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Home > Judgments > 2015 archive

M v M [2015] EWFC B63

Judgment considering the impact of a potentially substantial reduction in a party’s life expectancy on financial remedy proceedings.

The parties married in 1986, when the wife was 29 and the husband 42. They separated in 2008, by which time there were no minor children of the family. The parties sold the former matrimonial home and divided the proceeds of sale between them in approximately equal shares. They then waited five years before the wife petitioned for divorce and issued her application for financial remedy. The wife had sadly been diagnosed with ovarian cancer in January 2014 (one year prior to the final hearing).

The court focussed on two main issues: i) to what extent, if any, should the husband pay a lump sum to the wife? and ii) how should the court deal with the parties' pension entitlements? Arguments had been raised in relation to the pre-marital accrual of a significant portion of the husband's pension, the appropriate approach to be taken in relation to gains on shares received by him since the marriage had broken down and the impact, if any, of the time delay between separation and in seeking an order for financial remedy.

When the case was transferred to HHJ Wildblood QC it was feared that the wife's cancer would have a significant impact on its outcome: if Mrs M were on the point of death, then this would be highly relevant to how the assets, and particularly pension assets, were to be divided and how the court should employ the range of orders available to it. However, by the time of the final hearing, the evidence pointed to the wife not being as close to death as previously feared.

While the case had been transferred to HHJ Wildblood QC because it was felt the particular facts were unusual, the learned judge did not agree. His reasoning is set out at paragraph 19:

"As matters now appear I do not think that the distributive factors are particularly unusual; by way of example if, for the specific fact that Mrs M has cancer, one were to replace that factor by simply stating that Mrs M has a limited and uncertain life expectancy there would be nothing particularly unusual about that. Life expectancy is not a science… I could not possibly approach this case on the basis that Mrs M would sip her last glass of terrestrial champagne on a certain date."

HHJ Wildblood QC noted that his analysis of the life expectancy issue had several implications for the case. He particularly noted the following:

  1. He refused to accept the wife's contention that he should ignore her income from a state pension on the basis that she may have died by the time her entitlement to that source of income arose. 
  2. He accepted that it was unfair to achieve a fair result which was based only on comparative pension incomes and this would depend on life expectancy, how the sums were invested and whether they were invested to allow nothing to be passed onto the next generation. Ultimately how the wife chose to approach her pension was a matter for her to decide. 
  3. He concluded that the best way to approach pension shares in this case was to "have regard to the appropriate fund division based on cash equivalent values and then to cross refer that to the effect on both parties So my way into pensions has been to look at a fair division of cash equivalent values and then to consider whether the income effect of that solution needs to be adjusted in fairness and with a particular reference to need."

The judge adopted the legal principles agreed by the parties' advocates at paragraph 59 of the judgment.

HHJ Wildblood QC granted the wife a pension sharing order, which amounted to an "equalisation of cash equivalent values, taking into account Mrs M's state pension fund and then with some discount for pre-marital acquisition." The judge was satisfied that discount for pre-marital acquisition was appropriate as the husband had made contributions to pension before the marriage and the wife's case was based on entitlement and not needs. The award took account of her contributions to the welfare of the family.

In relation to capital, neither party had attempted to argue that the parties' capital imbalance as it appeared on the asset schedule at the time of the final hearing should be equalised. Rather the wife argued that the husband had had recourse to significant amounts of capital since separation, which she should be allowed to share. This amounted to lump sums drawn from the husband's pensions, shares held by him at the time of separation and the gains made on those shares, savings held at the time of the parties' separation and severance pay subsequently received by the husband.

HHJ Wildblood QC granted the wife a modest lump sum of £25,000, which represented half of the parties' savings held by the husband at the time of the separation. The husband had conceded that he should make a payment to the wife of this level during his evidence. HHJ Wildblood QC accepted that the wife had already received her portion of the pension lump sums and of the shares held by the husband on separation. He found there was no basis for suggesting that the husband had spent his severance pay unreasonably or recklessly. He did not add back any of the husband's expenditure in relation to this "asset." In relation to the husband's funds acquired from gains made on shares, he accepted the submissions made on the husband's behalf, which analysed the judgment of Mostyn J in Rossi v Rossi [2006] EWHC 1482 and invited the judge to conclude that the husband had been entitled to "carry on with his financial affairs post-separation without facing the challenge now made [by the wife]."

Summary by Frances Harris, barrister, 1 King's Bench Walk
___________________

Case No: BP13D00397

IN THE FAMILY COURT, sitting at Bristol


2 Redcliff Street, Bristol

Before:

HIS HONOUR JUDGE WILDBLOOD QC

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Between:

M Applicant
- and - 
M Respondent
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- - - - - - - - - - - - - - - - - - - - -

Ms Ann Hussey QC (instructed by The Family Law Company) for Mrs M.
Ms Fiona Hay (instructed by Lightfoots Solicitors) for Mr M.

Hearing dates: 22nd and 23rd January 2015.
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JUDGMENT
HHJ Wildblood QC:

1. Introduction - This is the hearing of Mrs M's application for financial orders following the parties' separation in 2008 after a long marriage from which there are no dependant minor children. Particular features of the case are that Mrs M has cancer, the parties were aged 42 (H) and 29 (W) at the time of marriage leading to arguments about what are and what are not matrimonial assets, there have been draw downs on pensions and there has been inevitable expenditure and movement of capital since the separation. The focus in court has been on two things: i) to what extent, if any, should Mr M pay a lump sum to Mrs M to reflect capital that he has received or drawn since the separation; ii) how should the court deal with the parties' pension entitlements?

2. Ms Hussey QC, on behalf of Mrs M, argues that there should be a) an account of moneys received by both parties since separation and then an equalisation payment by Mr M to Mrs M and b) an equalisation of the pension funds ignoring Mrs M's state pension (the amount sought on behalf of Mrs M reduced considerably between opening and closing). Ms Hay contends that there should be no lump sum payment beyond a sum of £25,000 conceded by Mr M in evidence and that there should be more limited pension sharing orders than those sought by Ms Hussey. In her initial submissions Ms Hay contended that Mrs M should have the full benefits of two small pensions held by Mr M (Aviva and Howden), that Mr M should pay periodical payments to Mrs M at the rate of £1,100 p.m. and that he should undertake to charge his house to the benefit of Mrs M in the sum of £200,000 (realisable in the event that Mr M predeceases her). By closing speeches Ms Hay recognised the high probability that the court would find a solution to pensions in pension sharing orders rather than by coupling maintenance with a charge against Mr M's property.

3. Background - Mr M was born on the 20th May 1944 and is therefore 70 years old. Mrs M was born on the 30th April 1957 and is 57 years old. They married on 9th August 1986 and have one daughter, L who is aged 27, having been born on 25th July 1987, and who is independent. Mr M had been married before and has two children from a previous marriage who were treated as children of the family; they are S and C who were aged 21 and 17 at the time of the marriage and who did not have their main homes with Mr and Mrs M. The parties separated nearly seven years ago, on the 1st May 2008, after nearly 22 years of marriage. By agreement the former matrimonial home was sold on 2nd June 2008 for £729,500 [C58] and the proceeds were divided in approximate equal shares; the parties each received between £340-£350k [C28].

4. Mrs M says [C187] that she did not consult solicitors until 15th August 2013 and was 'unaware until that time that I had any financial claims in relation to the marriage' [C187]. On 31st October 2013 she presented a petition for divorce under section 1(2)(e) of The Matrimonial Causes Act 1973 (five years separation). Very sadly she was diagnosed with ovarian cancer in January 2014. On 12th March 2014, a decree nisi of divorce was made but it has not yet been made absolute [B13].

