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Home > Articles > 2016 archive

Finance and Divorce Update, February 2016

Edward Heaton, Principal Associate and Jane Booth, Associate, both of Mills & Reeve LLP analyse the news and case law relating to financial remedies and divorce during January 2016














Edward Heaton, Principal Associate and Jane Booth, Associate, both of Mills & Reeve LLP

As usual, this update is divided into two sections:
1. News in brief and
2. Case Law update

A. News in brief

Update on fault with Form E software
According to the Law Society Gazette, the outcome of more than 2,000 may have been voided by the Form E software fault.  Justice Minister Shailesh Vara MP has indicated, in a statement to Parliament, that the assets of more than 3,600 couples were miscalculated.  Those involved in the over 2,200 closed cases affected are to be written to by HMCTS and may need to apply to re-open or renegotiate settlements (although in practice the error may not have impacted upon the outcome in all of those cases).  No court fee will be charged for applications to set aside or vary orders.  Those involved in the 1,400 or so ongoing cases will have the issue flagged to them by HMCTS in order to avoid the error affecting their final orders.

A new version of the Form E is being uploaded, but with the automatic calculator function being disabled whilst the future of the form is considered as part of broader court reforms.  


President's consultation on amendment to Bundles PD27A
Munby P has issued a consultation on the amendments to Practice Direction 27A of the Family Procedure Rules 2010 (Family Proceedings: Court Bundles (Universal Practice to be applied in the High Court and Family Court)).

In Re L [2015] EWFC 15, Munby P urged practitioners to exercise restraint over the length of documents and now notes that it may be necessary to impose limits.  The President seeks practitioners' views on whether limits are desirable and, if so, whether the length of documents should be controlled by a page or a word count.

The proposed amendments can be found here.


The length of skeleton arguments restricted
Mostyn J has amended the Statement on the Efficient Conduct of Financial Remedy Hearings Allocated to a High Court Judge, paragraph 15 of the said statement restricting the length of skeleton arguments.

Paragraph 15 reads as follows:

"Skeleton arguments must:

a. be concise and not exceed:

i. for the first appointment, or any other interim hearing, 10 pages (including any attached schedules);

ii.  for the FDR, 15 pages (excluding agreed documents but including any other appended schedules);

iii.  for the final hearing, 20 pages (excluding agreed documents under para 13 above, but including any other appended schedules);

b. be printed on A4 paper in not less than 12 point font and 1.5 line spacing;

c. both define and confine the areas of controversy;

d.  be set out in numbered paragraphs;

e. be cross-referenced to any relevant documents in the bundle;

f.  be self-contained and not incorporate by reference material from previous skeleton arguments; and

g. not include extensive quotations from documents.

Where it is necessary to refer to an authority, a skeleton argument must first state the proposition of law the authority demonstrates; and then identify the parts of the authority that support the proposition, but without extensive quotation from it."


The second reading of the No Fault Divorce private members' Bill postponed until March
The second reading of the Bill, which would permit divorce on the basis of a joint petition, had been due to take place on 22 January 2016.  It will now take place on 11 March 2016.


B. Case law update

Cherwayko v Cherwayko (No 2) (Contempt, contents of application notice
[2015] EWCA 2436 (Fam) and Cherwayko v Cherwayko (No 3) (Contempt in financial remedy proceedings and costs)  [2015] EWCA 2482 (Fam) (2 separate but related judgments).

These judgments related to an application by the wife for the husband to be committed to prison for alleged breaches of an undertaking within the financial remedy order and orders made within enforcement proceedings and as part of an injunction.

The husband's case was that the wife's application notice had failed to comply with the FPR 2010 in that it had failed to specify the alleged breaches with sufficient particularity, that he had not breached the undertaking and that he was not in "wilful breach" of the orders (or had had no real choice to comply).

The wife's committal application alleged 4 breaches.  One was not pursued and the remaining three were referred to as follows:

1. "undertakings at paragraph 5(a) of the order of Mr Justice Mostyn dated 26 February 2014" (these were undertakings under which the husband was obliged to lodge with the wife's solicitors share certificates as security for certain obligations under the financial remedy order);

2. "paragraphs 3(a), 4 and 6 of the Order of Mr Justice Wood dated 6 May 2015" (under this order, the husband was to attend a hearing and produce at court specified documentary evidence); and

3. "paragraph 18 of the Order of Mr Justice Hayden dated 4 June 2015" (under this order, the husband was to provide details of his worldwide assets within 7 days of service of the order).

