OS v DT [2025] EWFC 156 (B)

[2025] EWFC 156 (B)B E T W E E N:OS Applicant- and -DT RespondentIMPORTANT NOTICE This matter was heard in private. The judge gives permission for this version of the judgment to be published. In no report of, or commentary on, the proceedings or this judgment may the parties or their children or their addresses be identified. All persons, including representatives of the media and legal bloggers must ensure that the terms of this rubric, are strictly observed. Failure to do so may be a contempt of court.Mr Alex Tatton-Bennett (Counsel instructed by Penningtons Manches Cooper, Solicitors) appeared on behalf of the Applicant wife.Mr Jonathan Southgate KC (Counsel instructed by Family Law in Partnership, Solicitors) appeared on behalf of the Respondent husband.Date 2 nd May 2025
Between
Applicant wifeApplicantRespondent husbandRespondent

INTRODUCTION

[1]This case concerns the financial remedies proceedings arising out of the divorce between OS (to whom I shall refer as “the wife”) and DT (to whom I shall refer as “the husband”).[2]The case proceeded to a final hearing over 4 days on 28th, 29th, 30th April and 1st May 2025.[3]Both parties appeared before me by Counsel. Mr Alex Tatton-Bennett (Counsel instructed by Penningtons Manches Cooper, Solicitors) appeared on behalf of the wife. Mr Jonathan Southgate KC (Counsel instructed by Family Law in Partnership, Solicitors) appeared on behalf of the husband.[4]I am grateful to both Counsel for their assiduously hard work on the case and the skilful, persuasive and courteous way they have respectively conducted their cases – both parties have been represented before me at a first-class level; but it has, of course, come at a large cost. The wife has incurred a total of £243,904 in legal costs and the husband a total of £489,433. There is an issue arising from the fact that the husband has spent significantly more money in costs, to which I will return below.[5]The court was presented with two electronic evidence bundles running to a total of 983 pages and a number of other documents have been exchanged during the final hearing, including an authorities bundle. I have considered all the documents presented to me, in particular I have considered:-(i) A collection of applications and court orders.(ii) Material from the wife including her Form E dated 26th February 2024 and her statements dated 10th January 2025 and 5th March 2205 as well as her answers to questionnaires and other disclosure.(iii) Material from the husband including his Forms E dated 21st February 2024 and 17th April 2024 and his statements dated 13th January 2025 and 5th March 2025 as well as his answers to questionnaires and other disclosure.(iv) A Scott schedule dealing with issues arising from various items said to be held by the parties on behalf of their respective parents.(v) A statement from JT, the husband’s father, dated 20th January 2025.(vi) Material from various experts including AS (an SJE valuer), DA (a valuer instructed by the husband), Wilson Wright LLP (SJE tax experts) and Mathieson Consulting (SJE PODE).(vii) A properly completed ES2 document.(viii) An agreed chronology and statement of issues.(ix) Selected correspondence and disclosure material.(x) The authorities which each Counsel considered relevant to my decision-making.[6]I have also heard oral evidence from the wife, the husband and the husband’s father, all subjected to appropriate cross-examination.[7]I have also had the benefit of full submissions from each counsel in their respective opening notes and their closing oral (and partly written) submissions.

CHRONOLOGY OF EVENTS

[8]The history of the marriage is as follows:-(i) The wife is in her early forties. She was born and brought up in an Eastern European country but had a university education in the USA and has lived in England for most of her adult life. She is an able, intelligent and well-educated person. She spent a good number of years working in the finance sector in the City of London (broadly from 2004 to 2017, interrupted by periods of maternity leave in the later years) and then spent three years running a tech start-up company, but more recently has worked in the social sector, helping children with special educational needs.(ii) The husband is in his mid-forties. He was born and brought up in a Western European country but was educated in England from age 16. Likewise, he is an able, intelligent and well-educated person. Likewise, he developed a career in the finance sector in the City of London, in recent years as a head of department for a large firm (to which I will refer as "H’s employer "), a high-ranking, demanding and well-paid position in this sector on any view. His case before me is that he has now elected to take voluntary redundancy from his employer and that this will be implemented in the very near future and that, whilst negotiations about its precise terms are ongoing, there is no doubt that there will be a redundancy.(iii) They met in 2006 whilst both working at another finance firm in London, started a relationship of cohabitation in April 2009 and married in May 2014.(iv) There are three children of the marriage aged 10 years and younger. A and B currently attend a school in London. C currently attends another school in London. Both these schools are fee-paying schools and both parties anticipate the children continuing in fee-paying schools for the remainder of their primary and secondary education.(v) From April 2009 to December 2011 the family lived at the husband’s London flat (which he had owned in his sole name since 2007). From December 2011 until 2023, the family lived at the former matrimonial home in London (a house purchased in the joint names of the parties). Sadly, the marriage, which had been in difficulties for a while, broke down over the summer of 2023 and on 30th September 2023 the wife moved out of the family home and the next day moved into rented accommodation nearby and the husband remained in the family home and the parties have lived separately since.(vi) Following the separation there were discussions as to where the children would live, which were resolved in mediation in early 2024 with an agreement that their time would be divided exactly equally between the parties. They would spend each Monday and Tuesday night with the wife, each Wednesday and Thursday night with the husband and Friday night to Sunday night would be alternated between the parties. Likewise, the school holidays would be divided exactly equally. This is broadly what has happened in the last year or so.(vii) Divorce proceedings were commenced on 8th February 2024. Decree Nisi (Conditional Divorce Order) was ordered on 8th April 2025. Decree Absolute (Final Divorce order) awaits the outcome of the financial remedies proceedings and is not, in itself, controversial.[9]The financial remedies proceedings chronology is as follows:-(i) The wife issued Form A on 5th March 2024.(ii) Forms E were exchanged in April 2024.(iii) A First Appointment order was made (under the Accelerated First Appointment Procedure) on 5th July 2024.(iv) A private FDR took place on 11th September 2024, with Mr Nicholas Anderson as the tribunal; but sadly no settlement was reached.(v) A post-pFDR directions hearing took place before me on 2nd October 2024.(vi) A PTR hearing took place before me on 7th March 2025.(vii) Narrative statements were exchanged in March 2025.(viii) A final hearing has taken place before me on 28th, 29th, 30th April and 1st May 2025.(ix) I reserved judgment, indicating that I would hand down a written judgment as soon as I was able, which I now do.