5. At the time of the sale of the former matrimonial home a document was signed by both parties recording how the proceeds of sale of the former matrimonial home were to be divided. The document had been drawn up the conveyancing solicitors, Browns, who sensibly wanted to have a documentary record of the agreement that the parties had reached about how the solicitors should distribute the proceeds that they held. Neither party seeks to suggest that that document serves as a bar to the present claims of Mrs M. On its face the document does not purport to prevent claims under the 1973 Act, it was not based on disclosure of resources, neither party had advice from a matrimonial lawyer and, in particular, no mention is made of pensions. I accept that it was entered into after a long period of matrimonial decline and took some negotiation; after it was made and the proceeds of sale were divided both parties went their separate ways and, in the case of Mrs M who accepts that she was the driving force behind the divorce, she then wanted to move on into her new accommodation and new life. I do not accept that either party thought that financial matters had all been resolved at the time of the agreement. They both wanted to move on from the difficult breakdown of the marriage and neither wanted to deal with any more financial issues at the time. I accept that neither of them turned their minds to the claims that the other might make; they treated and used the capital that they each had as their own. Neither of them had regarded the obtaining of a divorce as an urgent issue and so they both waited until the expiry of the five year period necessary for the petition that was issued.

6. These proceedings were started when Mrs M issued her application in Form A on 3rd December 2013 [B9]. Forms E were exchanged on 31st January 2014 (H-C1) and 7th February 2014 (W-C35) and the first appointment occurred before District Judge Arnold on 3rd March 2014 [B12]. On 27th May 2014 a first FDR was held before District Judge Ball [B16]. On 17th November 2014 a further FDR took place before District Judge Waterworth [B21]; when it was clear that agreement was not going to be reached he transferred the case to me for hearing in Bristol and, on 4th December 2015, the case was listed for this hearing [B19]. Narrative statements have been exchanged; Mrs M's is dated 8th January 2015 and is at C186. Mr M's is dated 9th January 2015 and is at C221.

7. Mr M is in good health. He lives on his own at The C, which he owns in his sole name and which is subject to a small mortgage (about £27,000) in favour of the Nationwide.  The net value of The C is £511,439 [A31]. In 2013 Mr M had made plans to sell it but has not kept the property on the market. He was working for HJ but, in about March 2008, he was made redundant and has not worked since. His work history is at C234 and suggests salaries of between £30-100,000 during his period of employment (good salaries but not such as to put him into a league of 'big earners').  In April and May 2009 he drew capital from his pensions and has lived off pension income since [C28]. He says, as is accepted, that he has no paid income and no earning capacity [C225]. He says in his narrative statement that he wishes to remain in his current home that his needs may increase as he ages and requires more assistance around the home [C228].

8. Mrs M lives at 1 SV which she owns in her sole name and which is also subject to a small mortgage in favour of Stonehaven UK Ltd; she took out the mortgage by way of equity release to cover legal fees and dental fees [C58]. It is worth less than Mr M's property having been bought for £190,000 [A31] although it became apparent in this hearing that she has spent a large amount on it.

9. Mrs M was also made redundant in 2008 from her employment with MM [C190] but then found other work with F until she was again made redundant in August 2010 and then, on 5th September 2013, started work as an administrator within the NHS [C190]. As a result of her medical treatment her employment came to an end and she has no earned income. She says that she would like to work but doubts her ability to do so [C191]; her oral evidence that she does not have an earning capacity was convincing and I accept it. Mr M has been paying her £1,000 by way of maintenance since 1st July 2014 and she has been receiving job seekers allowance of £370 p.m. which, she thinks, will cease soon [C191]. However, she has supplemented her income (both whilst working and since unemployed) by having resource to capital.

10. From her share of the net proceeds of sale of the former matrimonial home (£340,000) she bought a property at 10 BR for £315,000 applying some of the remaining money from the sale of the former matrimonial home to the repayment of indebtedness [C189]; she sold it for £310,000 in May 2012 and received a net sum of £241,859.11 from the sale [C59] having by then incurred mortgage indebtedness of £59,572 [C189]. She then bought 1 SV on 21st August 2012 and it now has a net value of £159,275 [A3]; she says that she spent some of the surplus from the sale of the 10 BR property to do work on 1 SV and on living expenses [C190]. A large amount of capital has been spent, as I set out later.

11. In her statement at C194 Mrs M says that she does not wish to invest in annuities because they would be lost to her estate on death but would wish to invest in draw down pensions [C194]. At that same page she says, based on her IFA's views at D70: 'I understand that any funds not drawn down [from pensions] would attract a charge to tax of 55% if I died before April 2015, but that is only after April 2015 by reason of the change in the pension rules, any such residual sum not drawn down would be capable of being passed by me to my estate completely tax free. In contrast, if the Respondent died soon (he is aged 70) all of his pensions which are invested in annuities would be lost…what is now clear is that, if I am granted a fair share of the respondent's pensions, our 3 children will benefit from any undrawn residue from my pensions, whereas they may well receive nothing from him from that source'.

12. The points that Mrs M makes in her statement about the effects of the legislative changes relating to pensions that will come into force in three months time are not controversial. I was also told that:

i) If pension funds are invested in pensions that allow draw downs, the sums drawn down by the pension holder (e.g. Mrs M) would, however, still be taxed in her hands as a top slice of income.

ii) If sums were left in such pensions on her death they could be passed on to family members tax free.

13. Medical evidence - Mrs M's consultant oncologist is Dr KS. In a letter dated 8th July 2014 at D.a she had said that 'the expected median survival rate is 2-3 years from diagnosis'. Diagnosis was in January 2014.

14. In a much less gloomy report dated 4th December 2014 [D50] Dr KS has stated that Mrs M has responded well to treatment with Bevacizumab and that, in the last CT scan, there was no evidence of measurable disease. However she said 'it is most likely that at some point in the future the cancer will recur and she will require further treatment and therefore I would classify the current treatment intent as palliative'. Importantly, she goes on to say [D50]: ' Looking at the Cancer Research UK Statistics for a patient diagnosed with advanced ovary cancer between the ages of 50-59: 53% of them will survive for at least five years and approximately 1/3 of patients will still be alive at 10 years although the average median survival is approximately 2 ½ - 3 ½ years…I think it would be sensible to assume that she will survive at least as long as the average survival at 2 ½ or 3 ½ years and might do better than average such that she could potentially survive for several years beyond this point, although it is hard to predict with any certainty'. 

15. Submissions about life expectancy – In her unhelpful report at D69 Ms P, an IFA instructed by Mrs M, stated that the average life expectancy from birth of a male born in the UK is 78.9. She accepted in evidence that she had given that figure in a creative attempt to allow a suggestion of some apparent equalisation of life expectancy between the two parties. I do think that that was thoroughly unhelpful, as Ms Hussey accepts and Ms P appeared to recognise in her evidence. It does not help to state the expectancy of a new born child when reporting on the life expectancy of a 70 year old. Mr M's life expectancy is between 15.8 and 17.2 years (At a Glance).

16. Ms Hussey has submitted that 'the normal life expectancy for a 57 year old woman is 31 years (see At a Glance table 15). On the evidence the court cannot conclude where within the range W will fall other than to say it is at least 2 ½ and could be 10 years if she falls within the one third category. What, of course, is unpredictable is what advances there will be in medical science during that period which will further improve survival rates. H's life expectancy according to the same table is between 15.8 and 17.2 years although the IFA quotes statistics that average male life expectancy is 78.9. It is therefore possible that despite her medical condition W would outlive H'.

17. With respect to Ms Hussey, even that analysis is not correctly based when the medical evidence is read. The medical evidence is that 'approximately 1/3 of patients will still be alive at 10 years although the average median survival is approximately 2 ½ - 3 ½ years' – it does not say that 1/3 will survive only to 10 years. I accept Ms Hussey's submission that, as medical care advances, there may be some extension of that period (- there have been considerable advances in treatment of cancer).

18. The upshot in my opinion is that there is great uncertainty about the life expectancy of Mrs M. Based on the median figures it has to be recognised that Mrs M is very likely to have a reduced life expectancy but it is pure guesswork as to how reduced it may be. Statistically it could be that she will survive for only a few more years. It is possible that she will survive for significantly longer. I accept Ms Hussey's submission that it would be wrong to discriminate against or in favour of Mrs M on the basis of her ill-health, although I question whether it was necessary even to state that obvious principle.