The draft order that accompanied the application provided further details of each of the breaches in turn:

1. "He dishonestly obtained replacement share certificates and sold the shares that were to be held in escrow by the applicant's solicitors as security for the outstanding lump sum payments."

2. "He did not attend the hearing on 22 June 2015 and has provided no documentary evidence of his current financial circumstances."

3. "He has provided no detail of his worldwide assets."

The affidavit of the wife's solicitor, in support of the wife's application, then particularised the breaches in more detail, consistently with the application notice and the draft order.

In her judgment, Parker J refers to Part 37 of the FPR 2010 as governing the wife's application and, specifically, to:

1. Rule 37.10 (3)(a):

"The committal notice must set out in full the grounds on which the committal application is made and must identify, separately and numerically, each alleged act of contempt including, if known, the date of each of the alleged acts and be supported by an affidavit."

2. Rule 13.2:

"The court may waive any procedural defect in the commencement of or conduct of a committal application if satisfied that no injustice has been caused to the respondent by the defect."

Reference is also made to the case of Harmsworth v Harmsworth [1988] 1 FLR 349, in which the central point had been, per Nicholls LJ, the extent to which the notice had had "sufficient particularity to enable the husband to know from the notice what were the alleged breaches so as to enable him to see the case being made against him".  The husband relied upon this, arguing that the rule was that full particulars needed to be given in the notice and the notice alone, and that defects in the notice could not be remedied by the affidavit in support.

Subsequent authorities are referred to in the judgment which relate to the waiver of orders made following technical irregularities, but no subsequent authority is identified in respect of what constitutes proper notice of what is alleged. 

Parker J expresses the view that Harmsworth remains good law – an alleged contemnor "must be informed of the allegations against him with particularity" – and points to the fact that FPR 2010 37.10(3)(a) "maintains the important distinction between the contents of the notice which sets out the charges, and the affidavit which provides the evidence in support".  However, she goes on to say that it is no longer the law that defects in a notice can only be waived in exceptional circumstances.  Instead, the test is one of "interests of justice".  A "carefully drafted, itemised affidavit or other document which sets out the relevant terms of the orders/undertaking, and particularises the breaches, can, depending on the circumstances and the context, justify waiver of a defect in the notice…". 

Parker J identifies some technical defects in the notice, but she is clear that, whilst perhaps advisable to recite at least the themes of orders or undertakings in respect of which the response is alleged to be in breach, it is not a requirement to do so.  The contents of orders must be known or presumed to be known by a respondent.

Parker J also points to the fact that the wife's case was clearly set out in the draft order and in the affidavit in support.  "The totality of the documents served on H would have left him, or indeed any reasonable person in his position, in no doubt as to the case he had to meet".  In the interests of justice, therefore, Parker J declines to dismiss the application to commit (although she also makes the point that her judgment should not be interpreted as implying that the FPR 2010 can be disregarded).

Turning to the issue of the undertaking, Parker J indicated that the undertaking had to be read as a whole and that the husband's actions had "deprived the certificates of their character as security".  Parker J found, beyond reasonable doubt, the husband to be in wilful breach of the undertaking and, indeed, of the two orders.

In her committal judgment, Parker J details a number of mitigating and aggravating factors, the detail of which fall outside the scope of this summary.  However, she found a fine or requisition of property to be "wholly unrealistic" since the husband was not in the jurisdiction, his assets could not be traced and enforcement would likely not be possible.   The fact that the husband might choose to remain outside the jurisdiction was, furthermore, not a reason for not imposing a custodial sentence.  Each of the breaches merited a term of imprisonment, particularly given that this was not the wife's first application for committal and the time for a suspended sentence had, therefore, passed.  Imprisonment was proportionate and a failure to imprison would not be.  The total term for the breaches of the orders was nine months on each of the orders, to be served immediately but concurrently.  The breach of the undertaking was, however, more serious and warranted a 12 month term, to be served consecutively.


Noshin Ismail v Tariq Ismail Choudhry [2016] EWCA Civ 17
This involved an application for permission to appeal (and, if successful, the appeal itself) in respect of an order that had been made by Williams J declaring that a marriage that had taken place between the parties in Pakistan on 19 December 1993 was valid and recognised in this jurisdiction.

