“95. It is a substantial amount of money, but it is an amount of money which F does not currently need and appears unlikely to need in the foreseeable future. His intention is for it to be part of the assets of the discretionary trust he has set up and his responses make it clear that in reality he is not expecting repayment other than on a long term basis whereby the loan remains an asset of his estate and the discretionary trust which is intended to protect his assets for future generations. 96. Considering all of these factors including F’s love for and ongoing financial support for both his son and grandson, I conclude that the loan is very much a soft loan for the purposes of these financial remedy proceedings.”
"If necessary – he trusted me, it is his money "
"I took a loan to buy the house and my father expects to have either the asset preserved or to have his money back. I took the loan honourably – with an honest intent to repay and to preserve the asset for him, or for the trust in the event of his passing. So if it were possible we could minimise the disruption for C, so the home he has known for the bulk of his life… to reduce that and not sell, and still preserve my father’s assets, that would be preferable to me; that is congruent with what I persuaded Father to offer; it is just that W's opinion is the principle of ownership which is important. "
"I don't know; it's all at sea at the moment. If it has to be sold, it must; if there's an alternative route in the interests of my son and grandson, so be it, but I need to be given advice on that. But I do want the thing confirmed, the loan and the charge confirmed. It is my money and I want it back."
“The general law which I apply is as follows: i). As a matter of practice, the court will usually embark on a two-stage exercise, (i) computation and (ii) distribution; Charman v Charman[2007] EWCA Civ 503 . ii). The objective of the court is to achieve an outcome which ought to be "as fair as possible in all the circumstances"; per Lord Nicholls at 983H in White v White[2000] 2 FLR 981 . iii). There is no place for discrimination between H and W and their respective roles; White v White at 989C. iv). In an evaluation of fairness, the court is required to have regard to the s25 criteria, first consideration being given to any child of the family. v). S25A is a powerful encouragement towards a clean break, as explained by Baroness Hale at [133] of Miller v Miller; McFarlane v McFarlane[2006] 1 FLR 1186 . vi). The three essential principles at play are needs, compensation and sharing; Miller; McFarlane. vii). In practice, compensation is a very rare creature indeed. Since Miller; McFarlane it has only been applied in one first instance reported case at a final hearing of financial remedies, a decision of Moor J in RC v JC[2020] EWHC 466 (although there are one or two examples of its use on variation applications). viii). Where the result suggested by the needs principle is an award greater than the result suggested by the sharing principle, the former shall in principle prevail; Charman v Charman. ix). In the vast majority of cases the enquiry will begin and end with the parties' needs. It is only in those cases where there is a surplus of assets over needs that the sharing principle is engaged. x). Pursuant to the sharing principle, (i) the parties ordinarily are entitled to an equal division of the marital assets and (ii) non-marital assets are ordinarily to be retained by the party to whom they belong absent good reason to the contrary; Scatliffe v Scatliffe[2017] 2 FLR 933 at [25]. In practice, needs will generally be the only justification for a spouse pursuing a claim against non-marital assets. As was famously pointed out by Wilson LJ in K v L[2011] 2 FLR 980 at [22] there was at that time no reported case in which the applicant had secured an award against non-matrimonial assets in excess of her needs. As far as I am aware, that holds true to this day. xi). The evaluation by the court of the demarcation between marital and non-martial assets is not always easy. It must be carried out with the degree of particularity or generality appropriate in each case; Hart v Hart[2018] 1 FLR 1283 . Usually, non-marital wealth has one or more of 3 origins, namely (i) property brought into the marriage by one or other party, (ii) property generated by one or other party after separation (for example by significant earnings) and/or (iii) inheritances or gifts received by one or other party. Difficult questions can arise as to whether and to what extent property which starts out as non-marital acquires a marital character requiring it to be divided under the sharing principle. It will all depend on the circumstances, and the court will look at when the property was acquired, how it has been used, whether it has been mingled with the family finances and what the parties intended. xii). Needs are an elastic concept. They cannot be looked at in isolation. In Charman (supra) at [70] the court said: "The principle of need requires consideration of the financial needs, obligations and responsibilities of the parties (s.25(2)(b); of the standard of living enjoyed by the family before the breakdown of the marriage (s.25(2)(c); of the age of each party (half of s.25(2)(d); and of any physical or mental disability of either of them (s.25(2)(e)". xiii). The Family Justice Council in its Guidance on Financial Needs has stated that: “In an appropriate case, typically a long marriage, and subject to sufficient financial resources being available, courts have taken the view that the lifestyle (i.e “standard of living”) the couple had together should be reflected, as far as possible, in the sort of level of income and housing each should have as a single person afterwards. So too it is generally accepted that it is not appropriate for the divorce to entail a sudden and dramatic disparity in the parties’ lifestyle.” xiv). In Miller/McFarlane Baroness Hale referred to setting needs “at a level as close as possible to the standard of living which they enjoyed during the marriage”