19. What is more I think that it is important to recollect the vagaries of arguments based on life expectancy. This case was transferred to me because it was felt that the facts of it were very unusual. As matters now appear I do not think that the distributive factors are particularly unusual; by way of example if, for the specific fact that Mrs M has cancer, one were to replace that factor by simply stating that Mrs M has a limited and uncertain life expectancy there would be nothing particularly unusual about that. Life expectancy is not a science. Similar uncertainties could have been advanced if, for instance, Mr M had married a woman who was now 80 (ten years older than him). Or, if he had married a woman who was now 75 and drank more than 21 units of alcohol (i.e. about three bottles of wine) a week. Or if he had married someone in a high stress job. Following the analysis of Duxbury awards from the case of White, I could not possibly approach this case on the basis that Mrs M would sip her last glass of terrestrial champagne on a certain date.

20. Also, her life expectancy cannot be treated as fixed by findings based on a balance of actuarial or medical probability. No sensible person would run their personal finances on that basis. Findings about life expectancy based on median figures would be even more unsatisfactory and unjust; that approach could result very significantly to Mrs M's detriment within these proceedings.

21. What I have said in relation to life expectancy has a number of other implications on the specific facts of this case. I wish to list three.

22. First, I see no reason why I should ignore the fact that Mrs M has an entitlement to state pension that will only be received from the time that she is 66, although Ms Hussey sought to suggest that I should do so. Mrs M will be 58 in three months time. It is at least very possible that she will survive to receive that pension. Mrs M's own case is that the court should not assume death at any fixed period and that pensions should be approached on cash equivalent values rather than income returns. If cash values are used I see no reason why I should leave any established entitlement out of account. What is more, Mrs M can plan her finances on the basis that she knows that, if she does survive to the date of receipt of her state pension, there will be a 'kick-in' of further income at that stage from that state source; she can calculate her budget between now and the date of receipt of that pension on that basis (I have no doubt at all that any financial adviser would suggest that approach to her finances). One cannot simply air brush out of the case her state pension entitlement based on life expectancies.

23. Secondly, I accept that it is very difficult and unsatisfactory to achieve a fair result that is based only on comparative (e.g. equalised) pension incomes. To achieve equality of income depends on life expectancy, how the sums are invested and, in particular, whether they are invested in a way that leaves nothing from the funds to pass on to the next generation.

24. Third, the best way to approach pension shares on the facts of this case is to have regard to the appropriate fund division based on cash equivalent values and then to cross refer that to the effect on both parties. So my way into pensions has been to look at a fair division of cash equivalent values and then to consider whether the income effect of that solution needs to be adjusted in fairness and with a particular reference to need. Ms Hay has helpfully referred me to reported cases where different approaches have been taken (her submissions are at A23 of the bundle). I do not wish to cite those passages because I do not regard it as necessary or helpful to do so (they are from RP v RP [2007] 1 FLR 2105, B v B [2012] EWHC 314 (Fam), [2012] 2 FLR 222, Martin-Dye v Martin-Dye [2006] EWCA Civ 681, [2006] 2 FLR 901 and SJ v RA [2014] EWHC 4054). Discretion is fact and case specific. Having reflected on the fair approach to pensions in this case I have adopted the approach that I have set out above; to use equalisation of incomes as the primary basis for the distribution stage of pension analysis in this case would be wrong and utterly speculative although income consequences are a useful cross check.

25. Capital – At appendix one to this judgment I set out a table of the capital held by the parties. The combined total of the assets is £664,043 (I have removed the value of the cars from the schedule). The schedule reveals that Mr M has his house with a net value of about £511,000 (it bears a mortgage of £26,911). Mrs M has her house which is stated to have a net value of £159k (it bears a mortgage of £25,025) based on the original purchase price for the property and ignoring that she has spent a large amount on it (which she estimated, off the cuff, at £60,000). Further, Mrs M has spent a great deal of the capital that she has had since separation and it was very difficult for her to explain in evidence where it had gone; I deal with this point later.

26. Beyond the properties, the parties have small amounts of residual capital and some indebtedness. In Mr M's instance the indebtedness already exceeds the residual capital sums by £32,000. In Mrs M's instance there is a modest capital balance after taking into account a payment that Mr M made to her in 2014 (a payment which totalled £93,391).

27. Neither party has sought to argue the case upon the basis of the capital imbalance that exists on current figures. That is, neither party has prepared this case on the basis that I should have primary regard to the capital imbalance on the asset schedule below and equalise / fractionalise that. To attempt that now, where Mrs M has spent a lot of money on her property and its true value is not known, would be impossible on the evidence before me.

28. Rather than that approach, Mrs M has directed her energies and money to contending that Mr M has had recourse to large amounts of capital since separation. Ms Hussey bases Mrs M claim to a lump sum on the capital that Mr M has had during that period and a notional claim to unpaid maintenance (maintenance which, during the period of separation had not been sought, offered or ordered). The difficulty that this creates is that the building blocks of a detailed account have not been provided to me and I am being asked to look at matters broadly on the basis that the 'husband has had assets and the wife has not shared in them' – so I was told in opening. I will set out the capital sums involved now but will return to this point later. I do think that this area of the case has been made unduly complex and messy. Further, from the table at A10 which sets out the basis of Mrs M's claims, Mr M has already made a full account to Mrs M for one half of the first two sums (pension draw downs and G shares).

29. This case gets nowhere near a level where Mrs M can show that, during the significant period between separation and adjudication, Mr M has been involved in extravagant living or reckless speculation. In the case of Vaughan v Vaughan [2007] EWCA Civ 1087, [2008] 1 FLR 1108 the following was said by Wilson LJ (as he then was) after citing the well known words of Cairns LJ in Martin v Martin [1976] Fam 335: 'a notional redistribution has to be conducted very cautiously, by reference only to clear evidence of dissipation (in which there is a wanton element)'. In opening I was told that Mrs M's case was that 'the court is not being asked to conduct a fine tuned account. Rather, the court is being asked to consider that the husband has had assets and the wife has not shared in them'; that submission came as a response to my expressions of immediate concern about the way the case was being lined up on this issue. As I predicted then, what followed was an attempt in evidence to trace where Mr M's money had gone with a reciprocal attempt being made to trace where Mrs M's money had gone.

30. The focus of Ms Hussey in presenting Mrs M's claims for a lump sum was on the figures that she sets out in paragraph 40 of her written opening. Of those sums, Mr M has accounted to Mrs M for half of the lump sums drawn from pensions and for one half of the G shares. He accepts that he should pay 50% of the sum 'in a savings account on separation'. He gave persuasive evidence about how the severance pay had been taken up with payment of tax, bills matrimonial indebtedness and living expenses. And as to the final payment on that list (gains made on H shares) the tracing evidence was much less clear but I note that the sum in the table is £99,870 and that he has spent at least that amount on the three children since separation. I will now set out some of the detail.

31. The sums in question can be seen at A10 and are as follows:

Description

Amount

Comment by me (Judge)

1.

Lump sum drawn from pensions

173,049

The manner in which this was taken and applied is shown at C72. It was paid as to £116,882.88 to the payment of Mr M's mortgage, as to £19,990 for the purchase of H shares, £30,000 for a flat for C and £14,949,24 for the purchase of RBS shares. Mrs M has already had her share of this (see below).

2.

51,299 G shares held at separation

  33,819

C81 shows that these were bought in 2006/07 and were sold on 22.7.2010 for £34,247. It is accepted that Mrs M has received a sum to represent 50% of this sum.

3.

Gains made on H of £102,627.

102,627

This is also derived from C81. Of that sum, however, the net amount of £20,517.41 was received on 12.11.2014 [F3] and £57,315 was received on 1.12.2014 [F5]. The sums so received were applied to the payment of the interim lump sum of £93,391 to Mrs M to compensate for Mrs M's shares, not in this asset, but in the first two assets in this table – pension draw downs and G shares.