The question for the Court to determine was whether, with reference to those court records available to Williams J or with reference to orders that had since become available, the declaration could be shown to have been wrong.

By way of background, the wife had been married three times.  The first marriage had been dissolved under domestic law in 1989 (albeit only in 2015 under Sharia law).  The main issue in the case, however, was when the second marriage had come to an end.  The Leicester County Court had made an order on 3 November 1993 certifying that decree absolute had been made on 15 September 1993.  "Astonishingly", to use the description of Park J, however, some 20 years later, on 27 January 2014, the Leicester District Registry issued an amended order which included a revised date for decree absolute of 26 October 1993.  This document had not been before Williams J in July 2013 and was allowed as fresh evidence by the Court of Appeal.

The importance of the revised date was that it meant that the parties' marriage, in December 1993, had taken place within 3 months of the Decree Absolute.  Under Sharia law, however, for a marriage to be valid where the woman has been married previously, a period of 3 months must have passed since the degree of divorce or nullity in relation to the previous marriage before the marriage takes place.  This is called "the Iddah".  Had the first Decree Absolute been correct, the 3 months would have elapsed and the marriage would, on the face of it, have been valid.  The revised, later date, however, meant that the marriage had taken place within the 3 month period.  Accordingly, it followed that the marriage was not valid under Sharia law and was not, therefore, capable of being recognised in this jurisdiction.

Incidentally, even if the first Decree Absolute has been right, it would not have been valid since it was within the statutory 6 week period required between Decree Nisi and Decree Absolute and, in the absence of any application for the period to be abridged, the marriage would not have been brought to an end and the marriage between the parties in December 1993 would have been bigamous.

Accordingly, the appeal was allowed.  Rather than substituting the declaration made by Williams J, however, the matter was remitted for re-hearing so that written single joint expert evidence on the application of the Iddah and other issues could be adduced.  Since the Decree Absolute had been one of nullity (rather than divorce), due to the wife's second husband having been married at the time that he and the wife had married, doubt was raised as to the extent to which the Iddah actually applied in this case or whether, in fact, the wife had always been free to marry to the husband as her previous marriage had been void.


Raani v Charazi [2015] EWFC B202
This is a case with an unusual factual history. The parties had married in a civil ceremony in 2002 (and, subsequently, in January 2003, also in a religious (Jewish) ceremony). 

The husband had, however, subsequently submitted a petition based on 5 years separation in November 2007, claiming that he did not know where the wife lived, that he had no means of contacting her (believing that she had moved to South America) and that they had no children together. 

The husband had been granted a Decree Absolute and had later gone on to re-marry, in a religious ceremony. 

The matter had, however, subsequently come before the court as the husband had steadfastly resisted attempts by the wife to obtain a Get in order to enable her to re-marry, and the wife had discover that the husband had obtained a civil divorce, on her case, without her knowledge and based on untrue facts.  The wife maintained that there had not been 5 years separation, that the husband had known where she had been since they had separated (and how to get in contact with her) and that this had not been in South America.  The husband had, furthermore, been aware that they had a son, who the husband had named at a circumcision ceremony. 

Whilst the details fall outside the scope of this summary, the Judge found the wife to be a "credible and reliable witness" and the husband's account to be "rambling and confused", his attempts to justify the errors in his petition as mistakes or misunderstandings "unconvincing".

The Judge found that the husband's petition and both an affidavit in support of an application to dispense with service and an affidavit in support of his petition had been "deliberately framed in a way calculated to deceive the court, and in swearing the affidavits he committed perjury. He perverted the course of justice and succeeded in obtaining a decree absolute by fraud. As in the cases of Moynihan [Moynihan v Moynihan (No 2) [1997 1 FLR 59] and Rapisarda [Rapisarda v Colladon AL11D00099], this is a gross case"

The Judge ordered that the Decree Nisi and the Decree Absolute be set aside, and that the divorce petition and the amended divorce petition be dismissed. 

The Judge further gave the Queen's Proctor and the wife leave to disclose the documents within the proceedings and a transcript of his judgment to the Metropolitan Police and to the Crown Prosecution Service.


E v E [2015] EWHC 3742 (Fam)
This involved an analysis of Article 19 of Brussels IIA (Council Regulation (EC) No. 2201/2003).  The husband sought an order declining jurisdiction and dismissing the wife's English petition.  The wife sought an order declining jurisdiction but not dismissing the petition, leaving the door open for it to be revived in the event of the husband's French proceedings being dismissed.