BASIC LAW

[10]In dealing with the claim, I must, of course, consider the factors set out in Matrimonial Causes Act 1973, sections 25 and 25A together with any relevant case law.[11]Matrimonial Causes Act 1973, section 25, reads as follows:-(1) It shall be the duty of the court in deciding whether to exercise its powers under section 23, 24, 24A or 24B above and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.(2) As regards the exercise of the powers of the court under section 23(1)(a), (b) or (c), 24,24A or 24B above in relation to a party to the marriage, the court shall in particular have regard to the following matters:- (a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire; (b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future; (c) the standard of living enjoyed by the family before the breakdown of the marriage; (d) the age of each party to the marriage and the duration of the marriage; (e) any physical or mental disability of either of the parties to the marriage; (f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family; (g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it; (h) in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.[12]Matrimonial Causes Act 1973, section 25A, reads as follows:-(1) Where on or after the grant of a decree of divorce or nullity of marriage the court decides to exercise its powers under section 23(1)(a), (b) or (c), 24 or 24A or 24Babove in favour of a party to the marriage, it shall be the duty of the court to consider whether it would be appropriate so to exercise those powers that the financial obligations of each party towards the other will be terminated as soon after the grant of the decree as the court considers just and reasonable.(2) Where the court decides in such a case to make a periodical payments or secured periodical payments order in favour of a party to the marriage, the court shall in particular consider whether it would be appropriate to require those payments to be made or secured only for such term as would in the opinion of the court be sufficient to enable the party in whose favour the order is made to adjust without undue hardship to the termination of his or her financial dependence on the other party.