4.

Savings account money held at separation

50,000

C244 shows the sum held in account 80339970. Mr M accepted in evidence that Mrs M should have 50% of this sum.

5.

Severance pay of £153,021 less tax, leaving net:

£99,870

There is a breakdown of how this money was applied at F14a and F13. The balance was used up in living expenses, Mr M said.

Total

459,365.00

 


32. The sum that Mr M paid to Mrs M for her share in the first two of the above assets is £93,391. £66,000 of that payment was made shortly before the commencement of this case (i.e. in December 2014); the rest had been paid earlier in the same year. That sum of £66,000 was calculated on the basis of the letter at F6. The calculation that can be gleaned from the narrative of that letter is as follows:

Pension lump sums drawn down

173,000

51,299 G share proceeds net of CGT

33,000

Add in pension lump sum received by Mrs M and the sum received from insurance on ring

21,000

Total of above

227,000

Divide by 2

113,500

Less sum already paid

48,391.80

Sum due and paid

66,000.


33. Thus of the five assets in the above table, Mrs M has had her share of the first two and Mr M accepts that she should have a full 50% of the fourth asset (the £50,000). The issues remaining relate to the third and fifth assets in that table, the H share gains and the severance pay. The more detailed calculations of Ms Hussey at A11 are not necessary.

34. Before dealing with issues of principle I would like to set out what is said about those two remaining assets (severance pay and the gains on H shares).

35. Severance pay - When Mr M was made redundant in 2008 he received a severance pay. It totalled the amount set out above. He says that he has given an incredibly detailed account and full account of how the money was spent. That account is at F13. Some went on tax, some went on debts and some went on loans that he had taken out to get the former matrimonial home into a fit state for sale. He also had to buy a car because he lost the use of the company car. The detailed evidence to support the analysis at F13 is not before me and the issue was dealt with very much on the evidential hoof by both sides in the witness box.

36. I am afraid that I did not find the way that the issue was dealt with in Ms Hussey's oral or written opening helpful – she took the line that the whole sum should be taken into account as it stood in 2008 (7 years ago) and Mrs M should have 50%. That approach ignores the liabilities that had to be met from it and the other legitimate expenditure that Mr M had to meet.

37. The total amount that Mr M says that he had to pay from this sum either directly or indirectly towards the matters that I have referred to above (and have ringed at F13 and are numbered on the schedule as follows: 1, 2, 3, 4, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 12) comes to £102,013.70. That would have left Mr M with just over £50,000 to fund his living expenses until he drew his pensions over a year later.

38. Even before I get on to the issues of principle (I cite and give references for the cases of Vaughan and Martin later) and delay (I do the same in relation to the case of Rossi later) I can see no merit at all in the approach that has been adopted to this sum of money on behalf of Mrs M. I think it quite impossible to add back in any sum in relation to this 'asset' now given what I have already said on a very simplistic account. I certainly have absolutely no basis for saying that Mr M behaved recklessly or unreasonably in his use of this sum nor is there any suggestion that in spending it as he did he was deliberately acting contrary to the interests of Mrs M (he was not trying to sink the money into obscurity or concealment).

39. Gains made on H shares of £102,627 - This is item 3 on the above table of sums that Mr M has received. What happened in relation to these can be seen at C81. Following the separation, Mr M bought 79,338 shares in H J Limited. They cost £19,990. He appears to have paid for them out of savings made from his severance pay [F12] although I accept that, in his mind, he accounted for these as coming from the lump sums drawn from his pension (C72) – that is, knowing that his capital would be replenished by the lump sums drawn down from the pensions he considered himself able to buy these shares from his severance money. I do not accept the suggestion that he gave a dishonest presentation of the source of the purchase of these shares (a suggestion based on the difference between the accounts given by him at C72 and F12) – in fact it would make no difference now whether the money came from either source (i.e. pension or severance)

40. Having invested the money in these shares successfully he was then able to benefit from the investment and used it, in particular, to fund the interim payment of £93,391 to Mrs M in 2014 and also to assist his daughters. He did so at a time when, he says, he did not anticipate that Mrs M would be making further claims against him and now has no spare capital left over. He said that he does not accept that Mrs M should have any lump sum to reflect the gains that he made on these H shares.

41. Mr M said that his agreement to pay Mrs M £25,000 will take his mortgage potential to maximum (since he will have existing net indebtedness of £32,000 [see the schedule of assets], the further £25,000 to pay and has a maximum of £65k that he could draw on his mortgage – C178).  That would mean the net value of The C (his home, which is entered into the schedule of capital at a current net value of £511,000) would reduce in net value by a further £57,000 leaving it with a net value of £454,000. If he had to sell The C, he said, he would need between £400 – 450,000 to buy another property and, after the costs of purchase and moving, there would be no capital surplus to make a further lump sum payment. If he remained in the C with a mortgage enhanced by the demands of debts and a £25,000 lump sum his outgoings would be about those set at E109, he said. The list of expenditure would be reduced due to the repayment of bank loans and the cessation of subsistence payments to daughter and, on that basis, he would have outgoings of about £2,200 p.m. made up of mortgage payments of £1,383.86 and other modest outgoings of £774.

42. Further, Mr M says that he now has no sum of money to represent these shares, the gains were as a result of a small initial investment that he chose to make and which has borne financial fruit, he has made payments to his daughters that equal the amount of the gains in question, there is no suggestion that he was spent the money recklessly, he has accounted for it all, Mrs M does not have a needs based argument for a share in what he had and, if she had had her share of this money in 2009 (50% of the initial investment of £19,990) it is highly unlikely that she would have produced anything like the benefits that he has made through wise investment. As to the latter point (she would not have produced this type of investment return) I am in no doubt that Mr M is correct given the manner in which Mrs M has used up her own capital (I deal with this in the next heading). If she had received £10,000 in 2009 it would have gone by now, of that I am quite sure and I say that without implying any hint of criticism of her; it merely reflects that she is not nearly as careful with her money as Mr M (who spoke about money with a remarkable fluency).

43. Mrs M says, through Ms Hussey, that he was trading with money which should have been hers and the mathematics of her case is that she seeks a full 50% of those gains. Taking this head of claim in isolation that would involve a lump sum payment of £51,313 to which would have to be added the sum of £25,000 that Mr M has conceded. In closing Ms Hussey said that, if I do not order that further lump sum, I should consider ordering that Mrs M should have an enhanced pension share to take account of that sum.

44. I accept that it would be possible for Mr M to sell The C, pay off his indebtedness and pay a modest additional lump sum to reflect that he has had these shares. Although I do not have details of alternative properties that he could buy, I do not think that it is necessary to have estate agents' particulars to reach a conclusion that he would be able to meet his housing needs if he had to do so.

45. I do not find the issues relating to the gains on these shares easy. I have spent some time reflecting on them. I return to them later since I need to cite various points of principle and some other facts of the case before expressing my conclusion.  Other than the gains on those shares, however, I find the arguments that Mrs M has advanced in relation to the five matters raised in paragraph 40 of Ms Hussey's opening very easy to resolve. Mrs M has already had her share of the first two (pension lump sums and G shares). Mr M concedes that she should have £25,000 to reflect the money that he had in a savings account. The claim against the severance pay has no merit for the reasons that I have set out.

