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Finance and Divorce Update October 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 September 2016

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

This month's update is divided into two parts: Part A is a News Update and Part B comprises a Case law update.

A. News in brief

Summary of "no-fault" divorce issues published by the House of Commons
The House of Commons Library has published a research briefing paper which considers the current basis for divorce and the arguments for and against the introduction of 'no-fault' divorce, both in England and Wales and in Scotland.  To read the paper, click here.

Legal aid statistics show that mediation starts have taken a further tumble
The most recent Legal Aid statistics for the period of April to June 2016 show that the number of mediation assessments in the latest quarter was 12% down compared to the same period in 2015 and currently stand at around half of pre-LASPO levels.  The number of starts was down by 15% over the same period. Click here.

For legally-aided family law cases, although new matter starts were 9% lower than the same quarter in 2015, the number of certificates granted for civil representation was up by 10% (largely due to an increase in public law family certificates). 

In the last two quarters, there has been a steep increase in both applications and numbers of certificates granted in respect of private family law cases supported by evidence of domestic violence, with the number of applications during April to June 2016 over 50% higher than the same period of the previous year and the number granted 35% higher. 

New cases in the family courts rise by 10% year-on-year in latest quarter
The latest statistics published by the Ministry of Justice show that:

• 66,328 cases were started in the Family Court between April and June 2016, a 10% increase on this time last year;

• the average time taken for the disposal of divorce cases with an associated financial remedy application has been steadily increasing from 20.5 weeks, at the start of 2015, to 24.9 weeks by June 2016 (but this may be due to clearing a backlog of cases with the opening of the Bury St Edmunds centralised divorce unit rather than proceedings taking longer to resolve); and

• 34% of private law cases have no legal representation on either side. 

Click here

Court of Appeal to rule on privacy in financial remedy proceedings
The Guardian (amongst others) has reported that the Court of Appeal is considering an appeal against the decision of Mr. Justice Moor that would reveal the identities of a wealthy foreign businessman and his former wife who have been embroiled in a protracted financial remedy dispute.  The husband is reportedly a billionaire and a prominent political figure in his home country while his wife is described in court documents as a socialite.  They have several properties in the UK which are apparently worth tens of millions.

Both the husband and wife have, so far, been anonymised in all court documents.  However, they also want their names to be kept from the public until 2024.  The Times successfully resisted the imposition of a reporting restriction order, but the ruling is being challenged by the husband on the grounds that revealing their identities would compromise their safety. 

Amendments to the Family Procedure Rules 2010
The Family Procedure (Amendments No 2) Rules 2016 (which came into force on 3 October 2016) insert a new rule for applications to set aside a financial remedy order where no error of the court is alleged (together with consequential amendments to Practice Direction 9A). 

Re-route of appeals from 3 October 2016
The Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) (Amendment) Order 2016 re-routes appeals from certain decisions of circuit judges and recorders from the Court of Appeal to the High Court. 

Joint Committee on Human Rights launches inquiry into human rights implications of Brexit

The Parliamentary Joint Committee on Human Rights is launching an inquiry into the human rights implications of Brexit.  Three issues are of particular interest to the Committee: privacy and family life, international trade and other human rights protected by EU law. 

Civil partnership registrations halved since the introduction of same sex marriage

New figures from the Office for National Statistics show that civil partnership formations are on the decline – down 85% since 2013.  Of those civil partnerships formed in 2015: click here

• 66% were between men;

• 48% involved couples aged over 50; and

• the mean age of the couple had risen to 48.5 years for men and 49.1 years for women. 

There were 1,211 civil partnership dissolutions granted in 2015, a 14% increase compared with 2014.  By the end of 2015, 6.8% of male and 11.7% of female civil partnerships in England and Wales are estimated to have ended in dissolution.

Changes to Court forms with effect from 3 October 2016
The following are new Forms:

Form FP161 – Appellant's Notice (Appeals to the Family Division of the High Court)

Form FP161 is only to be used for appeals to the Family Division of the High Court (see re-routing of appeals post-the Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) (Amendment) Order 2016). 

Appeals in all other family cases should continue to be made to the Court of Appeal or the Family Court using form N161 – Appellant's notice. 