SECTION 25 ANALYSIS

[13]All three children of the family are under 18 and their welfare is therefore my first consideration. It is important that any order I make ensures that they will be suitably housed when with each of their parents, that each household has sufficient income to meet their essential needs and that their education is secured at a suitable level (the parties agree this will be in the fee-paying sector to the conclusion of their secondary education).[14]I turn to the “property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future”. I propose to make the following comments and findings under this heading. Where I make no comment, this is because the figure has been agreed between the two legal teams.[15]The value of the family home has been the subject of an argument which appeared at the outset of the final hearing to require the attendance of two professional valuers. In the end, before this happened, an agreement was reached which placed the gross value at £1,850,000 and the net equity at £1,232,793 (£1,850,000 less 3% notional sale costs and the outstanding mortgage of £561,707). Accordingly, the figure on my schedule below is £1,232,793. It is common ground that the husband will receive this property in his sole name as part of the outcome of the case, with the wife discharged from her mortgage covenant obligations.[16]The husband is the owner (jointly with his sibling) of a property in his home country (to which I will refer as "the husband’s father’s home") which is currently occupied by his father (JT, age 75) and his current wife (age 68), his first wife (the husband’s mother) having died in 2015. The property is agreed to be worth a gross value of £688,409 and a net value (after the deduction of 3% notional sale costs) of £667,757. The husband’s interest is 50% and is therefore worth £333,878. This figure is included in my asset schedule below, but it needs to be noted both that this was transferred to the husband and his sibling by his parents (presumably as part of inheritance planning) and that the husband’s father and his wife both have a right to live there during their lifetime. As such, this asset is unlikely to be accessible to the husband for a significant number of years and, it is common ground, it is not to be treated as matrimonial property.[17]With the exception of the family motor car (which is included on the schedule at a value of £15,000) I have taken the view that the family’s chattels should be divided as a separate exercise and I have therefore not included any chattels on my asset schedule.[18]Amongst the husband’s sole assets are a number of RSUs which have been awarded to him as a result of his work with his employer. These have been valued for the purpose of my schedule below but this figure will, of course, fluctuate over time and these assets will only become accessible over time. In relation to some of them the husband concedes that Wells sharing is appropriate to alleviate the problem of fluctuating values. In relation to others the husband argues that they represent post-separation accrual which should not anyway be shared. I shall deal below with this dispute.[19]Amongst the husband’s sole assets are his investments in a number of start- up investments typically start-up businesses with uncertain futures, and a private equity investment fund linked to his employer (PEIF), also typically investing in start-up businesses. I am satisfied (having heard the husband’s detailed explanations in each case) that the figures in the schedule below represent reasonably reliable current estimates of value, referable to reliable documentation from the companies concerned. Of course, in each case the business may fail and the value go down to zero or the business may flourish and the value rise significantly. In relation to these assets, the husband would prefer the court to allow him to buy out any sharing claim by the wife at current values. The wife would prefer for these assets to be Wells shared. I shall deal below with this dispute.[20]It is common ground that the husband has, over many years, managed and invested and held money and other assets of substantial value on behalf of his parents and, after the death of his mother in 2015, his father. The arrangements in this regard have not been straightforward or transparent and, given the lack of trust between the wife and the husband after their separation and through their divorce, this has been a real difficulty in the case. Establishing the true position (and therefore the true parameters of a sharing claim) has been a grindingly slow process. Although the dispute has (with some exceptions) been ironed out in the last few months, it has created a significant inhibition on settlement of the case and given rise to an argument before me as to who should be treated as being responsible for the legal costs which have been caused by this argument having taken place. It has been asserted by the wife (with some force) that the husband’s first (unsworn) Form E badly misrepresented the position and did not assist the building of trust. Further, whilst the husband’s second Form E presented a picture which was closer to the eventual position, certain representations within it (later withdrawn) were not helpful to the understanding of the husband’s position, nor was the annexing of a highly confusing document purporting to be a loan agreement between the husband and his parent signed in June 2023, which document (even on the husband’s case) contains a number of significant errors. I am not surprised that the wife’s solicitors wished to interrogate the position further (I think most responsible solicitors would have taken the same view) and transparency was not assisted by the husband’s refusal to produce documentary evidence in support of his position (saying it was disproportionate, a position reluctantly conceded by the wife before the First Appointment) and the rather vague narrative answers in his replies to questionnaire. The husband’s attitude could be characterised as being ‘just trust me, why are you troubling me with these unnecessary questions’ rather than attempting a proper explanation of a confusing situation with, potentially, significant amounts of money at stake. It should not have been difficult for somebody of the husband’s intelligence and financial background to produce an early and properly documented explanation, but he chose not to do so. Unfortunately, it was not until the exchanges which took place between September and December 2024 (after the pFDR) that the husband did some more detailed work on the position, which gradually became clearer to the wife and her legal team. As it turned out, on the majority of the arguments involved, the wife in the end accepted what the husband had said and I have had to resolve only a few residual arguments relating to the indebtedness between the husband and his parent. Further, the husband has conceded (this concession is formally recorded in my order of 7th March 2025) that his potential liability for various sums of debt interest, which he asserts exists, should be disregarded for the purposes of calculating the wife’s sharing claim so (on his case) it does not really matter whether the liability exists or not. This has led the husband to seek the reimbursement of what he says have been the extra costs involved by arguing about these matters (there is an N260 quantifying these costs at £115,171). Conversely, the wife argues that I should deal with this matter by penalising the husband by adding back into the asset schedule the notional sum of £245,529, representing the difference between the costs incurred by the husband (£489,433) and those incurred by the wife (£243,904).[21]Before dealing with the costs issues, I propose to comment on the residual disputed items relating to the indebtedness between the husband and his father as follows:-(i) There had been, at the outset of the final hearing, a dispute as to the existence of a loan of £79,315, said by the husband to be owed to his father. In the course of cross-examination (for some reason this had not been noticed before by the husband) it was established that this sum had been paid into the bank account identified as the ‘JT account’, i.e. that being held for the husband’s father such that the loan had, in effect, been repaid. In closing Mr Southgate conceded the position on this.(ii) It is common ground that the debt to the husband’s father in the sum of £83,216, representing the residue of the net sale proceeds of a buy-to-let property in his home country (to which I will refer as “the buy-to-let property”) has been established and should be included in the asset schedule.(iii) What remains is a series of figures asserted by the husband to represent interest owed by him to his father on various loans taken over many years. The largest of these was quantified in the sum of £71,750, which sum represented a fairly notional calculation of interest said to be due on a loan which had been created in relation to the purchase by the husband of his London flat in 2007 but terminating on the notional date of 1 January 2017 (said to be related to the purchase of some other investments, but the link to this date being extremely vague). Having heard the evidence on this I have concluded that the husband has not established on a balance of probabilities that such liability exists. The contractual origins of this liability are wholly opaque, the only documents relating to it having been created long after 2007. The quantification of the period of interest is arbitrary and unconvincing. Further, even if such liability might exist, having heard the husband’s father giving evidence, and having considered the tests suggested in my own judgment in P v Q [2022] EWFC B9, I would place it, and the other interest-related debts asserted by the husband, firmly in the category of soft debts which are highly unlikely in reality ever to be enforced and I do not propose to include them in my asset schedule. I regard these figures as largely representing an artificial construct in the context of these financial remedies proceedings.[22]In considering the competing costs arguments arising out of this argument (see above) I shall comment as follows. On the one hand, I can understand the husband’s argument to the effect that he has been proved to be correct on most of the issues originally disputed, and the interest-related debt dispute (where he was not successful) was neutralised in its effect by the concessions he made which were recorded in my order of 7th March 2025. On the other hand, I can understand why the wife’s solicitors felt it necessary and appropriate to challenge an initially confusing picture and to be suspicious of the husband’s initially opaque responses. I recognise the jurisdiction of the court to penalise a party overspending on costs. I note the way it is expressed in the Dictionary of FinancialRemedies (2025 edition at p.42):- “Where one party has incurred legal costs at a sensible and moderate level and the other has incurred costs at a grossly disproportionate level, the simple inclusion of both debts can be unfair to the sensible and moderate spender, as the distribution exercise following the inclusion of such a debt (whether on needs or on sharing principles) can in reality amount to something fairly indistinguishable from an inter partes costs order, apparently breaching the spirit of the no order for costs starting point under FPR 28.3(5). To the frustration of many sensible and moderate spenders, the courts can be slow to exclude legal costs debts from asset schedules; but in obvious cases the court can deal with any unfairness arising from this by making an adjustment in the distribution of capital, for example by excluding from the asset table a portion of the over-spender’s unpaid costs and/or adding back a portion of the over-spender’s costs already paid, thus appropriately penalising the over-spender without actually making an inter partes order for costs: see, for example, RH v RH [2008] EWHC 347; LS v SJ [2012] EWHC 2960; A v M [2021] EWFC 89 and YC v ZC [2022]EWFC 137.” On balance I have decided that it would be wrong to penalise either party in this case for the costs of this exercise in the ways suggested by Counsel respectively. There are arguments on both sides and, whilst it is a great pity that costs were incurred on this exercise, I do not think this is an obvious case for blaming one party or the other and I do not propose to make any adjustments to my asset schedule on the basis of the costs incurred on this argument.[23]Having made these determinations, I am now able to set out my assessment of the assets and debts available for distribution in this case. The situation can be summarised as follows:- ASSETS/DEBTS 24. Joint Family home This figure is based on an agreed value of £1,850,000 less the outstanding mortgage of £561,707 less 3% notional sale costs = £1,232,793 1,232,793 Cash in joint bank accounts 828,509 Joint Investment Funds 875,052 Joint Cash Management Account 3,586 Cash in safe in family home 12,664 H’s expenses reimbursement to be paid to joint account 19,693 Family motor car 15,000 Joint Credit Card debt -11,443 Money for vouchers owed to W’s parents -9,600 TOTAL 2,966,254 25. Wife Cash in sole bank accounts 1,003 CGT on Joint Investment Funds -20,771 Investments in sole name 386,609 Loan Facility 820,711 Tax on Loan Facility -190,116 Sports Club Loan 15,203 Loan to friend 2,100 Cash 942 Credit Card debt -21 Outstanding Legal Costs This figure is based on a total of incurred fees of £243,904 less a total of fees paid of £235,219 = £8,685 -8,685 SIPP CE 433,125 TOTAL 1,440,100 26. Husband 50% interest in H’s parent’s home This figure is based on an agreed value of £688,409 less 3% notional sale costs x 50% = £333,878. This interest is not realisable during the lifetimes of H’s parent (who is aged 75) and his second spouse (who is aged 68). 333,878 Cash in sole bank accounts 270,918 CGT on joint Investment Funds -26,349 Investments in sole name 2,138,538a. Vested RSUs less CGT Awarded up to January 2024 421,119b. Unvested RSUs less Tax Awarded on 16th January 2025 229,648c. Unvested RSUs less Tax Awarded on 17th January 2024 185,115d. Unvested RSUs less Tax Awarded on 18th January 2023 122,246e. Unvested RSUs less Tax Awarded on 19th January 2022 128,576 Start-up investment Fund 1 24,556 Start-up investment Fund 2 42,970 50% x Start-up investment 1 94,548 50% x Start-up Investment 2 45,204 50% x Start-up investment 3 0 50% x Start-up investment 4 6,853 Private Equity Investment Fund (PEIF) less tax 128,024 Outstanding tax bill on disposal of shares -47,068 Outstanding tax bill on Dividends -38,705 Outstanding Tax bill on sales of investments -16,096 Monies due to H’s father (apartment loan interest) Asserted by H to be a debt of £71,750. Found by the court to be zero. 0 Monies due to H’s father (house loan) Asserted by H to be a debt of £79,315. Found by the court to be zero (indeed conceded by H in submissions) 0 Monies due to H’s father (interest on house loan) Asserted by H to be a debt of £22,478. Found by the court to be zero. 0 Monies due to H’s father (sale of the buy-to-let property) -83,216 Monies due to H’s father (interest on sale of the buy-to-let property) Asserted by H to be a debt of £6,533. Found by the court to be zero. 0 Monies due to H’s father (interest on Investment Project) Asserted by H to be a debt of £6,891. Found by the court to be zero. 0 Outstanding Legal Costs This figure is based on a total of incurred fees of £489,433, all paid 0 SIPP CE 393,629 Corporate Pension CE 270,747 TOTAL 4,625,135

