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A v A [2018] EWHC 2194 (Fam)

Hearing to determine the appropriate replacement undertakings following the Husband’s successful appeal against the Wife’s release from undertakings

At the conclusion of an appeal hearing before Mr Justice Cohen in February 2018, Cohen J held that it was right for the wife ('W') to be released from her undertakings to repay the husband ('H') in respect of mortgage interest repayments and a loan, which had formed part of a Consent Order made in 2011 ('the Consent Order'). However, he decided that such an outcome would only be fair if replacement undertakings were put into place.

(For the full summary of the appeal judgment, click here).

Cohen J considered that he did not have adequate information about W's finances to proceed immediately to a determination of the appropriate replacement undertakings. The parties agreed that the matter should be retained by him, rather than be remitted. It returned before Cohen J in June 2018.

W's Financial Position

Cohen J summarised W's capital position as of June 2018 in a Schedule, which is attached to his Judgment.

In summary, W held:

a) £2.8m in her home ('BL'), once the mortgage is redeemed;
b) £2.314m in capital assets outside BL;
c) Her share in the Spanish Property and her entitlement to £700,000 on its sale in accordance with the Consent Order. On the basis of a sale price of £1.75m (which was not certain), W's entitlement in the Spanish Property had a value of £1.454m; and
d) Her liability to H under the undertakings in the sum of £1.625m (and increasing).
[5]- [9] 

This meant that her capital position, net of her liability to H (as it was in June 2018), was in the sum of £4.95m, of which £2.8m was held in BL, with the balance of c.£2.14m held in cash, investments and pensions. 

W did not have an income independent of H [10].

Parties' Agreement as to Timing

During the hearing, the parties agreed that, under any replacement undertaking, W would not be obliged to meet her liability to H until the sale of the Spanish Property, rather than on the sale of the Former Matrimonial Home as envisaged in the Consent Order [12].

Quantum of W's liability to H

The issue which remained to be determined by Cohen J was: what was the appropriate quantum of W's liability under the replacement undertaking. The Judge at first instance had already determined that W should not be released from her obligation to pay £260,000 of the total liability of £1.625m. Thus, it was for Cohen J to decide the extent to which, if at all, W should be excused from the obligation to repay H £1.365m [13].

H's Position [14] – [17]

H argued that, under the replacement undertaking, W should be required repay the full £1.365m, but with the variation of timing referred to above. He justified this by reference to:

a) Needs: W could meet her income needs with the c.£2.14m that she held outside of BL. This would provide her with an annual income of c.£110,000pa. She also has the ability to release more capital by downsizing her home.

b) The parties' agreement:  In circumstances where W is not left in a position of "real need", it would be unfair to depart from the terms of the agreement.

W's Position [18] – [24]

W sought to reduce her liability to H under the replacement undertaking as much as possible. In so doing, she raised the following arguments:

a) Anticipated effect of agreement: In considering the parties' agreement, the Court should focus on what the parties had anticipated its effect would be. W emphasized that, had the properties sold at the level anticipated by the parties at the time of their agreement, W would have received c.£5.5m on top of the value of BL; under H's proposal should would receive a little over £2.1m.

b) Uncertainty: Under H's proposal, if the Spanish Property sold for less than 1.75m, the amount that W would have to pay from the capital currently in her name (above the proceeds of sale of the Spanish Property due to her) would increase. It would be unfair for W to bear this uncertainty.
c) Amortisation: It would be unfair for W to amortise all of her assets save for her home. In particular, it would be unfair for W to amortise her capital outside her pension funds. 
H's Revised Position [23]

To meet W's argument about uncertainty, at the conclusion of the hearing, H proposed that W would be released from her liability to him on the transfer by her to him of the Spanish Property. On the basis of the current value (although this was considered to be optimistic) W would transfer £1.45m to H in full and final satisfaction of her liability to him,
thereby saving her £170,000. She would be left with capital outside BL in the sum of £2.31m. W rejected this offer.


Cohen J decided that W should be required under the replacement undertaking to pay to H £1.066m on the sale of the Spanish Property, which represents a reduction of £559,000 from her liability under the original undertaking.