Form FP162 – Respondent's Notice (Appeals to the Family Division of the High Court)

Form FP244 – Application notice (For use in applications made within appeals to the Family Division of the High Court)

The following forms have been amended:

FM1 – Family Mediation Information and Assessment Meeting (MIAM)

Form A – Notice of [intention to proceed with] an application for a financial order

Form A1 – Notice of [intention to proceed with] an application for a financial remedy (other than a financial order)

Form B – Notice of an application to consider the financial position of the Respondent after the divorce/dissolution

B. Case Law Update

K v K (Appeal: Excessive Costs) [2016] EWHC 2002 (Fam)
Whilst not a financial remedies case as such, its relevance lies in the treatment of costs.

The parties, a divorced couple, were both Russian nationals.  They had been engaged in protracted litigation over their daughter ("D") who, by the time of this hearing, was only a month from turning 16. 

The litigation had taken place in the Dzerzhinksy District Court of St Petersburg.  Eventually, in April 2013, the mother ("M") and father ("F") agreed the terms of a consent order which was approved by the Russian court.  It provided that D would live with F and have contact with M. 

From that time on, M had contended that F had continually breached the consent order.  In February 2016, she was erroneously advised by her English solicitors that she should apply to the English court to register and enforce the Russian consent order.  She did this in March 2016 and, on the same day as her application was made, District Judge Robinson (sitting as a District Judge of the High Court) ordered that the Russian judgment and consent order be registered under The Hague Convention 1996.  A month later, on 15 April 2016, F challenged the jurisdiction of the English court to make this order. 

Central to F's challenge were the dates on which The Hague Convention 1996 came into force in both the UK and the Russian Federation.  The Convention entered into force in this jurisdiction on 1 November 2012, but it entered into force in the Russian Federation later, on 1 June 2013.  F argued that the Convention was binding, therefore, only between the UK and the Russian Federation from 1 June 2013.  The consent order had been made in April 2013, two months earlier. 

Article 53(2) of the Convention provides that:

"The Convention shall apply to the recognition and enforcement of measures taken after its entry into force as between the State where the measures were taken and the requested State."

Accordingly, F concluded that the English court had simply not had jurisdiction to make the order that it had made. 

Although M quickly received advice from English counsel that F's position was indeed correct, matters were further compounded when M's Russian lawyers incorrectly advised her that the consent order could be registered and enforced in this jurisdiction because the relevant date was the date of the couple's separation and not the date of the consent order.

Only, however, after F issued a notice of appeal, in May 2016, did M finally give instructions to withdraw the proceedings and, even then, she refused to compromise F's costs claim, which stood at £38,813.

Unsurprisingly, Mr Justice MacDonald wholeheartedly agreed with F's submissions commenting that it (the answer) "could not have been any more legally straightforward from the outset".  He set aside the order of District Judge Robinson and made the necessary orders to enable M to withdraw her application for the enforcement of the Russian consent order. That just left the determination of F's costs claim.

F submitted that M had acted unreasonably in both bringing the proceedings and then continuing with them.  There were three strands to his argument:

• there had never been jurisdiction to recognise and enforce the Russian consent order;

• M had, from 22 April 2016 onwards, been repeatedly advised by "highly specialist junior and leading counsel" that her application had no prospect of success and she was at risk on costs, and F's solicitors had also set out in the clearest terms possible that the English court had no jurisdiction to make the orders M sought; and 

• D's own position was that she did not wish to spend extensive time with M and M's continued attempts to enforce the order in light of that illustrated her own unreasonableness.

M meanwhile maintained that she had been far from unreasonable in bringing the proceedings.  In the context of being desperate to have contact with D, she had been a lay client advised initially by both English and Russian lawyers that she could enforce the order and then had had to digest an enormous amount of conflicting technical legal advice; she had simply chosen one set of advice over another.  The defining moment, she alleged, was on 13 May 2016, when D had told her that she did not want to see her; it was that that led her to wanting to withdraw the proceedings. 

After considering the law in this area (and in particular rule 28.1 Family Procedure Rules 2010 and rule 44.2(2) Civil Procedure Rules 1998), MacDonald J was satisfied that a costs order should be made in F's favour.  Not only had F been successful in his appeal, his challenge had been "unanswerable".  He was also satisfied that M's conduct after receiving repeated advice to withdraw her application and in refusing to compromise the appeal until 13 June 2016 was unreasonable.  He was not persuaded to take into account any alleged disparity of means nor the fact that M had received erroneous legal advice at the outset of the proceedings. 

