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Summary Case Law Update: X v X (application for a financial remedies order) [2016] EWHC 1995 (Fam)

July 28th, 2017

 

The parties met in 1996 when they were in their 20s. Their divorce was based on 5 years’ separation and at the time of the hearing they were in their 40s. There were four children of the family whom all lived with the Husband and he had been the primary carer. The children had no contact with the wife who had a history of alcohol addiction (she had, however, not drank since January 2013).

The husband set up a business in 2000 and held some personal shares with the company. The remaining shares were held in two discretionary trusts and the husband’s father was the settler of those. Mr Justice Bodey’s Judgment was required to make a decision on the following issues:-

1. At which date the company shares should be valued.

2. Whether the trust was a resource available to him. He was a beneficiary.

3. Whether the shares held by the husband should be discounted on the basis of his unique importance to the company.

4. Whether the husband’s argument on unmatched contribution should succeed. 5. Whether to make an award based on principles of shared or of needs.

1. Value of Shares The company shares had increased in value by around £15M since the final hearing and the Judgment. The usual authorities referred to did not deal with the period between the final hearing and judgment. The judge decided that a snapshot had to be taken at some time and so ordered that the value at the final hearing should be adopted.

2. The trust as a resource There was a disagreement between the parties as to whether the trust was intended to benefit the husband’s father’s bloodline or the husband and his bloodline. The judge found in favour of the latter argument.

In terms of whether this was a resource to the husband, the fact that the husband was a beneficiary was not conclusive. The trustees also had discretion to appoint trust capital to the husband, which did not extend to any of the other beneficiaries. The judge found that it was fair to assume the husband could benefit from the trust funds. The judge felt that pressure should not be imposed on the trustee. The judge therefore accepted the 50% of the trust capital put forward by the wife.

3. Discount on husband’s shares The parties agreed that the husband held a pivotal position in relation to the future of the company and a discount should be applied to the shares. The wife proposed 2% and the husband 40%. Having heard evidence from the husband, the judge stated that this was not objective and based on “doomsday scenarios” in respect of the market to the husband selling shares. The judge took a broad view and stated that the arguments were “speculative”. He applied a discount of 8%.

There was a question as to whether the husband could borrow against the shares instead of sell them. This could raise a lump sum to pay the wife and therefore remove the necessity to applying the discount. The judge dismissed this idea referring to White v White [2000]. He accepted the benefit to the husband but stated it avoided the inevitable unfairness to the husband if he had to sell.

4. Husband’s Contribution argument The husband argued that he had been both the carer of the family and the main breadwinner. In addition, he had contributed significant pre-marital assets and he argued this should be reflected in the outcome.

A proportion of the funds provided by the husband were paid into the matrimonial home and so the judge did not move away from the rule that such payments become part of the matrimonial property. The husband’s savings of £500,000 brought to the marriage could not be precisely quantified given the time that had passed but the judge stated that they would be taken into account in a broad way when considering the yardstick of equality.

The husband argued that he had made a special contribution. The company had a large turnover (several £ billion per annum) and provided evidence from captains of industry stating the husband’s contributions as “genius”. The judge concluded that this was not a case where there had been exceptional special contribution.

In terms of his argument over the domestic contribution, the judge disregarded this. The husband did not allege conduct and accepted that the wife’s previous alcoholism was an illness and that diminished contributions to the children were not her fault. The judge held that the wife played as full a role as she could when she was well.

5. Needs or sharing? The judge accepted that contributions had been unequal but did not accept that it was fair to treat the wife’s needs as determinative of the outcome. The judge applied the sharing principle and did not limit the wife’s claims to needs.

The wife did accept a departure from equality due to the unequal contributions. The judge therefore adopted the wife’s percentage of 37.5%. This was now of a smaller pot than the wife had originally put forward due to the discounts applied. The sum of £13.854m would, however, meet the wife’s needs and meet her income needs in line with the Duxbury tables.

 


 

Written by

Rebecca Stewart

Having obtained her A Levels from the Royal Latin School in Buckingham, Rebecca Stewart went on to obtain a Legal Secretary Diploma through Pitmans Training and immediately following qualification secured a role at Hawkins Family Law. Following that she discovered her true ambition lay in becoming a Legal Executive specialising in Family Law.

In 2012 Rebecca enrolled at Cilex Law School and by 2015 had completed all her level 3 exams, achieving distinctions in 3 of these modules, and is now an Associate Member of Cilex. Rebecca is now working towards her level 6 qualifications and is now able to act as a trainee Legal Executive under the supervision of the Directors of Hawkins Family Law.

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    01908 262680

    enquiries@hawkinsfamilylaw.co.uk

    enquiries@hawkinsfamilylaw.co.uk

    Talk To One Of Our Legal Experts

    01908 262680

    enquiries@hawkinsfamilylaw.co.uk

    enquiries@hawkinsfamilylaw.co.uk

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