In coming to this determination, the Judge considered the parties' arguments in respect of the parties' agreement and amortisation:

a) The parties' agreement:
i. He confirmed that the same principles apply to a consent order as those which apply to ante-nuptial agreements [32] – [34].
ii. He rejected H's submission that there had been no unanticipated change following the Consent Order [35]. He considered that the significant reduction in the monies accruing to W, due to the difficulties that the parties faced in selling their properties, was "beyond their anticipation" [36].
iii. He acknowledged that, to the extent that W's liability to H is reduced, H suffers financially, but pointed out that H had not argued that this would have any significant impact on him [37].
iv. He considered that the length of the parties' marriage and the marital standard of living were relevant factors, but had to be set against the fact of the parties' agreement [38].
v. He rejected H's emphasis on "real needs" and concluded that he would consider W's needs, although they would be rigorously assessed to reflect the fact of the parties' agreement [40].

b) Amortisation:
i. He accepted that, in spite of H's significant wealth, because this was a case which involved an agreement between the parties, it was proper for him to consider the reasonable use by W of her capital resources to produce an income [41] – [42].
ii. However, he concluded that it would not be fair to expect W to amortise all of her award because he considered that she needed to retain some capital for security [43].


Cohen J based his determination of the appropriate quantum of W's liability under the replacement undertaking on his assessment of W's needs. W needed:

a) BL free of mortgage (this was agreed between the parties);
b) Some free capital; and
c) Her income fund.

To ensure that W retained some free capital, Cohen J held that it was appropriate for 100% of W's pension assets, but only 50% of her other capital assets (outside BL), to be amortised [46]. This left W with £562,000 of free capital.

Cohen J calculated that by utilising 100% of her pension assets and 50% of her other capital assets (outside BL) as a Duxbury Fund, plus income derived from her capital and her state pension, W nevertheless suffered an income shortfall, which would be repaired by an income fund of £389,000 [45] - [46]. That £389,000 represents the first part of the reduction of W's liability to H.

The balance of the reduction in the sum of £170,000 reflected Cohen J's view that it would be highly unattractive for W to have to pay a balancing lump sum to H to meet the shortfall between what she was due to receive from the sale of the Spanish Property, and her liability to H [48]-[49]. The Judge was explicit that W was discharged from any further liability to H [50].


Cohen J concluded that, "The effect of what I have done is to share the pain between the parties, albeit relieving the wife substantially less than did Judge Hughes" [53]. This was partially due to W's financial position being healthier than he had anticipated, and partly because by the time of the hearing in June 2018, the Former Matrimonial Home had sold for more than anticipated.

Cohen J indicated that the fact that H made the "crucial" concession as to the timing of payment by W during the hearing, would be a factor which he would take into account when determining any application for costs by H [54].

Summary by Georgina Howitt, barrister, 1 Hare Court

Neutral Citation Number: [2018] EWHC 2194 (Fam)
Case No: FD10D00273 / 2017/0162


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 17/08/2018




A  Applicant
- and –

Mr J Turner QC and Mr M Sirikanda (instructed by Withers LLP) for the Applicant Husband
Mr P Chamberlayne QC
and Ms S Hillas (instructed by Irwin Mitchell) for the Respondent Wife

Hearing date: 21st June 2018
- - - - - - - - - - - - - - - - - - - - -

Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

This judgment was delivered in private.   The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved.   All persons, including representatives of the media, must ensure that this condition is strictly complied with.   Failure to do so will be a contempt of court.

 1. On 28th February 2018 I handed down a judgment allowing an appeal by the husband against an order of Her Honour Judge Hughes QC dated 8th September 2017.  I will not repeat the terms of that judgment but its contents are to be imported into this judgment.

2. As I made clear in my earlier judgment I was not in a position to establish the terms of a replacement order as I had inadequate information about the wife's finances.  The parties agreed that rather than remit the case I should retain it and an order was made requiring the wife by 7th March 2018 to serve a statement containing a breakdown of all her current capital assets, her liabilities, her income from all sources and her outgoings.

3. I had anticipated this hearing coming back before me in March 2018.  It is a matter of regret that that has not happened, largely as I understand it due to counsel's commitments.  But, there has been one fortunate development, namely that at the date of the hearing on 21 June the former matrimonial home known as RG was under offer with an anticipation that exchange would take place very speedily with completion by 1st August 2018.  I circulated the draft judgment about one week after the hearing but was then asked by both sides not to hand it down until there had been completion which was delayed.