However, this did not mean that F received his costs in full.  MacDonald J said that this was an appropriate case for summary assessment because F's costs were "frankly excessive".  F's claim for almost £39,000 was disproportionate to the single point in issue.  Whilst the case involved a specialist area of law, and attempts to resolve the issue had been rebuffed, the costs claimed were not considered to bear a reasonable relationship to the straightforward nature of the litigation.  After conducting the summary assessment, and highlighting that the stringent test of proportionality in relation to costs applies with equal force to family proceedings, MacDonald J assessed the costs award to be £3,737.50 (less than 10% of the original sum sought).

Costs orders are, as practitioners will know, rare in family cases generally.  However, just because they are rare does not mean that the stringent test of proportionality applies with any less force.

The decision is a reminder that only costs that have been proportionately and reasonably incurred and that are proportionate and reasonable in amount will be the subject of a costs order.  Whilst the court considered that M should pay F's costs, it did not follow that she should automatically have to bear excessive costs.

Here are the items that MacDonald J discounted on his summary assessment:

• hourly rate for the Grade C fee earner was discounted from £270 p/h to £200 p/h;

• hourly rate for the Grade A fee earner was discounted from £550 p/h to £325 p/h;

• hourly rate for the Grade D fee earner was discounted from £150 p/h to £125 p/h;

• three hours' attendance on client was discounted to one;

• 13.3 hours on attendance on the opponent was discounted to 1.5 hours;

• attendance on others was not particularised in any meaningful way so the costs (£2,341) were completely disallowed;

• work done on documents was also not particularised in any meaningful way and where letters to the other side had already been dealt with and Counsel had drafted the notice of appeal and hearing documents, the costs were discounted from £9,352 to £325;

• attendance at the hearing by the Grade A fee earner was considered inappropriate and costs were only allowed for attendance by a Grade D fee earner;

• travel to the hearing (and waiting time) was discounted from £4,850 to £62.50;

• counsel's costs in advance of the hearing were discounted from £4,550 to £800; and

• counsel's costs in attending two hearings was discounted from £8,500 to £1,250.

Waudby v Aldhouse (Financial Remedies: Delay in Application) [2016] EWFC B63
The parties had met in 1979 and had married in 1982.  There were no children.  Following a failed car business (and a subsequent bankruptcy), the husband ("H") had retrained as a commercial pilot.  The wife ("W") had worked and had taken on a second job whilst H was bankrupt.  In 1990, they had purchased a barn, planning to convert it into their home.  Unfortunately, a protracted building dispute followed together with ruinous litigation which resulted in both of them being made bankrupt.  At around the same time, H began an affair with his now second wife.  He went on to have two children, the older of whom had been born by the time of H and W's separation in 1994.  W had subsequently suffered an emotional breakdown and had retired on ill-health grounds. 

After separation, whilst W quickly took steps to dissolve the marriage, she did nothing to pursue any financial claim.  It was apparent that she continued to trust H, and she believed his assurances that he would voluntarily provide for her. She held off making any financial claim in the expectation that H would "see her right". 

During the following 20 years, and despite ongoing health difficulties, W had a variety of part-time and full-time roles in employment, self-employment and as a director of her own limited company.  Her earnings had peaked in 2002/2003 at £28,000 p.a. and she had been able to buy a car and a house.  She had also had a cohabiting relationship that had lasted four or five years.  H, despite his promises, had not given W any financial support. 

By 2014, W's financial circumstances had worsened, triggered by a reduction in her ill-health pension payments.  This left her with a £798 shortfall each month.  She issued her Form A and sought a needs-based award.

At first instance, the Deputy District Judge considered the impact of the delay and concluded that H was culpable, having lulled W into a false sense of security.  An order was made for H to pay W a lump sum of £10,000 and a joint lives periodical payments order for £9,576 a year. 

H sought permission to appeal.  He contended that no substantive orders of any sort should have been made and that it had been "simply wrong in law" and outside the reasonable ambit of judicial discretion after such a delay to make the orders the Deputy District Judge had made. 

HHJ Rogers granted H permission to appeal, finding that the points that H raised were substantial, persuasive and deserving of careful and full analysis with a real prospect of success.  He went on to hear the appeal. 

HHJ Rogers concluded that any argument that an award made after 20 years was, per se, wrong in law.  H had sought to rely upon the six-year period espoused in Rossi v Rossi [2006] EWHC 1482 (Fam).  HHJ Rogers made clear that paragraph 32 of Rossi did not lay down or articulate an absolute rule of law; the Supreme Court had had the opportunity to impose a judge-made limitation period in Wyatt v Vince [2015] UKSC 14 and had chosen not to do so. 