46. Capital used by Mrs M - Mr M says that Mrs M has used large amounts of capital since the separation. Save for the ring insurance and the small pension drawdown (both in the table below and both of which were taken into account correctly when calculating the payment to Mrs M of £93,391 above) the table is one of sums spent rather than additional assets had. The table at A10 relating to Mr M (pension drawdowns, "G" shares, etc) relates to additional assets or resources that he has had.  The sums that Mrs M has had are set out at A20 as follows:
 

Description

Amount

2008, from her share of the sale proceeds of the former matrimonial home

25,409

Mortgage on the first property, which she bought on separation (corrected from £70,000)

60,000

2012 Surplus capital on sale of that property

61,849

2013 Pension lump sum

13,578

April 2013. Insurance payment for ring

7,596

November 2013. Mortgage on the second property

23,450

2014 – Paid by H to W

93,000

Total

284,882


47. However one views the above list it does represent heavy expenditure by Mrs M. Mr M was not paying her any maintenance before July 2014 from his pension income but for at least some of the time during the period of separation she was working (see C198). She was asked where the money had gone and, although I do not for a minute think that there has been any untruthfulness in her answers or any attempt by her to conceal what has happened, the fact remains that she found it difficult to explain where the money had gone. I wish to stress that I am not being critical of Mrs M (who I found a very engaging, polite and open witness); I am sure that she will understand that I do need to record this point and the difficulty that she had in explaining how the money had been spent. More than anything this shows how very difficult it is to engage in an account of domestic money spent over a period of the length in question.

48. Pensions – Kate Routledge of Collins Actuaries has been jointly instructed as an expert to advise on pension issues. Her main report is at D6 and is the core evidence in relation to how the pensions might be divided. There is also information from IFA's. Three particular points are important when thinking about pensions in this case:

i) Mrs M does not wish to invest in annuities. They would mean that, when she dies, the sums invested would be lost (even after April 2015). However, if she did do so and because of her medical condition, she could take out enhanced annuities which would give an enhanced return of 8.89% - D80 and D81;

ii) If Mrs M does not invest in annuities she would be able to draw down the pension find after April 2015 at such rate as she thinks fit but would pay tax on the amount drawn down, as I describe later. Thus when approaching 'draw down' pensions one can approach income returns for her on that basis;

iii) If she does not invest in annuities any sum left in the pensions could be left to others tax free on her death after April 2015.

49. Mrs M instructed an independent financial adviser, Ms. P, who has filed a report at D65 and who gave oral evidence. Ms P's evidence about the availability of pension 'products' that are available on the market and, in particular, enhanced annuities, was helpful. However, for reasons that I do not know, her evidence and report strayed well beyond that of an IFA and sought to trespass on to the territory of Ms Routledge, making recommendations about pension sharing outcomes. In that latter respect I found her evidence to be very far from helpful for these reasons:

i) Her report made no attempt at considering the position of Mr M. She wrote her report on the basis of what she considered would place Mrs M's welfare as the paramount consideration. That is perhaps not surprising when she was involved in giving advice to Mrs M about what was best for her (Mrs M was her client). It did not help me at all, however, when trying to find the fair solution as between these two parties.

ii) She sought to depart from the views of the trustees of the Nortel pension and of the jointly instructed expert, Ms Routledge in relation to the Nortel pension. As a result she based her figures in relation to that pension on incorrect assumptions (D68). Her assumptions were not put the jointly instructed expert before being advanced.

iii) She added back into the pensions, pension lump sums that had been drawn by Mr M in 2009. Those sums had been applied as capital six years ago. Further there has been the equalisation payment by Mr M to take account of this (that is the £93.3k payment made by Mr M last year). So adding them back in, even notionally, was without any foundation at all and led to waste of time and money as well as adding to the density of the case that I had to hear.

iv) She made unhelpful remarks about Mr M's life expectancy in the mistaken attempt that I have described to equalise life expectancies.

v) She took the wrong date for the time at which Mrs M could obtain the state pension (saying that it was 12 years away at D68) and then excluded the state pension of Mrs M in its entirety.

vi) She made a detailed recommendation about the division of the pension funds without considering the income consequences of this (D68) and did not make any attempt, in particular, to consider the effect on Mr M.

vii) She acted apparently without a disclosable letter of instruction and so the basis of her report could not be identified and purported to give opinion (i.e. expert) evidence without following any of the very necessary provisions of Part 25 of The Family Procedure Rules 2010.

50. Mr M's pensions  - They have the following values:


 

Cash equivalent

CE if lump sum had not been taken

Gross pension in pay

Gross pension if lump sum had not been taken

Internal or external transfer

Charges

RHM No. 210449

378,656

540,656

18,480

27,880

External only

£1,900 + VAT

N Networks No. 00949917

140,415

187,415

9,120

12,160

Either

£750 plus VAT

HJ No. 100053

42,321

70,321

2,120

3,950

External only

£1,350

Armed Forces Pension

66,504

66,504

4,600

4,600

Internal only

 

Aviva F22435185

22,061

22,061

1,470

1,470

External only

Normally nil.

State pension

199,400

199,400

12,790

12,790

 

 

Total

849,357

1,086,357

48,580

2,850

 

 

 
51. Ms P gave oral evidence about the N pension. The pension has been added to the above schedule on the basis of 50% of its cash equivalent value because it is currently underfunded and is being assessed for entry into the pension protection fund. Unhelpfully Mrs P took it at its 100% value in her report. The value of the pension is given at its 50% value by Kate Routledge; her evidence about this is at D18 and D19 where she states that 'the trustees have stated that they feel a better reflection of the value of the benefits that will actually be paid from the plan is the reduced [i.e. the 50% value']. Ms P accepted that, because it remains only in the assessment period for entry to the protection fund, it could be that the pension remains outside that fund, and therefore could remain underfunded. Ms Routledge has said that the 50% value is the most reliable way of approaching the pension and I see no reason to depart from the views of the jointly instructed expert (who was not asked to give oral evidence).

52. Mrs M's pensions  - These are:

 

Cash equivalent value

Comment

State pension

128,700

She is not able to access this until her 66th birthday.

Scottish Widows pension P00056683

0

No valuation but said to be 'tiny'.

Skandia Plan PPS 018079916

42,297

W withdrew a tax free lump sum of about £13,500, leaving this. The sum so drawn has been taken into account when calculating the £92,391 equalisation interim lump sum payment.

Total

170,997

 


53. Pre-marital accrual - A feature of this case is that Mr M was aged 24 when he and Mrs M married. Since Mrs M's case is presented largely on entitlement (i.e. sharing) rather than need I asked whether it was being suggested that there should be any discount in Mr M's pension values as a result of pre-marital accrual. I was told that this was being raised by Mr M. It is agreed that about 80% of his pensions had accrued during the marriage.

54. I was referred to often cited cases on this point of H v H [1993] 2 FLR 335 and Harris v Harris (apparently unreported) on this point. In the former case Thorpe J (as he then was) said 'I think that in deciding what weight to attach to pension rights it is more important in this case to look to the value of what has been earned during cohabitation than to look to the prospective value of what may be earned over the course of the 25 or 30 years between separation and retirement age'.  In the latter case Thorpe LJ (as he had then become) said: 'I do not myself find the argument on proportionality to the pension earned during the marriage to be an attractive one. It seems to me that it is an ingenious submission but one that, if followed with any sort of confidence might well lead to unrealistic results'

55. I am not in a position to engage in any sort of uplifting of premarital value in the manner conducted in relation the company interests in Jones v Jones [2011] EWCA Civ 41, [2011] 1 FLR 1723. Nor am I able to calculate the validity of Ms Hussey's submissions that the pension accrual would have been accelerated during the currency of the marriage because, as the fund increased in size the amount of investment return would also have increased proportionately and there is a marked increase in pension accrual towards to the end of the period before it is drawn. Ms Hussey also submitted that the intention on marriage that the funds would be available to the benefit of both parties, to which Ms Hay said that the intention of shared benefits would be reflected even if there was a discount for pre-marital ownership.

56. If I do equalise pension funds based on cash equivalents, taking into account the state pension of Mrs M but without discount for pre-marital ownership, I would need to transfer £339,180 of pension funds to her [D13]. That is calculated on this basis:

Husband's pension funds

849,357

Wife's pensions

170,997

Total

1,020,354

Divide by 2

510,177

Deduct wife's pensions

[170,997]

Result

339,180


57. If Mr M's pensions are reduced to the 80% figure (i.e. to the agreed percentage of marital accrual), the figures become:

Husband's pension funds. 849,357 x 0.8

679,485.6

Wife's pensions

170,997

Total

850,482.6

Divide by 2

425,241.30

Deduct wife's pensions

[170,997]

Result

254,244.30


58. Thus, the difference between the two above figures is £339,180-£254,244.30 = £84,935.70. That would be a hefty discount for pre-marital accrual and I do remind myself that discount has a discretionary element to it. I return to this point later.

