it does not cover matrimonial property rights. Van
den Boogaard held that a lump sum or transfer of property may be in the nature of maintenance if it is intended to ensure the support of a spouse. If, however, it serves only the purpose of division of the assets, it will not be treated as maintenance."
And continuing at 1.336:
"It is important to bear in mind the exception in Art 3(c) which applies where a divorce petition is based on the sole domicile of one of the spouses under BIIa, Art 7. In such circumstances, the English court does not have jurisdiction to deal with maintenance since none of the limbs of Art 3 apply. However, the English court would have jurisdiction to consider a claim based on property rights, including the sharing principle, as opposed to a needs based claim."
The ruling by the European Court was that a lump sum payment was to be regarded as maintenance if its purpose was to ensure the former spouse's maintenance. Although its formulation differs slightly from that of Jacobs AG
(who spoke of the 'essential object' of the order for payment), the European
Court expressly approved much of Jacobs AG's opinion. The following propositions may be derived from this decision: first, whether a claim is for
maintenance depends upon an autonomous interpretation of the term, and the
label given to the claim by national law is not decisive; secondly, payment of
a lump sum or transfer of property may be in the nature of maintenance if it is
intended to ensure the support of a spouse; thirdly, payment of a lump sum or
transfer of property which serves only the purpose of a division of property or
compensation for non-material damage is not in the nature of maintenance;
fourthly, a payment or transfer of property intended as a division of assets will
concern 'rights in property arising out of a matrimonial relationship'; fifthly,
whether a claim relates to maintenance will depend on its purpose, and in
particular whether it is designed to enable one spouse to provide for himself
or herself or if the needs and resources of each of the spouses are taken into
consideration in the determination of its amount, or where the capital sum set is designed to ensure a predetermined level of income; sixthly, where the
provision is solely concerned with dividing property between the spouses, the
decision will be concerned with rights in property arising out of a matrimonial
relationship and will not therefore be enforceable under Brussels I.
a) Assess what the assets are
b) Take off what I find the debts to be
c) Divide the balance by 2.
If H needs more than 50% to meet his/N's reasonable housing needs that is immaterial as consideration of needs is outside the terms of the Regulations.
i) The division of matrimonial assets is governed by reaching a fair outcome in all the circumstances of the case; in some circumstances equality will be appropriate but in others it will not.
ii) I have to have as my first consideration the interests of N.
iii) I do not accept that I have my discretion removed from me and am bound to produce an arithmetical result from the exercise even if it is unfair.
iv) I must arrive at a fair division of the matrimonial assets. Payment of a lump sum or transfer of property is not necessarily in the nature of maintenance as set out in the third proposition extracted by the Court of Appeal in Moore at paragraph 80.
v)
What I am doing is ordering a payment or transfer of property intended as a division of assets arising out of a matrimonial relationship. The payment that I order is in part to reflect W's interest in the Tunbridge Wells property which is held in H's name.
vi)
I am entitled to take into account the matters set out at paragraph 26 above.
Outcome
i) The property in Kent is in H's sole name. It will remain in his name. I order him to pay W a lump sum of £48,000. I accept that this is at the absolute upper limit of what he can afford. He ascertained from an online search that he can borrow a further £30,000 on mortgage. That will mean that he has a borrowing of almost 5 times his annual income. He said that he could borrow some £10,000 from his parents. I realise that an award of £48,000 requires him to go further than he wishes.
ii) I order the transfer of the 2 Indian properties to W at her expense.
iii) Both parties agree that it would be disastrous if I did not make a clean break order. I agree. Litigation must stop. In any event, H cannot afford to make a payment of any significance.
iv) Child Maintenance/Support: I regard W's suggestion that H should pay one third of his net income by way of child maintenance as way beyond the bounds of reasonable. It would not permit him to service the borrowing that he will need or meet his living expenses.
A good starting point is the child support tables. I commence with H's gross income of £23,300. I deduct the costs of contact in the form of air fares for 3 return journeys (2 for N to England and back and 1 for H return to India) at a cost of £1350 pa. That means that H has a gross weekly income of £422 which would lead to a child support payment of £48p.w. which falls to be reduced by 14.29% for the nights spent by N with him. £41p.w. means a payment of £177p.m. I realise that this is a liability that H did not expect to have to pay in the light of the agreement made between the parties last year but I am satisfied that it is needed by W to help her meet N's expenses.
The Pension
Effects of the order
Epilogue