ASSETS/DEBTS

[24]I turn now to the sharing principle. As a starting point in the division of capital after a long marriage it is useful to observe that fairness and equality usually ride hand in hand and that (save when an asset can properly be regarded as non-matrimonial property) the court should be slow to go down the road of identifying and analysing and weighing different contributions made to the marriage.[25]In the words of Lord Nicholls in White v White [2000] UKHL 54:- “…a judge would always be well advised to check his tentative views against the yardstick of equality of division. As a general guide, equality should be departed from only if, and to the extent that, there is good reason for doing so. The need to consider and articulate reasons for departing from equality would help the parties and the court to focus on the need to ensure the absence of discrimination”. and in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24:- "This 'equal sharing' principle derives from the basic concept of equality permeating a marriage as understood today. Marriage, it is often said, is a partnership of equals…The parties commit themselves to sharing their lives. They live and work together. When their partnership ends each is entitled to an equal share of the assets of the partnership, unless there is a good reason to the contrary. Fairness requires no less. But I emphasise the qualifying phrase:
'unless there is good reason to the contrary'
. The yardstick of equality is to be applied as an aid, not a rule."

and in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24:-

[26]In the words of Mostyn J in JL v SL [2015] EWHC 360:- “Matrimonial property is the property which the parties have built up by their joint (but inevitably different) efforts during the span of their partnership. It should be divided equally. This principle is reflected in statutory systems in other jurisdictions. It resonates with moral and philosophical values. It promotes equality and banishes discrimination.”[27]In this case, where the total assets exceed £9,000,000 after a fairly long marriage, the sharing principle is the appropriate starting point for my deliberations on the division of capital.[28]In order to assess where an equal division of assets would take us, I need next to consider the various arguments raised by Mr Southgate as to what assets should be excluded from the sharing exercise on the basis that they should be treated as non-matrimonial property. It is common ground that the husband’s father’s home should be excluded from the sharing exercise – it is plainly non-matrimonial property and this is conceded. Beyond that, the wife says that all the assets should be shared; but the husband says otherwise and Mr Southgate’s opening note (in this area repeated in closing) includes the following passage:- “The amounts H seeks to exclude from sharing are:-(i) 598,497 representing the proceeds of sale of his bachelor flat (but see H’s position in relation to using this sum as a school fees fund);(ii) £179,147 inherited from his parent under their Will;(iii) £186,944 in respect of his pre-marital pension contributions;(iv) his post separation (the parties having separated in August 2023) income and earnings comprising:- (a) £141,350 in monthly salary payments since June 2024; (b) £97,521 ($126,318) of “effectively a pre-paid bonus driven by regulatory framework” since June 2024; (c) a bonus awarded on 16.1.25 in the sum of £63,498 ($82,547) attributable to H’s work January – December 2024 (d) £210,718 representing unvested shares in H’s employer awarded to H on 16 January 2025 by way of bonus attributable to H’s work from January – December 2024 (e) H’s severance payment from H’s employer. This is a total of £1,477,675, plus the severance payment, not as yet received, but H’s employer have offered £126,950.” (i) 598,497 representing the proceeds of sale of his bachelor flat (but see H’s position in relation to using this sum as a school fees fund); (ii) £179,147 inherited from his parent under their Will; (iii) £186,944 in respect of his pre-marital pension contributions; (iv) his post separation (the parties having separated in August 2023) income and earnings comprising:- (a) £141,350 in monthly salary payments since June 2024; (b) £97,521 ($126,318) of “effectively a pre-paid bonus driven by regulatory framework” since June 2024; (c) a bonus awarded on 16.1.25 in the sum of £63,498 ($82,547) attributable to H’s work January – December 2024 (d) £210,718 representing unvested shares in H’s employer awarded to H on 16 January 2025 by way of bonus attributable to H’s work from January – December 2024 (e) H’s severance payment from H’s employer.[29]I start with the husband’s argument that the sale proceeds of his London flat should be treated as non-matrimonial property. Most of the facts on this are common ground:-(i) The husband purchased this flat in 2007 with the assistance of a loan from his parents.(ii) This property became the first family home when the parties commenced cohabitation in April 2009, but remained in the husband’s sole ownership.(iii) In December 2011, the parties moved to their newly acquired family home, held in their joint names. The purchase price was £1,220,000 plus purchase costs of approximately £100,000. The parties took out a joint mortgage of £855,999 to fund the purchase. In addition the wife contributed cash of £220,000 and the husband contributed cash of £98,491 and also borrowed £145,508 from his parents.(iv) On 10th April 2012, the husband completed on the sale of his London flat and received net sale proceeds of £598,497. From the proceeds of sale, on the same day he repaid the loan to his parents with interest, making a payment to them of £146,711 and transferred the majority of the remaining monies (£450,000) into a Barclays account which was in the joint names of the parties and appears to have been a mortgage offset account. The bundle contains a statement for this joint account for November 2012 (at which point the £450,000 can be seen to have been mingled with another £250,000 from somewhere else) but no documentary evidence has been produced to show what happened to it thereafter until the disclosure of the same account in the current proceedings. The wife’s Form E records that as at 4th February 2024 there was £390,100 in the account. The husband’s Form E records there was £350,000 remaining in it as at 6th April 2024 and the husband’s Form E comments “This is [my wife] and my joint offset account. Ordinarily, we do not use this account, however we have recently had to dip into this account and transfer money to our joint current account”. As of now, the Form ES2 shows there is £300,000 in the account.[30]I have reached the clear conclusion that applying the law on how matrimonial and non-matrimonial property should be identified, and the established concept of ‘matrimonialisation’, as it has been developed and described in cases such as K v L [2011] EWCA Civ 550 and Standish v Standish [2024] EWCA Civ 567 I am cognisant of the fact that, as I write this judgment, submissions are being heard in the Supreme Court on the Standish case, but it would be surprising if the outcome of that appeal changed my task in the present case. , the proceeds of sale of the husband’s London flat in my view falls clearly into the matrimonial property category, i.e. it has become matrimonialised. It emanated from the London flat which was itself a family home for 2.5 years. Some of its proceeds went into the purchase of the new family home. The remainder was paid into a joint offset account and mingled with other assets and, as far as the evidence appears, used for general family purposes (at least in substantial part). If it is the husband’s case that it is been ring-fenced and spent on assets now in his sole name he has plainly not established that on a balance of probabilities. I therefore do not propose to make any adjustment on the basis of the husband’s contributions in relation to this sum.[31]I find myself more persuaded that I should make an adjustment on the basis of the husband’s inheritance of £179,147 received from his mother after her death in 2015 and “absorbed into my savings”. Although the husband has not provided any clear evidence of the ring-fencing of this sum in his sole name, he was not effectively challenged on what he had said about this and I think it is likely, on a balance of probabilities, that he did receive this sum and that it was used by him for an investment or savings in his sole name and can properly recognised as non-matrimonial property and I shall accordingly accept his case on this in considering the wife’s sharing claim.