4. My draft judgment assumed that the wife would receive between £100,000 - £200,000 in respect of 22 acres land owned by the parties adjacent to the property and from the sale of various chattels.  In fact, she has received some £125,000 as they were sold to the RG purchaser.  There may be an overage payment if the purchaser obtains planning permission for the land. Neither party has suggested that this receipt and/or potential benefit should alter the outcome that I indicated in the draft judgment and I do not propose to alter the judgment or schedule to reflect its receipt.  I have little doubt that some of the money will go on the increased legal fees that she will have incurred and the surplus is de minimis.

5. The wife's means:
I set these out as at June 2018 in tabular form in the agreed schedule annexed to this judgment and I summarise them as follows:

i) Her share of RG inclusive of the lump sum due to her from the proceeds:  
£ 3,469,482
£ 2,494,700   Less mortgage on BL
 £ 974,782
Investments:  £ 101,630
Cash: £ 127,266
FURBS received:  £145,947
Balance of lump sum that can be taken by way of pension:     £315,000 
£ 729,126    Balance of pension fund after tax
£ 2,393,000 TOTAL

She has an outstanding costs liability of £79k reducing her assets outside of BL to £2.314m.

6. In addition, she has her own home "BL" which after repayment of the mortgage has a value of £2.8m.

7. The good news is that RG has sold for £6.5m, £500k more than was anticipated in the February hearing.

8. There have been a number of developments in her financial position of which I was not aware when I gave judgment in February 2018; these include the following:

i) As mentioned, RG has sold for more than anticipated;

ii) W has assets in terms of investments, cash and FURBS, of which I was previously unaware;

iii) There are 22 acres of land around RG and some chattels which have been sold as stated;

iv) On the downside, the Spanish villa has not sold and the hoped for price of £1.75m may be optimistic.

9. The indebtedness of the wife to the husband continues to increase.  As of the date of the hearing it stood at £1.591m and by 1st August will have been in the region of £1.625m.

10. The wife has no income other than what she received from the husband.

11. The wife has a liability, included in the figure of £1.625m, arising when the Spanish villa is sold of the excess of the sums that she owes the husband over and above what she will receive out of the sale proceeds, namely £1.454m.  It is calculated that if the villa were to sell for £1.75m, which is optimistic, the sum that she would owe to the husband would be about £170k on the basis that her liability is not paid from the sale proceeds of RG (see below).

12. The husband proposed during the hearing that there should be a significant modification of the order made in 2011, namely that the sums that the wife owed the husband under the order should not become payable until the sale of the second property rather than the sale of the first.  That proposal is sensible and realistic.  It means that the wife will have her money in before she has to pay out.  It has the added benefit that upon the sale of RG the monthly payments made by the husband in respect of the loan of £12k per month and the mortgage repayments will come to an end.  It was agreed that the wife will become self-sufficient from the date that the sale went through.

13. Thus, the remaining issue for me to deal with is the extent, if at all, to which I excuse the wife from the liability to pay back to the husband the approximate sum of £1.365m which will be the aggregate of the loan and mortgage payments that he has paid to or for her, she having been not excused by the order of HHJ Hughes repayment of the sum of £260k advanced by the husband for the deposit for the purchase of BL.

14. The position of the husband:
The husband's case is that the wife does not need to be and should not be excused from any of the repayments.  He says that if she was to use all the capital available to her as a Duxbury fund, being about £2.14m (£2.314m minus the shortfall of about 170k she would still owe the husband after receiving her share of the Spanish property and repaying her debt to him in full) she would be able to receive an income fund of something approaching £110k pa.  She would, in addition have a mortgage free house from which she could trade down in the future if she so wanted.

15. He says that these figures show that the wife would have no real need of being excused any repayment and that she should remain subject to her undertakings but with the variation of timing referred to at paragraph 12 above.