59. Agreed legal principles. At my request the two advocates have very helpfully agreed the following core principles of law:

i) A party to a marriage may bring a claim for financial orders at any time if those claims have not been dismissed.

ii) No claim between (ex) spouses is statute barred however in exercising its discretion the court may take into account any delay as one of the circumstances of the case.

iii) The court is bound to have regard to the s25 criteria.  These are not hierarchical.

iv) The first task for the court is computation the second is distribution.

v) The overarching principle is to achieve fairness between the parties.

vi) Fairness may to be achieved by the equal sharing of the matrimonial acquest.

vii) The distributive award will be informed by sharing, need and compensation.

viii) Arguments as to compensation are not engaged in the instant case.

ix) Where need is less than sharing the latter will prevail in the distributive award.

x) Pensions had historically been considered by the courts as a benefit lost to an ex spouse. Subsequent amendment to the MCA permitted orders to be made for the benefit of a spouse against the other spouse's pension to provide the benefit of income from the pension fund by way of PSO or AO.

xi) The budget changes will enable access to the capital in pension funds from April 2015 subject to tax although the exact regulations are not yet published.

xii) Article 8 enshrines the right to a private and family life (which extends to members of the wider family.)

xiii) No person can be discriminated against on the grounds of disability. (Not agreed by H's counsel).

60. As to the last point, it is perfectly obvious that a person should not suffer discrimination purely on the grounds of disability; to say otherwise would be outrageous and illegal. The court must consider disability as a statutory factor under the 1973 Act - s25 (2)(e). Ill-health is an element of disability within the evaluative and discretionary exercise demanded by section 25 of the Act. Where needs do not dominate (and disability in some cases, not this, might be presented as creating specific additional needs, such as for medical care) and a case is based entirely and validly on sharing, there is no reason why there should be a discount or uplift based on disability in my opinion. Indeed, I see no reason why there is not continuing value in the jurisprudence expressed in some pretty ancient case law – see e.g. M v M (Life Expectancy) [1993] 2 F.L.R. 723 and the old case of Wachtel v Wachtel, [1973] Fam. 72 where the following was said in relation to remarriage:  'So far as the capital assets are concerned, we see no reason for reducing her share. After all, she has earned it by her contribution in looking after the home and caring for the family. It should not be taken away from her by the prospect of remarriage'.

61. Where, as in most cases, needs are the governing factor, the needs of both parties have to considered and will dominate sharing – thus in another case, if there was £200,000 (made up of cash and pensions) to be divided and Party A was on the imminent point of death, the needs of the Party B would be highly relevant in deciding what was fair. Fairness in that latter type of case would involve not just how the pot was to be divided but how the range of orders available under the Act should be employed –it would not be sensible to make full pension sharing orders in that type of case knowing that the value of the pension sharing order would be lost imminently on the death of party A (since, as Ms Routledge observes at D23 'a pension share once implemented cannot be undone').

62. When this case was first transferred to me it seemed as though that point might be highly relevant to the outcome of the case. It was thought that Mrs M would be unlikely to survive for much longer and that is why I arranged for a very urgent listing. That is now not the case on the evidence that I have.  The outcome of this case that I have decided in relation to pensions is one that, I hope, gives both parties their fair shares of the pension values in a way that also meets their respective needs. Ms Hussey agreed in closing speeches that a valid approach would be to calculate entitlement based on sharing and then cross check it by reference to income consequences leaving it to Mrs M to choose how she wishes to invest the fund.

63. Open offers - Between opening and closing the positions of the parties changed considerably. That is very regrettable in itself given the enormity of the costs involved in this case (Mrs M has spent over £60,000 on costs – A34). As I observed in closing speeches, the parties had put their open positions on the ceiling and on the floor of what might conceivably have been sought. The wife's case on pension sharing was drawn directly from the 'report' of Ms P. I did not find that helpful.

64. Mrs M's position – As at the time of opening, Ms Hussey had said at A14 that Mrs M sought:

i) A lump sum of £124,767, payable as to £65,000 forthwith and the balance within 3 months.

ii) A pension share of £538,479 to include provision for the cost of the implementation of the pension sharing orders to be met by H in accordance with the sums advised by the pension expert at 2.D.27, the sharing to be in respect of the schemes advised by the IFA, namely:

a) RHM    :  100%
b) HJ        :  100%
c) Aviva     : 100%
d) N          :   68%

65. To unravel how the suggested lump sum figure had been formulated was not easy. It was explained to me in this way:

i) Return the figures for the capital that Mr M has had since separation (A10 – the figure of £459,365);

ii) Take out the amount of the pension lump sums that have been drawn down (i.e. take out the figure of £173,049 at A10). This sum is taken out because the pension sharing order that Mrs M sought had been calculated by Ms P on the basis that all capital drawn down from Mr M's pensions should be treated as being held within the pension, when she calculated the pension sharing arrangement;

iii) The resultant figure for the capital that Mr M has had become £459,365-£173,049 = £286,316;

iv) Revisit the calculation that Ms Hussey sets out at A11 and do the following calculation:

Sums available to H

286,316

Divide by 2

143,158

Deduct monies paid by H on account

-93,391

Lump sum due

49,767


v) To that sum, Ms Hussey argued, should be added £75,000 because Mr M was not paying Mrs M maintenance until July 2014 as, she contends, he should have done and, if he had done so, the total amount would have been £75,000. Add the figure of £75,000 to £49,767 and the result is £124,767 (the amount of the lump sum claim).

66. I am afraid that I think that those quantifications of the pension sharing claim and of the lump sum claim were entirely without merit. The pension share based on Ms P's report was as flawed as Ms P's 'report'. The calculation to the lump sum was equally flawed. As to the attempt to capitalise unpaid maintenance:

i) It ignores the fact that, during the period in question, Mrs M has been spending a great deal of capital to supplement her income (if the figure of £284,880 were annualised over the six years since separation, it works out at about £50,000 a year) and;

ii) Mrs M was working for part of the time and I am not provided with comparative schedules of income for that period. I do not have the basis upon which to say what periodical payments should or might have been paid.

67. By the time of closing speeches the claims had diminished significantly. In relation to the pensions it was being argued that I should take out the wife's state pension and then direct a pension share in favour of Mrs M that gave her 50% of the cash equivalent values. The maths was as follows:

Total pensions

1,020,354

Take out wife's state pension

128,700

Pension 'pot'

891,654

Divide by 2

445,827

Deduct wife's Skandia policy C.E.

-42,297

Result

403,530


68. Ms Hussey said that this would have the following effects:

i) The husband would have £28,630 gross p.a. since the order should be made against the RHM scheme in total and the total of the Aviva scheme (which would leave the figure at marginally less than the total figure required by option 2 because the total is £400,717). He would have his N pension which produces £9120 p.a, Howden at £2,120 p.a., the army pension at £4,600 p.a. and his state pension of £12,790 p.a. That would be a gross monthly income of £2,385 and would mean that he would need to accommodate his outgoings to meet his available income. However, that level of income would be sufficient to meet his long term needs. How he adjusts his capital is a matter for him.

ii) The wife would have a number of options for income. If she went down the road of enhanced annuity she would have £39,600 gross (i.e. 445,827 x 8.98% - based on the enhanced annuity rates at D80). If she went down the drawdown route she would have accessible whatever figure she wanted to draw each year until the fund was exhausted.

69. Ms Hussey accepted that the pension share, from her point view, is not governed by need since a lesser sum would meet need. The claim is based entirely on sharing. She submitted that, to force the wife to take an enhanced pension is discriminatory since it is to deny her choice – 'no court should shun human rights', she submitted. The court should not deny entitlement because of discrimination through disability. 