[32]Likewise, the husband has a convincing argument that a portion of his pensions represent non-matrimonial property. In essence, the PODE report concludes that a division of pensions based on what would produce equal income for the parties at their respective retirement ages would be 22.9% of the husband’s Fidelity SIPP pension if all pensions are included or 0.3% (for all practical purposes zero) if pensions accrued prior to April 2009 are excluded from the calculation. In other words, following the recommendations of the second report of the Pensions Advisory Group and case law such as SP v AL [2024] EWFC 72 B, any pension sharing order in this case would have to be based on a needs argument.[33]The remaining arguments pursued by the husband in this area relate to the income and bonuses and RSU awards received by the husband since the separation. There was little or no evidence heard at the trial to persuade me that the date of separation should be treated by me as other than the date on which the wife moved out of the family home, i.e. 30th September 2023. This final hearing began on 28th April 2025, some 18 months or so later. In the period between 1st October 2023 and 28th April 2025, the husband has continued to receive a large income, substantial cash bonuses and two RSU awards from his work (one in January 2024 and one in January 2025). He continued transferring his monthly basic salary (c £14,000 per month) into the joint account to meet current family spending commitments up to and including the October 2024 payment. Thereafter he has paid nothing into the joint account, whilst the wife has continued to pay her monthly salary payments (albeit much smaller) into the joint account from which most household expenses have been met. All his monthly cash bonuses since separation (and indeed before) have been paid into a sole account.[34]Mr Tatton-Bennett has sought to persuade me that I should take a broad view of this and, in view of the fairly rapid progress from separation to final hearing I should not make any adjustments. He argues that I should follow the sentiment and guidance of Mostyn J in E v L [2021] EWFC 60 when he said:- “Finally, I turn to the question of the point in time when the clock stops for the purposes of calculating the acquest. In Cowan v Cowan [2001] EWCA Civ 679, Thorpe LJ stated:
‘The assessment of assets must be at the date of trial or appeal. The language of the statute requires that. Exceptions to that rule are rare and probably confined to cases where one party has deliberately or recklessly wasted assets in anticipation of trial. In this case the reality is that the husband traded his wife’s unascertained share as well as his own between separation and trial, particularly committing those undivided shares to the investment in Baco. The wife’s share went on risk and she is plainly entitled to what in the event has proved to be a substantial profit.’
At paras [132]–[135] Mance LJ agreed, pointing out that to take the date of trial as the end date was traditional. It is true that in Miller Lord Mance (as he had become) at para [174] appeared to change his mind and suggested that it was natural to look at the period until separation. However, this was a passing comment. The subject was not addressed by any of the other members of the Committee. In my view there are already in this field too many uncertainties and subjective variables. The law needs to be transparent, accessible, readily comprehensible and should propound simple and straightforward principles. In my experience convention and tradition dictate that save in cases where there has been undue delay between the separation and the placing of the matter for trial before the court, the end date for the purposes of calculation of the acquest should be the date of trial. This rule of thumb should apply forcefully to assets in place at the point of separation which have shifted in value between then and trial. For new assets, such as earnings made during separation, I would apply the yardstick in Rossi v Rossi [2006] EWHC 1482, at [24.4] where I stated: ‘I would not allow a post-separation bonus to be classed as non-matrimonial unless it related to a period which commenced at least 12 months after the separation’”[35]Mr Southgate invites me to follow the approach of Roberts J in C v C [2018] EWHC 3186 in which she emphasised, post Waggott v Waggott [2018] EWCA Civ 727, the proposition that the sharing of income ends at the date of separation such that identifiable monies received since the separation or assets or identifiable investments purchased with such monies should be excluded from the sharing exercise. In her words:- “On the basis of the decision in Waggott v Waggott [2018] EWCA Civ 727, Mr Chamberlayne QC’s primary submission is that post-separation earnings must now be treated as falling outside any definition of ‘matrimonial property’. He does not seek to say that such earnings, or the assets into which they can be traced, are not susceptible to the discretionary jurisdiction exercised through the s 25 ‘portal’. However, if they are to be ‘invaded’ and shared in whatever proportions are deemed appropriate, there has to be a sound and principled reason for that step. In circumstances where, as here, he contends that the wife’s needs will be amply met even if post-separation earnings are excluded from the ambit of her sharing claims, there is no justification for enlarging her entitlement above and beyond the point of separation. Waggott, he says, has removed the need to resort to arbitrary or pragmatically convenient approaches such as a 12-month approach to the sharing of bonuses, or a reducing ‘run off’ approach, or even a pragmatic ‘rounding up’ approach. Each of these solutions, deployed by different judges in previous cases, are unnecessary in the light of the clear statement of principle explained by Moylan LJ in Waggott. [35] Whilst recording his support for pragmatism where the goal was an agreed resolution of litigation, the learned judge in Waggott posed a simple question: do those earlier cases of Rossi v Rossi [2006] EWHC 1482 (Fam), [2007] 1 FLR 790, HvH[2007] EWHC 459 (Fam), [2007] 2 FLR 548 and CR v CR [2007] EWHC 3206 (Fam), [2008] 1 FLR 323 support the proposition that an earning capacity is capable of being a matrimonial asset as a result of which the applicant spouse has an entitlement to share in its product (here, the post-separation earnings since the point of separation)? [36] His Lordship’s answer to that question insofar as it relates to sharing in relation to the products of an earning capacity comes in para [122]: ‘the clear answer is that it is not’ … The question then arises, are the post-separation earnings in this case ‘future resources’ generated by an earning capacity in which the wife has no entitlement to share as a matter of principle once the marital partnership has come to an end? There is no serious challenge in this case to the proximate date of the end of that partnership. Whether it was at the end of April 2016 when the wife’s solicitors confirmed in correspondence her conclusion that the marriage had irretrievably broken down, or whether it was June when the husband physically moved out of the family home having made short-term arrangements to rent an alternative property, this was in no sense a ‘limping’ marriage. Its demise was advertised, acknowledged and implemented within a matter of weeks. Whatever regime was then put in place by the parties in relation to their mutual and ongoing contributions to their children’s welfare and the financial support of the family, it was not an ongoing marital partnership. For this reason, and absent arguments about needs and compensation, I do not accept the wife’s proposition that her ongoing contributions to the general welfare of the family matched those of the husband’s and/or gave rise to any entitlement to an equal share in the husband’s post-separation earnings. However, and it is an important caveat, that does not necessarily mean that those contributions were, or are, irrelevant as part and parcel of the over-arching circumstances of the case in terms of an assessment of needs or fairness of outcome.”[36]On closer analysis, these approaches are not necessarily inconsistent with each other. The origins of the 12-month run-off on bonuses approach advocated by Mostyn J can be seen in scenarios where there are complications involved with identifying whether an amount of money received on a particular date was the result of endeavour prior to the separation or after it or perhaps a mix of the two. Bonuses received after the separation can sometimes be wholly or partly the product of endeavour prior to the separation. In such cases the court has to make a broad assessment on the facts of the case. In other cases the withdrawal of income from the meeting of joint family expenses, particularly if it involves a change in the status quo ante, might create unfairness for the other party.