The husband had commenced divorce proceedings in France in 2011, and a non-conciliation order had subsequently been made authorising the parties to apply for divorce by filing an assignation within 30 months, failing which "all the hearing authorisations become void, including the authorisation for petitioning for divorce".

The husband filed an assignation shortly before the expiry of the 30 month period, and the wife subsequently filed for divorce in England (she maintained that, at the time, she had been unaware that the husband had filed an assignation).

The "jurisdiction issue" in relation to the wife's English petition was listed for a hearing in accordance with Rule 7.27(2) of the FPR 2010, which provides as follows:

"Where at any time after the making of an application under this Part it appears to the court in matrimonial proceedings that, under Articles 16 to 19 of the Council Regulation, the court does not have jurisdiction to hear the application and is or may be required to stay the proceedings, the court will:

1. stay the proceedings; and

2. fix a date for a hearing to determine the questions of jurisdiction and whether there should be a further stay or other order."

Article 19 of Brussels IIA provides as follows:

"1. Where proceedings relating to divorce, legal separation or marriage annulment between the same parties are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. 

3.  Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court.
In that case, the party who brought the relevant action before the court second seised may bring that action before the court first seised."

The wife's case revolved around the impact of the recently reported case of A v B C-489/14, 6 October 2015 (which featured in the January Finance and Divorce Update) and, specifically, around the interpretation of the word "decline".  In A v B, in broad terms, the husband had failed to file an assignation before the end of the 30 month period and it was held that the English Court had jurisdiction, despite the fact that the wife's English petition had been filed before the end of that period and before, therefore, the time that the husband's French proceedings had lapsed.  This was because the English Court had been properly seised when the wife has filed her Petition and, once the French proceedings had lapsed, the English Court had become the first (and, at that time, only) court seised. 

The wife's case, in the case in hand, was that the judgment in A v B fundamentally impacted upon the application of Article 19 and the meaning of "decline".  Moylan J disagreed.  He indicated that the issue of when a court was seised was not affected by Article 19 or by the existence of other proceedings.  If proceedings in a court first seised expired, after another court had been seised, the criteria for lis pendens were no longer fulfilled as there were no longer two extant sets of proceedings.  Moylan J quoted from paragraph 41 of the judgment in A v B, which is worth repeating here:

"It must be pointed out that the fact that there were other proceedings before a French court when the United Kingdom was first seised, on 13 June 2014, does not in any way preclude the United Kingdom court from having been properly seised under the rules of Article 16…" 

Moylan J saw no relevance of the decision in A v B for the purposes of the present case.  Whilst both courts had been correctly seised, the husband had filed an assignation within the 30 month period and the proceedings in France remained first in time.  "In my view, the court should not encourage, and should actively discourage, the tactical filing of a second set of proceedings… when the jurisdiction of the court of another Member State has been established."  He went on to say that, in his judgement, "the appropriate method of declining jurisdiction is to dismiss the petition, not to stay it or somehow otherwise to leave it in place…".  Accordingly, he dismissed the wife's English petition. 

There was a second issue before the Court which, whilst dealt with relatively briefly by Moylan J, is also worthy of mention.  The wife raised an issue over the extent to which service had been effected validly on her through the Foreign Process Section.  The Judge referred to a number of authorities in his judgment, most notably perhaps to the words of Lewison J (as he then was) in Abela v Baadarani [2013] UKSC 44: 

"The purpose of service of proceedings, quite obviously, is to bring proceedings to the notice of a defendant.  It is not about playing technical games." 

Moylan J indicated that there was no doubt that the wife was fully aware of the husband's assignation and that any debate was in any event "rendered sterile" by Rule 6.15 of the CPR and Rules 6.19 and 6.35 of the FPR and the Court's power, "where it appears… that there is good reason, to direct that steps already taken to bring a document to the attention of a respondent by an alternative method or at an alternative place is good service". 


(1) Rebecca Hannah Steinfeld (2) Charles Robin Keidan v The Secretary of State of Education [2016] EWHC 128 (Admin)
This case related to the fact that, whilst same sex couples may now marry, opposite sex couples are not able to enter into a civil partnership.

The claimants in the case were a young couple in what was described as a "committed long-term relationship".  They wished to formalise their relationship but had "deep-rooted and genuine ideological objections to the institutions of marriage, based upon what they consider to be a historically patriarchal nature".  Rather than marry, therefore, they wished to enter into a civil partnership. 