70. I have already dealt with those points but I do observe that it is not remotely discriminatory to say that, if Mrs M so chooses, she could place her pension investments in a mixed fund. Since she can get very enhanced benefits from annuities it may well be thought to be sensible for her to take the advantage of that, to some extent, if she so chooses. It is a matter for her how she wishes to balance her pursuit of income now and how much she wishes to leave in capital reserve for others. Mr M is, in the main, locked into annuities. Further, whatever is ordered, she will have funds with which to make provision for the next generation. She has her house and will also have the lump sum and the surplus of capital.

71. The pension share sought, therefore, in closing was about £130,000 less than was opened (A14). It ignores the wife's state pension (which I do not accept to be correct). It gives no discount for pre marital acquisition.

72. In relation to the payment of a lump sum, Ms Hussey maintained her submissions that the wife should have a full share of the amounts that the husband had received from the severance payments and from the gain on the H shares. She submitted that, if that could not be met from capital, it should be met by an enhanced pension sharing order.

73. Mr M's position - In her opening skeleton argument Ms Hay proposed that:

• The Aviva pension (£22,061) and the HJ pension (£66,504) should be transferred to Mrs M and that Mr M should pay £1,100 each month on a joint lives basis. This is a pension share of 25% of the total pension assets plus periodical payments.  25% is arrived at in this way: £22,061 (Aviva) + £66,504 (Howden) + £170,997 (W's pensions) = £259,562. £259,562 as a percentage of the total pensions of £1,020,354 is 25.4%

• I should accept the husband's undertaking to charge his house in favour of the wife during her lifetime for an amount of £200,000, a charge that would be realisable only if Mr M predeceased her.

74. I say now that, from the very outset,  I did not view the suggestion of reduced pension share, periodical payments and an undertaking to charge his property for Mrs M during her lifetime as being a remotely satisfactory manner of dealing with the case for these reasons:

i) It is achievable and highly desirable in this case that there should be a clean break;

ii) A capital solution is available and can be ordered in a way that meets entitlements and needs of both parties;

iii) The charge of £200,000 is unlikely to be of any real benefit to Mrs M.

75. By the time of closing Ms Hay had also amended her submissions as to the appropriate outcome. She recognised that the court was likely to resolve the pension issues by a pension sharing order and did not advance argument against that in closing. She opposed any suggestion of a lump sum payment, beyond the £25,000 that Mr M had conceded in the witness box.

76. Ms Hay advanced these strong and skilful submissions about pension division. She submitted that the correct solution, if one does go down the pension sharing route, is to order such percentage as would represent a transfer of pension values of £250,000. She says that sum can be achieved by going down three different routes:

i) By way of equal division of the pension funds, taking into account pre-marital accrual equalisation would require a payment of a balancing payment of £254,000 (the figure that I have already set out above). That is on the basis of the hefty discount for pre marital acquisition that I have described.

ii) The next route is to be found at D82 ('scenario 4'). In order to equalise pension incomes it would require a pension transfer of £241,971. The table at D82 shows the pension shares that are necessary to equalise the parties' pension incomes predicated on the basis that an enhanced annuity is taken by Mrs M and that she draws her state pension when she gets it. It is predicated on the basis that Mr M leaves his pension in annuities (as they are now). Both parties would have £36,300 p.a. Ms Hay submitted that until Mrs M drew her state pension her income would be £28,000 p.a (net about £23k from enhanced annuities); this meets her income needs particularly given the additional capital that she will have available to her through her capital surplus and the lump sum payment of £25,000. If the state pension were to be left out of account completely, the figure of equalisation of pension incomes is £301,799 according to Mrs Routledge at D82. Ms Hay submits that the figure of £301k is therefore too high. I note that submission but I also note that this analysis involves all of Mrs M's pensions being invested in annuities and I very much doubt that is a  sensible use of the capital fund given the vagaries of her life expectancy.

iii) At D15, Ms Routledge calculates the pension division that would be necessary if one takes Mrs M as having a life expectancy of ten years and one seeks to achieve equality of pension income on the basis that Mr M's pensions remain in their current form. The transfer that would be needed to achieve this would be £224,000. I do not find that particularly helpful particularly given what I have said about life expectancies.

77. She submitted that the wife's income needs are set out at C55 and C56 and come to a total of £1,309 p.m. The above solution would leave her with an income that exceeds her needs.

78. Ms Hay drew to my attention that there is a disagreement about which pensions should be shared. Mrs M seeks the whole of the RHM pension because it has inflationary increases whereas the Aviva and HJ pensions do not. That aspect is simple; neither party should have the sole benefit of the inflationary benefits of the RHM pension. Ms Routledge says at D83 as follows: 'once the about to share has been decided, Mrs M would not be affected from which of these three schemes the share is taken'. The N pension does not have inflationary increases (D18) and the armed forces pension does (D20); the armed forces pension however is much smaller than the RHM pension (see A7).

79. She also submitted, with obvious correctness, that there remains a difference between pensions and other resources. Post April 2015, if the pension were to be drawn down there would be significant taxation implications because the sum drawn down would be taxed at income tax rates on the basis that the sum drawn down was the top aspect of income. They cannot be treated as if they were capital. I entirely agree. The tax consequences of drawing pensions will remain different to the consequences of realising capital.

80. Ms Hay also drew to my attention the income needs of the husband (E109) and said that his are higher than Mrs M's because he has a mortgage and has debt repayments to make. Of course, it has to be remembered that his house is worth considerably more than the wife's.

81. She stressed that there is no proposal from Mrs M that there should be a 'Vaughan type' adding in of assets. Mrs M tries to take the position back to the time of the separation and argues that the assets that were then available should be divided. Ms Hay submitted that is wrong in principle and I agree with her.

82. She submitted that the statute does not state that the assets should be assessed at the time of separation (the very opposite), to attempt to do so in the manner that has occurred in this case creates injustice, uncertainty and wasted expense; I agree. Any accounting exercise of the type used in this case is bound to lead to injustice; I agree. For instance Mr M gave C £55,000 – is that to be criticised? L has had £15,000 from the money that has passed though his hands. He used some of his money (either severance pay or lump sum drawn down payments) to buy the shares. He has supported L to the tune of £30,000 – why should that be credited back in? He has not made any extravagant payments and there is no identified reckless expenditure. Mrs M said that she could not remember how she had spent much of her assets (and, on occasion, gave evidence that was honest but mistaken as to how the money had been spent); Mr M should not be penalised by the attempt at this hearing by Mrs M to embark upon a full account if he cannot remember exactly how all of his money has been spent.

83. In considering the position since separation it is necessary to bear in mind that the husband was retired (given his greater age that is not surprising). The wife, younger, was working and had an earning capacity. It is therefore unsurprising that he has used capital for expenditure. I agree.

84. In terms of realisable assets (being bank accounts less indebtedness as shown at A13) the husband is already left with net indebtedness of £32,000. If the same exercise is carried out in relation to Mrs M, the result is a net surplus of about £16,000. Add to his schedule of liabilities the £25,000 that he has accepted that he should pay, it leaves his indebtedness at £57,000 (£32k + £25k) – that takes him to a figure that is very close to the maximum drawdown figure available to him from his mortgage (£65k). She submitted that he should not have to borrow beyond that and should not be forced to sell The C to meet these delayed claims based on historical assets; as to that point I consider that it is a matter for Mr M's choice. As a single man living on his own, he cannot be said to need his current house. In fact he should be able to remain there if he chooses on the order that I make but the mortgage will make it tight.

85. Ms Hay cited the case of Rossi v Rossi [2006] EWHC 1482 in which Mostyn J said: 'while no rigid rule can be expressed for the infinite variety of facts that rise in ancillary relief cases I would have thought, generally speaking, that it would be very difficult for a party to be allowed successfully to prosecute an ancillary relief claim initiated more than six years after the date of the petition for divorce unless there was a very good reason for the delay. I agree whole heartedly with the statement of Wood J in Chambers that: 'where a marriage is irretrievably broken down, the parties are to be encouraged to deal with all outstanding issues as reasonably expeditiously and succinctly as possible'. She argues further that, there having been a delay by Mrs M in the presentation of her claim, Mr M should not be called to account for the manner which he has developed and used his capital during the period of delay.