[37]Applying these principles to the facts of this case, and exercising a broad discretion to achieve a fair outcome, I have decided that it would be unfair to exclude what has been saved from the husband’s monthly basic salary from the pool of assets to be shared because they were used prior to separation and indeed up to October 2024 to meet general family expenses. Unilaterally changing the status quo in November 2024, just a few months prior to a final hearing when it was impractical to set up a reinstatement hearing without incurring disproportionate costs, should not in my view be regarded as sufficient to alter that. In my view different considerations apply to the cash bonuses received since June 2024 (£97,521), the cash bonus awarded in January 2025 (£63,498) and the RSUs awarded in January 2025, which can properly be regarded as post-separation accrual only to be invaded on the basis of needs. Likewise, the severance payment yet to be received should be regarded as a post-separation accrual not susceptible to a sharing claim.[38]In terms of considering the wife’s sharing claim, therefore, I shall therefore reformulate my asset schedule by:-(i) disaggregating the pensions;(ii) removing the husband’s father’s home from the husband’s column;(iii) removing the Unvested RSUs awarded in January 2025;(iv) deducting £179,147 from the husband’s column representing his inheritance from his mother; and(v) deducting £97,521 and £63,498 from the husband’s column representing post-separation bonuses not attributable to pre-separation endeavour; but(vi) otherwise leave it as it is set out above.[39]I propose at this stage to make one more adjustment. Since it is common ground that the husband will retain the family home and that the wife, to house herself and the children with her, will reasonably need to purchase a property of similar value, i.e. £1,850,000, the wife will inevitably have some expenses which the husband will not have. She will have the legal expenses and the Stamp Duty costs of buying such a property, which I shall estimate at £150,000. In my view it is appropriate to reflect this, and to bring about an equal situation, by making a deduction from her column in that sum.[40]The reformulated asset schedule for a sharing analysis therefore looks like this. ASSETS/DEBTS (OTHER THAN PENSIONS)44. Joint Family home 1,232,793 Cash in joint bank accounts 828,509 Joint Investment Funds 875,052 Joint Cash Management Account 3,586 Cash in safe in family home 12,664 H’s expenses reimbursement to be paid to joint account 19,693 Family motor car 15,000 Joint Credit Card debt -11,443 Money for vouchers owed to W’s parents -9,600 TOTAL 2,966,25445. Wife Cash in sole bank accounts 1,003 CGT on joint Joint Investment Funds -20,771 Investments in sole name 386,609 Loan Facility 820,711 Tax on Loan Facility -190,116 Sports Club loan 15,203 Loan to friend 2,100 Cash 942 Sole Credit Card debt -21 Outstanding Legal Costs -8,685 Deduct £150,000 – see above -150,000 TOTAL 856,97546. Husband Cash in sole bank accounts 270,918 CGT on joint Joint Investment Funds -26,349 Investments in sole name 2,138,538 a. Vested RSUs less CGT 421,119 c. Unvested RSUs less Tax 185,115 d. Unvested RSUs less Tax 122,246 e. Unvested RSUs less Tax 128,576 Start-up investment Fund 1 24,556 Start-up investment Fund 2 42,970 50% x Start-up investment 1 94,548 50% x Start-up investment 2 45,204 50% x Start-up investment 3 0 50% x Start-up investment 4 6,853 Private Equity Invesment Fund (PEIF) less tax 128,024 Outstanding tax bill on disposal of shares -47,068 Outstanding tax bill on Dividends -38,705 Outstanding Tax bill on sales of Investment -16,096 Monies due to H’s father (apartment loan interest) 0 Monies due to H’s father (house loan) 0 Monies due to H’s father (interest on house loan) 0 Monies due to H’s father (the buy-to-let property) -83,216 Monies due to H’s father (interest on the buy-to-let property) 0 Monies due to H’s father (interest on investment project) 0 Outstanding Legal Costs 0 Deduct £179,147 – see above -179,147 Deduct £97,521 – see above -97,521 Deduct £63,498 – see above -63,498 TOTAL 3,057,067 PENSION ASSETS47. Wife SIPP CE 433,125 TOTAL 433,12548. Husband SIPP CE 393,629 Corporate Pension CE 270,747 TOTAL 664,376[41]On the basis of a 50% sharing claim of all the matrimonial property the wife would receive 50% x (£2,966,254 + £856,975 + £3057,067) = 50% x £6,880,296 = £3,440,148 plus her own pension funds worth £433,125, a total asset pool of £3,873,273.[42]In order to receive more than this, the wife would have to establish a need for more than £3,873,273. Can she do this? I turn to some of the other section 25 factors.[43]In relation to “the income, earning capacity…which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire” I have the following comments:-(i) In this case I am presented with two people who have experience and expertise in the highly paid world of banking but neither of them wishes to work in this field in the foreseeable future.(ii) The husband currently has a very high income, £1,285,745 per annum gross in y/e 5th April 2024 and ongoing at this level, but (on his own assessment) he is moving swiftly towards redundancy and wishes to give up this highly paid work and take life much easier for the foreseeable future, really doing little or no remunerative work. He says he is burned out. He says he has worked inhuman hours for too long with the goal of accruing sufficient capital to get off the hamster wheel of the finance world. He says he has been planning this for years and now is the time to spend his life being with his children and taking part in hobbies. He says his employer is aware of his views and, although the final redundancy deal has not been done, he has already gone too far to pull back from this. Although Mr Tatton-Bennett has invited me to be sceptical of this presentation, coming as it does at a time when it suits him not to have a large income, I did not doubt that the husband was expressing his sincere and long-held views and I accept that doing a volte face with his employer is probably not an option. Further, the likelihood of non-solicitation requirements in the contractual documents which he will have to sign to retain his RSUs will limit his opportunities for a period.(iii) The wife used to have a high income in the same field, but she says her career was interrupted by the birth of the children and then child-care responsibilities and she has been out of the finance industry since 2017 and out of any commercial type work since 2021. She says she has found an area of work which she loves and in which she is content – educating children with Special Educational Needs – and this works well alongside her commitment to her own children. She plans to carry this on a part-time and part-qualified basis for the next few years earning what she is now, c.£9,953 per annum gross, although would like to move to be a full-time qualified teacher in due course, perhaps earning £50,000 per annum gross. Although Mr Southgate has taken a tough line in cross-examination, suggesting that the wife could and should return to the finance industry at a high level, and the wife accepted that in principle she could do this, I am inclined to accept her view, rather mirroring that of the husband, that she very much does not intend to do this any time soon or at all.(iv) Time will tell whether the attraction of having more earned income might in due course overcome the wish that both parties have to take some time away from the commercial front line, but a combination of the decisions they have now made and the reality of having to care for three young children may mean this is, at least, a few years away. If that moment comes, and they are both still young and fit enough for it to happen, then I am satisfied that each of them has a good earning capacity which, if they needed more money, it would be reasonable to expect them to exploit. The husband’s current profile, as currently a senior figure with his employer, and a major figure in his industry, means that his earning capacity is likely in due course to be significantly higher than the wife’s earning capacity – though it is difficult and unnecessary for me to place any very precise figures on this.