16. He says through Mr Turner QC that I must approach this case bearing in the forefront of my mind that the parties had come to an agreed resolution enshrined in a court order.  Applying the principles of Granatino v Radmacher [2011] 1 AC 534, I must bear firmly in mind that the fact of the parties' agreement is capable of altering what is fair (see paragraph 75).  The test I should apply is whether or not the parties' agreement leaves the wife in a position of "real need"; absent that, he says that there is no ground for the court to interfere. 

17. He says that in the circumstances of this case it is right that the whole of the wife's non-housing resources should be amortised as she is bound to make the best use of the resources available to her.  Any other approach would not be paying due regard to the principle of minimal intervention.

18. The wife's position:
Mr Chamberlayne QC on her behalf says that the principles enunciated in Granatino v Radmacher do not apply in this case.  Far from it being a case where a party is seeking to get more than what had been agreed, this wife is seeking a solution that would provide her with something that is closer to what she agreed than the present arrangements which will leave her far short of what she had anticipated.

19. It is my job to reach a fair outcome and whilst I should have regard to the agreement it should be in the context of what the parties had anticipated its effects to be.

20. This is, she says, exemplified by the fact that if the wife had received the mid-point figure of £3.5m referred to at paragraph 20 of my previous judgment and £2m worth of pension assets she would receive some £5.5m without liability.  Under the current proposals she will end up with only a little over £2.1m.

21. The risk of the current arrangements falls on her in a way that is unfair.  In particular, if the Spanish villa achieves less than £1.75m the amount that she will have to pay the husband will increase beyond the current estimated sum of £170k.

22. It is not reasonable that she should be expected to amortise her assets and, in particular, it is not reasonable that she should amortise anything beyond her pension assets, particularly in circumstances when the husband is so financially secure both by way of capital and income.

23. During the hearing and in order to meet the argument about the uncertainty which the wife faced about the liability to which she will be exposed when the Spanish property sells, the husband, at my instigation, reconsidered his position.  At the end of the hearing he put forward a revised proposal, namely that the wife transfer the Spanish property to him and forego the lump sum that she would get out of the property (in effect transferring to him £1.45m depending on actual value) and in exchange he would discharge the wife from having to repay any sum to him (thus saving her £170k).  But, this offer was made in full and final settlement of her claims so that she would be left, over and above her unencumbered home, with total assets of £2.31m plus whatever she got from the land sales and no more. The wife refused this offer.

24. The wife's budget:
In her statement the wife claims a budgetary need of £147k pa.  This is broken down under the usual headings.  It excludes legal costs but is inclusive of the cost of having living with her two of the family's children and her elderly mother.

25. The sum also includes payments made in respect of her daughter's wedding and honeymoon and excluding them, she says that her monthly income needs are in the region of £11.7k or £140k pa.

26. She compares this sum with the figure of £12k pm, which the husband is paying to her as what has been described as a maintenance loan.  She says that this shows that her budgetary claim is reasonable.

27. The husband does not accept a budgetary need of anything like this figure.  He says that the amount of his monthly payment is immaterial, as that was agreed on the basis that she was going to repay him in full, so that the amount of the figure was irrelevant so far as he was concerned.  He also said, and plainly rightly, that it is not likely that she will have three other members of the family living with her on a long-term basis.

28. The husband's approach to the wife's budget is as follows: On his figures she will have available to her as an income fund a little over £2.3m. which if wholly amortised will produce on a Duxbury basis about £115k.  He says that is as much as she needs on any proper calculation, but if she chooses to spend more, then that is up to her and can be financed either by recourse to the sum received following the sale of the land/chattels or by trading down her accommodation.  It will be a matter for her.

29. Both parties agree that if I consider that the figure of £140k pa is an excessive budget I should use my own experience and simply insert what I consider to be the appropriate figure.

30. To explain the mathematics of what follows, I state now that I have arrived at the figure of £120k pa.  I have reduced the figure from £140k, in particular because I do not regard it as a long-term need for the wife to be providing a home for two grown up children and her mother. 

31. That said, I consider it probable that in the very long term her expenditure will reduce rather than increase.

32. The legal principle:
I have to achieve fairness set against the background of the parties' agreement. As Lord Phillips PSC said in Granatino at paragraph 75

The problem arises where the agreement makes provisions that conflict with what the court would otherwise consider to be the requirements of fairness. The fact of the agreement is capable of altering what is fair.  It is an important factor to be weighed in the balance.

