Adjournment of capital claims for 10 years. Discussion of principles. No assets.
H, 50 was an LIP, W was 40, and represented. It was a 20 year marriage that produced two children, cared for by W but both were ill with ME.
H had been tardy in disclosure and had not obeyed directions. At a third aborted FDR the judge said ‘Enough was enough’ and set the matter down for trial.
W’s cross examination was performed by the judge pursuant to FPR part 3A.
In 2014 there was some evidence that H was very wealthy and a tech entrepreneur, however at trial he was living out of the jurisdiction and claimed to be unemployed and penniless. H claimed to be applying for a job producing £90,000pa, disputed by W who said such employment would be remunerated at £300,000pa.
W was on benefits with little prospect of obtaining employment because of child care.
After a 3 day trial the judge concluded that W had been honest, and H had not been forthcoming with information or the truth.
The judge recited s25 and s 25A MCA 1973.
The difficulty in the case was presented by counsel for W, seeking a lump sum of £6m plus on the first day of the hearing, but accepting, at the end of the courts investigation that it had failed to produce any asset from which a lumps sum could be paid. Furthermore, despite bank statements showing expenditure on luxurious living, the judge could not conclude H had wealth.
W’s case now was that in view of the “complete failure of the husband to be transparent and clear in these proceedings, the wife would ask that the court adjourn her capital claims” on the basis that “it may well be that she will have to restore the matter to court in future”
The judge considered authorities on whether capital claims should be adjourned or not.
The judge reminded himself that earlier cases suggest that an adjournment of capital claims should only be granted where there was a real possibility of capital from a specific source becoming available in the near future (see the very detailed analysis of Bracewell J in MT v MT [1992] 1 FLR 362)
But some more recent authorities (see, for example, Roberts J in AW v AH [2020] EWFC 22, Mostyn J in Quan v Bray & Others [2018] EWHC 3558 and Sir Peter Singer in Joy v Joy-Marancho and Others (No 3) [2015] EWHC 2507) illustrate the justification of a departure from normal practice in slightly wider circumstances which do not necessarily include a real possibility of capital from a specific source becoming available in the near future.
Should there be a limit on the length of the adjournment? the judge asked. Roberts J in AW v AH adjourned capital claims for seven years (when the husband was to reach the age of 70). Mostyn J in Quan v Bray adjourned the capital claims indefinitely.
From the authorities HHJ Hess concluded:-
‘The emerging principle from these cases might be summarised as follows: If a litigant engages in conduct, which may include full or partial non-disclosure, which causes the court to conclude that a once-off division of capital now is likely to cause unfairness and injustice to the other party then the court, in exception to the normal practice, has a discretion to decide that the normal desirability of finality in litigation should be overridden to preserve the possibility of a fair outcome for the parties’
In my view the facts of the present case justify my adjourning the case for a ten year period – my view is that this period holds the balance between my wishing to give the wife an opportunity to have a fair chance at receiving some capital provision and the interest in the finality of litigation.
Turning his mind to maintenance, deciding that H would find employment in the near future, and ordering £5000 pcm for W[1], the judge said:-
‘Taking into account the provisions of Matrimonial Causes Act 1973, section 25A, I take the view that the proper order to make is an extendable term order. The first payment will be due on 1st May 2023 and the final payment will be due on 1st August 2032 (unless it has been varied or discharged in the meantime)’
I have linked the ten year period to the one referred to above in relation to the re-opening of capital claims as it is feasible that an extension and capitalisation claim might occur simultaneously. This order will be subject to CPI upgrading on 1st May 2024 and each anniversary thereafter.
The judge added a PS warning the profession to be vigilante for the ability of dishonest parties to manufacture bank statements (and other documents) !
[1] In effect global maintenance, H not subject to CMS as not within jurisdiction.