ASSETS/DEBTS (OTHER THAN PENSIONS)

[44]In relation to the “financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future”, my focus should be on the wife’s needs since she is asking for some provision over and above a sharing claim and I have the following comments:-(i) My assessment of the wife’s needs should, in my view, take into account the standard of living that the parties jointly enjoyed during the marriage, the ages of the parties and the duration of the marriage.(ii) It is common ground that she reasonably needs a home at a similar value to that of the husband. I have already recognised that this will involve some costs of purchase.(iii) On my sharing analysis above she would be left with £3,440,148 plus her own pension funds worth £433,125, a total asset pool of £3,873,273. Once she has purchased a house, including purchase costs, for £2,000,000 she will be left with £1,440,148 plus her own pension funds worth £433,125, a capital pool to provide income for the remainder of her life of £1,873,273.(iv) In addition to that she has her future earning capacity. This could be in teaching (in which she might earn on a full-time basis on her own analysis c £50,000 per annum gross) or it could be in the commercial world in which she might earn more. I also accept Mr Southgate’s argument that there is every reason to believe that she will in due course qualify for a full state pension and also (relying on CB v KB [2019] EWFC 78) that downsizing housing and income needs in retirement represents a reasonable proposition on a needs analysis. I am also persuaded that carrying out this needs analysis in this case it is appropriate for me to exercise my discretion to expect the wife to amortise her capital, following the words of Mostyn J in CB v KB (supra): “It is pre-eminently reasonable that the wife should be required to amortise – that is to say, to spend – her Duxbury fund. Indeed, I struggle to conceive of any case where in the assessment of a claimant’s needs it could be tenably argued that it was reasonable for her not to have to spend her own money in meeting them. After all, that is what money is for”.(v) Counsel have each helpfully supplied me with a range of Capitalise calculations to illustrate their respective cases, the most helpful of which was Mr Southgate’s first calculation, which required least of the wife in terms of earning capacity and illustrated with a degree of clarity that the wife cannot properly advance a needs claim over and above the sharing claim sketched out above. A sharing claim will give her enough capital to meet her income needs on any reasonable assessment.(vi) I shall turn to the question of school fees below.(vii) It follows from the above conclusions that this is a case where a clean break should be imposed. For avoidance of doubt I am satisfied the statutory test (“whether it would be appropriate to require periodical payments to be made or secured only for such term as would in the opinion of the court be sufficient to enable the party in whose favour the order is made to adjust without undue hardship to the termination of his or her financial dependence on the other party”) is met by the capital provision which the wife is to receive within her sharing claim. I am not persuaded that any additional sum representing capitalised periodical payments is appropriate. OUTCOME[45]Having established that the fair answer in this case to the issue of capital division is to produce an outcome which, based on the wife’s sharing claim, leaves her with her own pensions plus assets worth £3,440,148 I shall consider how that is to be achieved.[46]I propose to achieve that outcome in the following way:-(i) Save as set out below, each party shall keep the assets in their sole name.(ii) The family home will be transferred to the husband with the wife removed from her mortgage covenants within, say, 6 months with a default order for sale.(iii) The cash in the joint banking accounts will be divided equally.(iv) The wife will have the Joint Investment Funds transferred to her and take over any CGT liability the husband has on its disposal.(v) The Joint Cash Management account will be transferred to the wife.(vi) The cash in the safe in the family home will be divided equally.(vii) The husband will receive the anticipated reimbursement of his expenses.(viii) The family car will be transferred to the husband.(ix) The joint credit card debt will be split equally.(x) The wife will take over the vouchers money owed to her parents.(xi) There will be Wells sharing of all the RSUs other than those granted in January 2025.(xii) The husband will retain his various start-up investments and private equity investments. I have considered the wife’s claim for Wells sharing here and decided that it is not appropriate because the values of the assets concerned are reasonably reliable and that Wells sharing them runs the risk of entwining the parties’ financial interests more than is necessary.(xiii) There will be a lump sum paid by the husband to the wife of £897,092. I see no reason why this should not be paid quickly and I propose the date of 16 July 2025 with interest in default at the court’s judgment debt rate.(xiv) There will be no pension sharing.