Under s.1 of the Civil Partnership Act 2004, a civil partnership is described as "a relationship between two people of the same sex when they register as civil partners of each other".  s.(1)(a) then underlines the fact that two people are not eligible to register as civil partners if they are not of the same sex.

Whilst the claimants did not suggest that there was any substantial difference between civil marriage and civil partnership, in terms of legal rights and responsibilities, they argued that, if they were not able to enter into a civil partnership, they would be forced to enter into marriage against their conscience in order to obtain the protections and privileges that they sought and formal recognition of their relationship.  It was, accordingly, their case that, since the enactment of the Marriage (Same Sex Couples) Act 2013, under which it had become possible for same sex couples to marry, the provisions of the Civil Partnership Act 2004 had become incompatible with Article 14 of the European Convention on Human Rights taken in conjunction with Article 8. 

Article 14 of the Convention provides as follows:

"Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

Having considered numerous authorities, Mrs Justice Andrews, held that the enactment of the Marriage (Same Sex Couples) Act 2013 had not rendered the Civil Partnership Act 2004 (specifically the restrictions on opposite sex couples entering into a civil partnership) unlawful.  The effect of the enactment had merely been to create a second route that same sex couples could go down in order to secure legal recognition of their relationship.  Whilst couples of the opposite sex only had one such route, the difference in treatment did not "infringe a personal interest close to the core of the right to family life, still less the right to private life protected by Art 8".

The Judge went on to say that, if this was wrong and the difference in treatment did in fact fall within the ambit of Article 8, read together with Article 14, then the Government's decision to wait until it was better able to evaluate the impact of the 2013 Act on civil partnerships before taking any legislative steps was well within the "ambit of discretion afforded to it with regards to the regulation and social matters" against a background where there was no consensus of the appropriate course to take.  The Judge pointed to the fact that opposite sex couples were not disadvantaged by any delay and their decision to wait and see served a legitimate aim in avoiding unnecessary disruption and wastage of time and money.

The claim for judicial review, therefore, failed.


Azizi v Aghaty [2016] EWHC 110 (FAM)
This case related to a couple who were Iranian and who were both litigants in person.  Their matter had been heard at first instance and the wife had appealed. 

Central to the case was the wife's previous marriage in Denmark and the extent to which that marriage had been dissolved prior to the parties marrying.  The deputy district judge ("the judge"), at first instance, had clearly come to the view that the wife was a bigamist, who had committed bigamy and had lied until forced to admit it, and this view had greatly influenced the outcome of the case, which had seen the judge order that the entirety of the equity in the former matrimonial home be transferred to the husband, along with 75% of the value of a flat in Iran, the existence of which the wife denied.

The outcome was particularly "striking" as the marriage was of some years' duration, the only real asset that had been identified was the former matrimonial home, in which neither parties were actually living, and the transfer to the husband was not, therefore, on the basis of needs. 

At the final hearing, the wife, who had previously been assisted in court, did not have the assistance of an interpreter, and Holman J commented that the verbatim transcript showed that "many of the recorded answers of the wife [were] somewhat 'garbled' and it [was] not at all clear from the transcript that she fully understood every line of questioning and question, nor that her answers [were] entirely intelligible".

Whilst Holman J felt that the absence of an interpreter had not rendered the judgment fatally unfair (the judge had been satisfied that the wife's England was sufficiently good), the wife's linguistic ability and the lack of an interpreter in court was part of the "general background" to the appeal.

Holman J found that, whilst pursuing a certain line of reasoning by the judge may have seemed "crystal clear" to an experienced matrimonial lawyer, it may have been "thoroughly confusing to the lay parties".  The line of questioning to the "unrepresented wife, whose first language [was] not English…was, with the best will in the world, unfair and in fact based on a fallacy".   Holman J found that the judge's decision on certain aspects of the case was "not reliable and…, in certain respects, the hearing was objectively unfair to the wife".  The bigamy, which required intent, had not been proven, nor could it be seen to have been established that the wife had admitted that she had lied.

Holman J allowed the appeal and remitted the entire matter to be re-determined by a full-time district judge.     


MH v MH [2015] IEHC 771
This was an Irish case, but is relevant as it concerned a jurisdiction race between England and Ireland and has wider relevance as to the meaning of "lodge" within the context of Article 16 of Brussels II Revised.