33. At paragraph 76 Lord Phillips pointed out that the outcome of the difficult question of when it would not be fair to hold parties to their agreement is necessarily dependent on the facts of the particular case.  At paragraph 80 under the heading "Future Circumstances" he said this:

Where the ante-nuptial agreement attempts to address the contingencies, unknown and often unforeseen of the couple's future relationship there is more scope for what happens to them over the years to make it unfair to hold them to their agreement.  The circumstances of the parties often change over time in ways or to an extent which either cannot be, or simply was not envisaged.

34. Then at paragraph 81 he says this:

The parties are unlikely to have intended that their ante-nuptial agreement should result, in the event of the marriage breaking up, in one partner being left in a predicament of real need, while the other enjoys a sufficiency or more, and such result is likely to render it unfair to hold the parties to their agreement.

But at paragraph 82 he went on:

Where however, these considerations do not apply and each party is in a position to meet his or her needs, fairness may well not require a departure from their agreement…

It goes without saying that the same principles apply to a consent order made at the end of the marriage as to an ante-nuptial agreement.

35. Mr Turner QC for the husband argues that there has been no unanticipated change.  He said that the parties entered into an agreement knowing that the values for the properties might not be achieved.  They knew, he says, as all homeowners do, that property could be difficult to sell.  He says there was no agreement as to what sum the wife should receive. She could if she wanted, have insisted on a minimum figure.

36. I consider that this argument does not meet the reality of the situation.  As I set out in my first judgment, it is clear that on the figures that can be seen in various documents, on a mid-point figure the wife expected to end up with capital of around £3.5m plus a pension fund of £2m in addition to her unencumbered house.  True that there might have to be a small repayment to the husband of monies advanced whilst the properties were being sold, but that was not anticipated to be significant.  It is clear to me that what has happened was beyond their anticipation.

37. What the wife receives from the property sales will determine her financial future.  I do not overlook that the husband is owed what on 1 August 2018 was some £1.625m.  To the extent that he is not repaid it, he suffers financially, but it is no part of his case that he will feel it in any significant way.  He has become extremely successful, both in terms of income and capital.  The precise amount of his wealth is irrelevant.

38. I consider that the length of the marriage and the standard of living in particular are two factors that I should bear in mind, but I am very conscious that I am not conducting a first instance financial remedies application. I am looking at the extent to which it is proper for me to release the wife from undertakings into which she entered.

39. Mr Turner seeks to persuade me that the test that I should apply is the test of "real need", a phrase which appears to have come from the judgment of Wilson LJ, as he then was, in the Court of Appeal in Granatino at paragraph 144 and which is picked up by Lord Phillips at paragraph 81.

40. I do not find that "real needs" is a helpful alternative test to that of "needs".  Needs as a concept is elastic enough to encompass a situation where they have to be judged in the circumstances that pertain to the particular case.  In this case they are judged against a pre-existing agreement and thus will be more rigorously assessed than they will be absent that agreement.  In addition, the meeting of those needs may lead to a formula which is different to that which would apply in a case where there was not such an agreement.

41. Amortisation:
Much of the discussion before me has focussed on the extent to which it is proper that the wife's resources outside her home should be amortised or treated as income producing.  This was the subject of discussion in Waggott [2018] EWCA (Civ) 727. I refer particularly to paragraph 134 where it is made clear that each case will be fact specific and that the court must have regard to all the relevant circumstances.

42. Against the background of the wealth of the husband in this case I might have been very reluctant to consider that there should be significant amortisation if I was dealing with the case without the agreement but that is not the landscape of this case.  I accept that I must consider the reasonable use by the wife of her available resources and that amortisation may be proper.  Simply because the resources that she will achieve will be all that she has to rely upon is not a ground in itself for ruling out amortisation.

43. Equally, however, I do not think it would be fair to amortise all her award. She has a need of security which will not be provided if her entire liquid resources are treated as if amortised.  She needs to have some flexibility to cover circumstances where the expected rate of return may not be met and where there may be calls upon her capital over and beyond what is contained in her budget.  An obvious example which occurred recently was her desire, quite properly, to make a contribution towards her daughter's wedding expenses. 

