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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> AF v SF [2019] EWHC 1224 (Fam) (01 March 2019) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2019/1224.html Cite as: [2020] 1 FLR 121, [2019] EWHC 1224 (Fam) |
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Strand, London, WC2A 2LL |
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B e f o r e :
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AF |
Applicant |
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-and- |
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SF (by the Official Solicitor as his litigation friend) |
Respondent |
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Philip J Marshall QC, Dakis Hagen QC, James Weale and George Gordon for the Respondent (instructed by Hughes Fowler Carruthers)
Tiffany Scott QC for the Trustees (instructed by Farrer and Co)
Hearing dates: 25 to 28 February and 1 March 2019
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Crown Copyright ©
MR JUSTICE MOOR:-
The Trusts
Year Profit share Net of trust tax Net of all tax 2019 £1,948,473 £1,543,530 £1,086,060 2020 £2,226,436 £1,749,539 £1,238,940 2021 £1,689,191 £1,340,046 £ 943,455 2022 £2,176,610 £1,729,982 £1,211,536 2023 £2,598,880 £2,067,798 £1,443,784
The Schedule of Assets
The respective positions
"[W] is not seeking to take capital from the trust…what she is seeking is a sensible, fair and reliable way of having an income fund made available to her which doesn't involve a lot of future litigation."
The law
(a) The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity, any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;
(b) The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
(c) The standard of living enjoyed by the family before the breakdown of the marriage;
(d) The age of each party to the marriage and the duration of the marriage;
(e) Any physical or mental disability of either of the parties to the marriage;
(f) The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
(g) The conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it; and
(h) The value to each of the parties to the marriage of any benefit which, by reason of the dissolution …of the marriage, that party will lose the chance of acquiring.
(a) The sharing of matrimonial property generated by the parties during their marriage;
(b) Compensation for relationship generated disadvantage; and
(c) Needs balanced against ability to pay.
"For their part, the judges who administer this juris\diction 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…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….), 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."
The oral evidence
The evidence on behalf of the Trustees
(a) The dynastic nature of the Trust;
(b) The lack of significant capital distributions to any beneficiary over many years;
(c) The fact that the Fund generates such a high income for its beneficiaries;
(d) That the Wife herself is not a beneficiary;
(e) That the Fund is not a nuptial settlement; and
(f) That they might then feel an obligation to make a capital distribution to the Husband himself.
My assessment of the Wife's reasonable needs
Works to the former matrimonial home £50,000 Cars £65,000 AB's fund £250,000 Duxbury lump sum £4,100,000 Total £4,465,000 Less bank accounts (£215,000) Lump sum required £4,250,000
The Husband's ability to pay
Year 1 £105,000 Year 2 £ 84,000 Year 3 £ 63,000 Year 4 £ 42,000 Year 5 £ 21,000
Mr Justice Moor
1 March 2019