In short, the husband's solicitor had attended the court office in Dublin at 2.30pm on 7 September 2015 and lodged what was described as an "initiating document, a special summons, in respect of judicial separation".  The summons was issued at the time of lodging.

On the same day, the Bury St Edmunds Divorce Centre received the wife's English divorce petition through the DX and, whilst the Irish judge found that it was likely (on a balance of probability) that the envelope containing the petition would have been opened and petition stamped before 10.30am, the petition was not issued until 4 days later.

The Irish High Court found that the wife's petition had been lodged before the husband's judicial separation documentation and was, therefore, first in time.  This was on the basis that the word "lodged", within the context of Article 16, meant delivery to court and not issue.  Accordingly, the Irish proceedings were stayed.

This may well come as some surprise to English practitioners, but the husband has appealed and the Court of Appeal is due to hear the matter later this year.


MS v PS [2016] EWHC 88 (Fam)
This case concerned an application to enforce a German court order in England under the provisions of the EU Maintenance Regulation 2009.  The applicant wife ("the wife") was a maintenance creditor living in Germany, the respondent husband ("the husband") was a maintenance debtor living in England.

Roberts J was asked to determine the preliminary issue of whether an application for the enforcement of this type of maintenance order could be made directly to the Family Court (as the wife contended) or whether, in all cases, the application needed to first be lodged with the Central Authority (here the Lord Chancellor) for onward transmission to the Family Court through the Reciprocal Enforcement of Maintenance Orders Unit ("REMO").

The issue is that there appears to be a conflict between the provisions of the EU Maintenance Regulation 2009 ("the Regulation") and our domestic legislation, the Civil Jurisdictions and Judgments (Maintenance) Regulations (2011), which came in to force to implement the Regulation.

Roberts J directed that the matter be referred to the European Court of Justice to determine the following two questions:

"(i) In circumstances where a maintenance creditor wishes to enforce in one Member State an order which has been obtained in another Member State, does Chapter IV of EU Regulation 4/2009 (the Maintenance Regulation) confer upon her a right to make an application for enforcement directly to the competent authority of the requested state?

(ii) If the answer to (i) is in the affirmative, should Chapter IV of the Maintenance Regulations be interpreted so as to mean that each member state is obliged to provide a procedure or mechanism such as will enable the right to be recognised?"

Roberts J observed that "it is now over a year since the mother secured her order in this case.  At that stage, there were arrears up to the beginning of this year of a sum in excess of €6,000.  Those arrears are likely to be significantly greater now.  The arrears are directly referable to the financial support of two young children.  In my view, there are ample grounds in this case to request the European Court to consider an expedited hearing under its powers and pursuant to the procedure set out in r 105 of the Rules of Procedure of the Court of Justice of the European Union.  The emotional toll of these ongoing proceedings will be taking their toll not only on the parties but on the children whose interests will inevitably have been harmed by their parents' ongoing disputes."


WS v WS [2015] EWHC 3941 (Fam)
The wife was aged 56, the husband aged 61.  They began cohabiting in 1983 and married in May 1985.  They had two children both of whom were now adults.  The parties separated in 2012. 

The evidence was that, at least until the breakdown of the marriage, the parties had made a full and substantial contribution to the marriage and no distinction could be made between them.  The pot of assets compromised properties, business interests, cash, investments and pensions.  This totalled in excess of £13million.  All the assets had been acquired during the marriage.   Although the parties' financial positions were not wholly similar, neither could be categorised as the weaker party in economic terms or was likely to be significantly weaker following the equal division of assets.

There had, in the past, been some agreement that the former family home and companies to be sold with the proceeds of sale being divided equally (although that was now disputed).  The substantial question for determination by the court was the calculation of a lump sum payable by the wife to the husband to offset the difference in their pension provision (the parties agreed that a pension sharing order was not appropriate because of the tax consequences for the husband). 

Both parties put forward arguments about the most suitable methodology to calculate the offsetting lump sum.  The differences between the parties' pension arrangements were that the husband had available funds equivalent to cash (which he could extract without difficulty), whereas the wife had a guaranteed but non-transferable income stream.

After detailed consideration, the court decided to proceed on a Duxbury calculation in preference to an annuity based calculation.  The lump sum was calculated at £425,000.  A final order was approved which saw each party walk away with over £6million each plus pensions.