44. The constituent elements of her award:

i) It is common ground that the wife should have as part of her needs based award her current property free of mortgage.

ii) She must have over and above her income fund some free capital.  It is not appropriate in this case for her to have to break into that fund in order for her to meet the occasional expenses that will inevitably occur from time to time. For example, she has been paying some of her elderly mother's care costs.  That is not a part of her budget but is on the facts of this case an entirely reasonable expenditure.

iii) She needs her income fund.

45. My approach:
Her pension assets total £1.190m which on a Duxbury basis would produce £65k pa. I am satisfied that this sum should be treated as one that is amortised. I accept that if the agreement had worked out as she had hoped she would have had some £3m - £4m of capital, in addition to her pension funds of some £2m, which would have meant that she need not amortise any part of her award.  But the pension funds are in a sense an income producing asset even though they do not have under the new regime to be used for that purpose.

46. I take a different view in respect of her other capital which totals £1.124m.  It seems to me to be proper that some should be amortised but not all.  My approach is that 50% of the non-pension funds should be treated as amortised.  On this basis the amortised fund is £1.190m plus £562k = £1,752m which would produce a Duxbury income of £91k pa.  The remaining £562k at 3.75% would bring in a further £12,645 net pa.  The wife would thus have a shortfall of some £16,355 pa. 

47. It was agreed in argument that in seeking to Duxbury that figure I need to add back in the state pension £8,546 making it appropriate for me to use an annual figure of £25k, producing a shortfall of £389k.

48. During the course of argument I expressed the view that it seemed highly unattractive that in x years' time, when the Spanish property eventually sells, that there should then be renewed financial transactions between the parties when the wife would be required to pay to the husband a lump sum to meet the shortfall between what she is due to pay under the agreement and what she would receive under it. This point was plainly taken on board by the husband who made the offer that I referred to at paragraph 23 above.  It seems to me wholly undesirable that the wife should have the insecurity of knowing that she will have to pay the husband something but having no idea how much because of the uncertainty of the sale price of the Spanish property.

49. I conclude on the basis of the above that she should be discharged from her obligation to repay the husband the sums of £389k (para 47) and £170k (para 11).  This would mean that she would have to repay £1.625m – £559k = £1.066m.  Her current entitlement at a sale price of the Spanish villa of £1.75m is £1.454m so that on that figure she would receive a further £388k (the figures have been rounded which is why the figure is not £389k).

50. The husband's offer was conditional upon me making no other adjustments to the sums payable to the parties. I would regard it as unfair if the wife was left in a position of having to pay further funds to the husband of an uncertain amount, at an uncertain time in the future, and I intend to discharge her from that obligation.

51. I will hear submissions if needed as to how the undertakings and order are rewritten to achieve this end.  I very much hope that the parties will be able to agree it.

52. I recognise that the wife has lost a significant part of what HHJ Hughes had released her from, albeit this is in part the result of a change in the figures since that hearing and the husband's concessions referred to above.  But I am satisfied that this judgment does fairness between the parties against the background of the agreement.  It also enables the wife to meet her needs and gives a degree of headroom which is appropriate in all the circumstances.

53. Conclusion:
The effect of what I have done is to share the pain between the parties, albeit relieving the wife by substantially less than did Judge Hughes.  The wife's financial position has turned out to be better than I had anticipated when I delivered my earlier judgment. In part that was because she had assets which had not been apparent on the documents that I had been shown and in part because of the increased sale price of RG.

54. I recognise that the husband wishes to make an application for costs. He has been successful on his appeal albeit not entirely.  That said, his crucial concession that no money should be repaid to him until the sale of the Spanish property was not made until in court and is a factor that I will consider amongst others in due course, if agreement on this subject is not reached.



 W's Assets



 Less costs of sale 



 Share of RG



 Plus lump sum



 Less repayment of BL mortgage







 Less cash



 Pensions or similar



 SIPP tax free element


 Balance after tax charge and income tax



 Spanish property

 W share


 If sold at £1.75M

 Lump sum



 W Debt to H


 Loan as at 01/08/2018


 BL mortgage repayments as of 01/08/2018


 BL deposit