86. Ms Hay submitted that the parties separated in 2008 and Mrs M did not express any dissatisfaction with the division of the assets until 2013 [A19]. At the time of the separation Mrs M was aged 51 and in full employment. Ms Hay submitted: 'she no doubt expected a further 15 (at least) years of working life. H was 64 and on the cusp of retirement. The pensions would not have been shared equally at that stage had W brought proceedings…W appears to have had a spending problem. She has on many occasions got into unexplained debt. H paid this off on several occasions whilst the parties lived together….W has received from H £93,000 since these proceedings were issued….W appears to have spent a large part of the £93,000 albeit some on legal costs…In other words, delay has consequences. There is clear authority to the effect that a party cannot come before the court after a delay of this length and seek to be treated as if they had brought their application promptly: Rossi v Rossi [2006] EWHC 1482…does the fact that divorce proceedings had not been initiated mean that these dicta [from Rossi] are of no relevance at all. It is submitted that this is not the case; the issue must be whether a party was given the impression (as H was) that could carry on with his financial affairs without facing the challenge now made. Furthermore Rossi contains a clear analysis of the evils of analyzing financial circumstances after the event as has happened here'.

87. Analysis - Much of my analysis has already been given.  I have broken off from typing this judgment to survey again the factors in section 25 (2) of the Act and I consider that I have covered all of those factors, save that I have not mentioned the standard of living enjoyed by the family before the breakdown of the marriage (section 25(2)c). I do not consider that that factor adds to the analysis of the case although I accept that the standard of living was reasonable. Both parties will be able to maintain a reasonable standard of living as a result of the order that I make, despite having invested so heavily in the costs of these proceedings.

88. I have narrowed down the issues relating to the payment of a lump sum to the question of what should be done about the gains that Mr M made on the H shares.  I have spent a lot of time thinking about those issues over the weekend since the argument in this case ended on Friday. I am typing this now on Sunday afternoon after that period of reflection. The conclusion that I have reached is that there should be no lump sum payment beyond the £25,000 that has been conceded. I accept the submissions that Ms Hay has made and which I have already set out.

89. As to pension sharing I am left of the very firm opinion that the bracket for this lies between £254,244 and £339,180 for pension transfers to Mrs M. That is equalisation of cash equivalent values, taking into account Mrs M's state pension fund and then with some discount for pre-marital acquisition. The figure of £254,244 is achieved with a full percentage based discount for pre marital acquisition of pensions. The £339,180 figure allows for no discount at all. This again has been an issue that I have thought about very carefully since the hearing ended. I consider that, on the facts of this case, there should be a discount for pre marital acquisition. The parties were aged 42 and 29 at the time of the marriage. Mr M had made contributions to the pensions before the marriage. Mrs M's case is based on entitlement not need. The order that I make reflects in very full measure her contributions to the welfare of the family and leaves both parties with sufficient to meet their needs. The extent of the discount is not capable of being proved on actuarial figures or a strict mathematical basis and so there must be an element of discretion. The discount is real and has impact on the figures but, I hope, is balanced.

90. My opinion is that a discount of £84,935 in cash equivalent values is too high for this factor and is not necessitated by need.  Having looked at a basis for allowing pre marital ownership to be reflected in the order but not on a full 80% basis I have looked at the pensions themselves. I bear in mind that neither party should have the whole of the benefit of the inflationary advantages of the RHM pension and consider that the following represents a fair division of the pensions within the bracket that I have identified:

 

100% CE

% to W

H's share

W's share

RHM pension

378,656

60%

151,462.40

227,193.6

N

140,415

0%

140,415

0

HJ

42,321

100%

0

42,321

AFPS

66,504

0%

66,504

0

Aviva

22,061

100%

0

22,061

State (H)

199,400

0

199,400

0

Transfer to Wife

0

0

0

291,575.6

Skandia (W)

42,297

100%

0

42,297

State pension (W)

128,700

100%

0

128,700

 

1,020,354

 

557,781.4

462,572.6



91. The above represents a division of the pensions as to 55% to Mr M and as to 45% to Mrs M. It means that Mr M has a gross pension income of about £33,500 p.a. (I cannot give a precise figure for this but I note that a transfer of £301,799 would have left him with a pension income of £33,400 p.a. = D82, 'scenario 5'). It takes into full account the wife's state pension and meets her entitlement on a sharing basis. It also satisfies her needs and the needs of Mr M.
 
92. The table above does not set out Mrs M's income because it is not possible to do that. If, as will not occur, she did chose to invest the whole of the pension entitlement (ignoring the state pension) in an enhanced annuity she would have an annuity income of 8.98% x (£462,572.6-£128,700) = £29,981.76 p.a. until the state pension began. If, as is highly probably she either invested in all in 'draw down' pensions it would be a matter for her how much she drew each year but if she drew 10% p.a. this would be £33,387.20 p.a. (since (£462,572.6-£128,700 is £333,872). When her state pension began, if as I hope is the case she survives that long, she will have the additional income from that and can therefore draw more heavily from her pensions until then if she chooses. Overall, the result that I have achieved can produce roughly equal income benefits, depending on how Mrs M chooses to invest her pension transfers.

93. I therefore intend to order that Mr M should pay to Mrs M a lump sum of £25,000 and that there should be pension sharing orders in accordance with the above table, namely:

i) as to 60% of the RHM pension;

ii) as to 100% of the HJ and Aviva pensions.

94. I consider that the costs of effecting the transfers must be borne equally. Save for that I intend to dismiss all applications for financial relief and would wish the usual clause to be added precluding claims under The Inheritance (Provision for Family and Dependants) Act 1975. I do not anticipate any applications for costs and foresee an order providing for no order for costs.

95. I would ask counsel to draw up the order that reflects this judgment. I recognise that there are bound to be typographical errors in this judgment (I have typed it myself over the weekend). Further, this judgment is being released in draft and if there are major points where there are obvious arithmetical errors I will hear further submissions and be prepared to review the resultant conclusions. Unless I hear otherwise this judgment should be treated as final at 4 p.m. on Friday 30th January 2015.

96. Finally, I would wish to say that I regard Mr and Mrs M as thoroughly decent people on what I have seen of them. I would wish them both well in the future, whatever it might hold. I hope that Mrs M does not think that the circumstances of her health have been dealt with other than sensitively. I well understand what she meant when she said that she started these proceedings just seeking a divorce and that the 'whole thing has just snow-balled from there'. It is very unfortunate indeed that so much expense has been created in resolving a case by making modest adjustments to shared pension entitlements and a very modest lump sum.

HHJ Stephen Wildblood QC
25th January 2015.


Appendix – Existing capital

Asset

In H's name

In W's name

Comment

'The C' – H's home.

511,439

 

It has a mortgage of £26,911. Having paid off a large part of the mortgage in 2009 from pension draw down, he is treated as having made an overpayment of £65,000 that could be drawn down (but would increase his outgoings).

Flat. Value of H's 15% share [A3]

10,185

 

Owned equally by H and C. Mrs M accepts that this was bought for C.

Barclays 10657301

3,543

 

 

Barclays 80339970

2,018

 

 

Barclays 93067246

1,311

 

 

Barclays 33727400

23,383

 

 

Mercedes car

0

 

Value said to be £4,130. I have removed the values of cars from the schedule

Owed to L for Mini

-2,700

 

 

CGT due on share sales

-32,287

 

 

Legal fees

-28,000

 

 

40,000 HJ shares

0

 

Now sold

W's property

 

159,275

 

Halifax 00651477

 

1,551

 

Halifax 00030235

 

263

 

Halifax 10265961

 

5,000

 

Skoda car

 

0

£9,000 value

Council tax owed

 

0

Was £950.

Held by solicitors on account

 

43,062

 

Legal fees

 

-34,000

 

Total

488,892

175,151

Combined total: £664,043