Nevertheless, he went on to allow H's appeal and, given that there was no suggestion that the case be remitted for hearing, discharged the substantive orders made, substituting a dismissal of all financial claims between the parties. 

Although he found that the Deputy District Judge's application of the law had been correct, he found that the exercise of her discretion had been "fatally flawed" and could not stand.  The crux was the consideration of the causal link between the relationship and W's needs; i.e. whether W's financial circumstances now had been generated by the marriage (Miller v Miller; McFarlane v McFarlane [2006] UKHL 24; Wyatt v Vince; Rossi).  The Deputy District Judge had had "no difficulty" in finding this causal link, attributing W's breakdown and subsequent health problems to be a direct and "wholly understandable" result of discovering the affair, confronting her own childlessness, the loss of her home and the bankruptcy.  H's conduct in "stringing her along" was bound to have exacerbated the position.  In turn, this had all impacted on W's earning capacity, as had the joint bankruptcy. 

HHJ Rogers equally had no difficulty in finding that the Deputy District Judge had erred in finding that there was a causal link justifying an award.  After analysing the relevant paragraphs of the judgment, he commented that her thinking was so flawed that it invalidated the conclusions drawn.  For example, whilst acknowledging the absence of any expert psychiatric or medical evidence on W's mental health, W's ill-health was central to the justification of the award.  No consideration had been given to W's apparent success in employment, her ability to survive without financial support for 20 years or her underlying susceptibility to mental health problems outside of any aspect of the relationship.  HHJ Rogers observed that attributing W's ill health to events more than 20 years earlier and to the marriage without a firm expert or other evidential basis had simply been wrong. 

Moving on to quantification, HHJ Rogers also had further difficulty with the Deputy District Judge's reasoning.  There appeared to be a reliance on a continuing contribution by W to H's wealth creation even post-separation.  He stated that the Deputy District Judge had approached "adjustment without undue hardship" in a highly artificial way, since H had made no payment from which W had been required to adjust.  Although W was now in the position of having to sell her house at the end of the mortgage term, the house had been purchased by W post-divorce, at the peak of her earnings.  This was not evidence of W's inability to adjust, said HHJ Rogers.  Also, as all of H's assets had been accumulated post-divorce (remember that the couple were bankrupt at the time of separation and divorce), the idea that H's improved circumstances now justified a lump sum payment to relieve W of some of her personal liabilities was unsound.

In short, HHJ Rogers observed that the Deputy District Judge had strained to rationalise her decision in favour of W, who had been "plainly deserving of sympathy" (and H had "behaved badly").  The joint lives order was both the "most surprising and controversial element" of the case, he said – and, whilst not "impossible as a matter of pure law", it was possibly unprecedented.  The drive for the periodical payments appeared to have come from arithmetical necessity rather than the need to balance the positions of the parties and all the circumstances of the case to achieve a fair outcome.  In doing this, the Deputy District Judge had once again erred. 

It is worth considering what might have happened had the couple sorted out their finances at the time of separation.  They would have been in great financial difficulty by the sounds of it, and it would have been unlikely that a substantive order would have been made.  Leaving that aside, a joint lives order was by no means inevitable and would have been unlikely to have survived W's cohabitation and her relative prosperity between 2000 and 2010. 

Welch v Welch [2016] EWFC B64 and [2016] EWFC B65 (HHJ Hess) (12 and 15 September 2016)
Welch v Welch is a long-running dispute between a couple who divorced some time ago.  In September 2014, following a four-day final hearing, a final order ("the September 2014 Order") was made providing that:

• a jointly-owned property, Inglenook, be sold; and

• the husband ("H") purchase a property selected by the wife ("W") up to the value of £250,000. 

W had always considered the final order to be grossly unfair to her.  She remained optimistic that she would, one day, be vindicated and was confident of extracting £10m from H or his solicitors.  She regarded the provision of housing worth up to £250,000 "insulting" and had no current intention of making use of it.  She had made numerous attempts to undermine the substance of the September 2014 Order by way of appeal or set aside, but had been unsuccessful.  Matters had gone as far as to the Court of Appeal this year, when Lord Justice McCombe had ruled that all such attempts should be dismissed and declared to be "totally without merit".  Further, W could not request the decisions to be reconsidered at an oral hearing. 

W had also attempted to impede the sale of Inglenook (including trying to overturn the possession order made), but had eventually had to concede defeat earlier this year. 

Once H had possession of Inglenook, he had found a purchaser, but W had refused to co-operate with the sale resulting in H having to ask the court to execute the conveyancing documents.  As W stated that she remained unwilling to co-operate, HHJ Hess made an order (dated 7 June 2016 – "the 7 June Order") which he believed legitimately authorised the execution of the documents, and he so executed the documents on 8 June 2016.

W appealed the 7 June Order.  Of the various grounds put forward, one was found to have a real prospect of success.  This was based on the proper construction of s.39 Senior Courts Act 1989.  However, this same ground was also found, by McCombe LJ in August 2016, to be "technically arguable… [but with] no underlying merit".  Instead, the wife "ought to be co-operating in procuring the sale of this property rather than obstructing it".  The appeal, he said, would have been "a futile exercise". 

The other grounds (which were the same arguments put forward in the appeals against the September 2014 Order) were, HHJ Hess understood, the "totally without merit" grounds that McCombe LJ had been referring to when he had said that all avenues for appeal had now been exhausted. 

By chance, whilst all of this was going on, H and the purchaser renegotiated the price down meaning the documents executed by HHJ Hess on 8 June were now redundant.

In the interests of time and cost effectiveness, rather than contest an appeal, H applied to have the 7 June Order set aside and sought a fresh order which incorporated the new sale price and which (without doubt) complied with s.39 Senior Courts Act 1981. 

W continued to refuse to co-operate, challenging the appropriateness of an execution of sale in light of her appeal, and refused to sign the draft consent order to set aside the 7 June Order.  H applied to the court.

In light of all the circumstances, HHJ Hess reached the clear conclusion that he should grant H's application.  Not only was it beyond doubt that W had no intention of co-operating, the order did no more than implement the September 2014 Order.  H sought a costs order of £5,291.50. HHJ Hess summarily assessed the sum downwards to £2,000, finding that the amount claimed was disproportionately high for a straightforward application.  He observed, however, that there was almost no prospect of W making payment. 

In his judgment, HHJ Hess made clear that he and W disagreed about the interpretation of McCombe LJ's 26 August decision. HHJ Hess believed that the ruling gave W permission to appeal the 7 June Order on the sole ground that there were realistic prospects of arguing that it did not comply with s.39 Senior Courts Act 1981 but had declared all the other grounds to be without merit and not open for reconsideration at another oral hearing.  If correct, the only Court of Appeal hearing would be one dealing with W's appeal on the ground that s.39 had not been complied with.  In light of that, HHJ Hess saw no merit in W's argument that the residual existence of the appeal prevented him from making the order H sought. 

W strongly believed that a further oral hearing was due to take place to consider the substantive issues that she was raising.  As a result, HHJ Hess sent a copy of his judgment to McCombe LJ to ensure that the intentions of the Court of Appeal were not being inadvertently undermined. 

This is where the second judgment ([2016] EWFC B65) picks up.  Following judgment on 12 September 2016, W sent confirmation that another hearing had indeed been listed on 2 November 2016 to allow W to attempt to persuade the Court of Appeal to grant her permission to appeal the 7 June Order on wider grounds than just the s.39 Supreme Courts Act 1981 point.  Of course, given that H had applied to have the 7 June Order set aside and was not contesting the appeal, there did not seem much purpose in W widening her appeal grounds.  HHJ Hess's impression was that W viewed the upcoming hearing as an opportunity to re-open her case generally. 

The Civil Appeals Office subsequently confirmed that their view was that the residual existence of the appeal process (i.e. the 2 November 2016 hearing) did not render it impermissible for HHJ Hess to determine H's application for a fresh order.  W was free to appeal the order made following the 12 September judgment, an option she had already got underway.  Directions were given for the order made on 12 September to be sealed. 

Taylor v Taylor [2016] EWFC (HHJ Rogers) (11 March 2016)
The couple, both in their fifties, had started cohabiting in 1982.  They had married in 1988 and had had four children.  The relationship first broke down in 2011.  There had then been a brief reconciliation, but the marriage had subsequently broken down again in 2014, and divorce proceedings were issued.

The wife ("W") was unemployed and had never worked during the marriage.  She remained in the family home and divided her time between England and Tenerife, where the couple owned a holiday home. 

The husband ("H") was a world famous and renowned professional darts player (Phil "The Power" Taylor).  He was unparalleled in terms of his success and world-wide recognition.  He had come from a very modest background as a factory and manual worker, but now had three sources of income:

• Phil The Power Taylor Limited – his direct earnings and winnings were channelled into this company;

• Professional Darts Corporation ("PDC") – he was a 8.2% shareholder in this organisation in which all (or the majority) of professional darts players involve themselves as it provides a management structure through which television or other promotional organisations can be dealt with; and

• Phil Taylor Promotions Limited – a merchandising company which was not active and had no significant assets.

In all, H was earning around £1m a year.  He had never drawn the entirety of his earnings, much of which had been reinvested. 

The capital consisted of the following:

• Properties, including family homes for both H and W, two holiday homes and investment properties; 

• shares in PDC, worth around £575,000 net; 

• shareholders' funds in Phil The Power Taylor Ltd, worth about. £758,000 net; and

• pensions, worth £149,000 in cash terms.

In total there was capital worth approximately £3.4m. 

Between them, the parties had spent £48,000 on legal costs (£40,000 by W), and there were some liabilities including H's credit card debt and in respect of income tax. 

The investment properties deserve a special mention because there was "serious concern" attributed to their capital value.  The properties were largely occupied by family and friends, the arrangements were very informal and there were few (if any) documents or records.  This was significant because it did not look as though there was any sort of protection for H (or W) to recover possession quickly.  Other properties also contained small businesses.  The valuation of the properties had not taken these difficulties in tenure into account. 

W sought an equal division of the non-pension capital, a 65:35 split of pensions in her favour and joint lives periodical payments at the rate of £6,000 a month.  Periodical payments, she argued, were necessary because the capital simply wasn't there to fund a clean break.  H's calculations understated W's needs and would require her to tie all of her assets up to generate income. 

H, meanwhile, offered to transfer the investment properties to W as well as the pensions, with a further lump sum of £480,000 (predicted to produce an income of £42,000 a year) on the basis of a clean break (a 65:35 division in W's favour).  The unequal division of capital, he said, would meet W's current and future needs and would allow her to adjust. 

H argued that there had been post-separation accrual and that March 2015 was a more sensible date to look at the finances, an argument W strongly resisted.  There had been growth of around £310,000 in the value of PDC and Phil The Power Taylor Ltd since March 2015.

Before considering what award to make, HHJ Rogers made a number of findings, including that:

• W had no experience of running the rental properties, and to allocate them to her would be burdensome and unfair, and would leave her with all the risk; 

• H's career, whilst not over, was nearing its end, and his time at the top level was finite.  He was likely to have another two to four years playing at the top level, by which time he would be 60; and 

• W's budget was no more than a vague estimate, with some figures inflated and other obvious items missing.  HHJ Rogers assessed a proper figure to be £50,000 a year.

HHJ Rogers observed that this was a case involving a long marriage, where each party had made an equal contribution.  W required security as she had no realistic opportunity to improve her position.  H's future was more optimistic but his playing time was limited.  Following his retirement, there would be some continued earnings, but what those would be was unquantifiable.  The starting point was a 50:50 division.

The Judge was not persuaded by H's argument that the court should assess the finances as at March 2015.  The growth in assets represented not only income earned by H but also an increase in value of his stake in PDC, which was linked to the whole group of professional darts players.  The increase could not be taken in isolation; H's status and ability had grown over the course of the marriage and reflected W's contributions behind the scenes.  Instead, HHJ Rogers concluded that the fairest way was to take a "notional midway point, not to be calculated mathematically but a figure or a position that nevertheless reflects what I regard as counterbalancing arguments, the stronger being that of the husband, so that the normal starting point of the current wealth is justifiably departed from".

HHJ Rogers, satisfied that a clean break was possible and that a joint lives order was unattractive, considered carefully the sum to be awarded.  He rejected H's proposal of £480,000 as insufficient.  Having already formed a view on the division of the properties so as to spread the risk and responsibility of the investment properties, HHJ Rogers calculated that an appropriate lump sum would be £830,000, given the availability of the resources.  It represented a 58:42 division in W's favour (or 63:37 at March 2015 or 60:40 at the "rough midway point").  Funds in Phil The Power Taylor Ltd could be easily extracted, and there was cash in the bank as well as other capital.  Currently earning at a high level, HHJ Rogers was content that H could quickly restore his cash-flow. 

The following order was made:

• the family home, the Tenerife holiday home and three investment properties were to be transferred to W (with the costs of transfer being paid by H);
• H was to retain his own family home and the remaining investment properties;

• H was to transfer the pensions to W;

• H was to pay W a lump sum of £830,000 on a clean break basis; and

• there was to be no order as to costs.