PENSION ASSETS

[47]By my calculations, this should produce the following outcome in relation to the matrimonial property. I am satisfied that this represents a fair outcome in all the circumstances. Wife Husband Own realisable assets 856,975 3,057,067 Family home to H 0 1,232,793 Cash in joint accounts 50:50 414,254 414,255 Joint Investment Funds to W 875,052 0 H’s Tax on Joint Investment Funds to W -26,349 26,349 Joint Cash Management Account to W 3,586 0 Cash in safe in family home 50:50 6,332 6,332 H’s expenses reimbursement to H 0 19,693 Family motor car to H 0 15,000 Joint Credit card debt 50:50 -5,722 -5,721 Money for vouchers owed to W’s parents to W -9,600 0 a. Wells sharing RSUs 210,559 -210,560 c. Wells sharing RSUs 92,558 -92,557 d. Wells sharing RSUs 61,123 -61,123 e. Wells sharing RSUs 64,288 -64,288 Lump sum H to W 897,092 -897,092 TOTAL 3,440,148 3,440,148[48]In addition the husband will continue to own the various segments of non-matrimonial property which I have deducted from the schedule, which are of course substantial.[49]I am satisfied that in terms of cash flow the wife should have sufficient to purchase a suitable home reasonably quickly and have enough cash to meet her income needs.

CHILD PERIODICAL PAYMENTS AND SCHOOL FEES

[50]The wife has, in addition to any capital order, sought an order:-(i) that the husband should pay child periodical payments at the rate of £15,000 per child per annum; and(ii) that the husband should pay the entirety of the children’s school fees.[51]The husband has suggested that there should be no child periodical payments order, indeed that there is no jurisdiction to make any child periodical payments order other than in relation to school fees. He suggests that the school fees here should accordingly be met equally and has offered to contribute half of a capital fund from which the fees would be paid over time. The husband has helpfully provided a table showing that the fees are currently just over £21,000 per term or £63,000 per year (for all three children) and that a fund of about £633,000 might fund the remainder of the school fees for the rest of the children’s education up to A levels.[52]I want first to give a view on the jurisdictional issue, upon which I have received detailed submissions from both Counsel and make the following observations:-(i) Save for the intervention of the Child Support Act 1991, the court would have power to make a child periodical payments order in favour of one parent against another parent: see Matrimonial Causes Act 1973, section 23(1)(d). Although the usual situation is that the payee is the parent with primary care of the child and the payer is the other parent there is nothing in the statute to restrict the court’s power in this way and the same is true if the parents share the care of the child exactly equally.(ii) Child Support Act 1991, sections 8(1) and 8(3), however, combine to prevent a court (save in certain specified circumstances) making a child periodical payments order where the CMS would have jurisdiction to make a maintenance assessment. FPR 2010 Rule 29.8 sets out the procedure to be followed if a court application is made which should be prevented by these sections.(iii) The CMS has no jurisdiction where one of the parents or the child are habitually resident outside the United Kingdom: see Child Support Act 1991, section 44. There is no requirement in the Act, or any established practice, for a party to obtain confirmation from the CMS that they have no jurisdiction for this reason before pursuing an application for child periodical payments through the courts.(iv) The court has jurisdiction to make a top-up child periodical payments order where the payer’s income exceeds £3,000 per week gross. There is a requirement in the Child Support Act 1991 (Section 8(6)) and an established practice (see Dickson v Rennie [2014] EWHC 4306)) for a party to obtain from the CMS a maximum income assessment before pursuing an application for child periodical payments through the courts.(v) Where the parents have an established agreement or order which clearly provides for them to have exactly equal care for a child, it is likely that any application to the CMS will engage The Child Support Maintenance Calculation Regulations 2012 (SI No 2677), regulation 50. This provides that a CMS assessment will not be made unless it is established that one parent provides “day to day care to a lesser extent” than the other. Absent this, there is no non-resident parent against whom to make an assessment and therefore no qualifying child within the meaning of Child Support Act 1991, section 3. The receipt of child benefit by one party, which in some circumstances will be significant in this context, will give way to clear “evidence to the contrary”, i.e. it will give way, ex hypothesi, to an established agreement or order which clearly provides for the parents to have exactly equal care for a child.(vi) Although the notes to the Family Court Practice (see 2024 edition at p.451) and the notes in the Dictionary of Financial Remedies (2025 edition at p.16) both identify this as a question which is thus far unanswered, there is nothing within the Child Support Act 1991, and there is no established practice of which I am aware, to suggest that there is a requirement for a party to obtain formal confirmation from the CMS that they have no jurisdiction by reason of there being no non-resident parent for the reason described above before pursuing an application for child periodical payments through the courts. In this respect, the situation is analogous to the cases where somebody is not habitually resident in the United Kingdom and is not analogous to the maximum income scenario.(vii) I have not been persuaded by Mr Southgate’s contention that Child Support Act 1991, section 8(2) is effective to oust the court’s powers in this respect. This section might apply, for example, where the quantum of the payer’s income did not justify a calculation, but does not (in my view) apply to cases where there is an absence of jurisdiction created by the fact that there is no non-resident parent.(viii) It follows from the above that my view is that in a situation where there is an established agreement or order which clearly provides for parents to have exactly equal care for a child, either party can apply to the court for a child periodical payments order and that party does not first have to make an application to the CMS. The bar on court applications provided by Child Support Act 1991, sections 8(1) and 8(3) does not apply in this scenario and the court retains its basic powers under Matrimonial Causes Act 1973, section 23(1)(d).(ix) In reaching these conclusions I am encouraged that this accords with the views on the subject expressed by the authors of Rayden & Jackson at paragraph 18.25, by James Pirrie and Michelle Counley in the Family Law Journal [2020] Fam Law 1530, by Recorder Salter in W v H [2021] EWFC B63 and by Upper Tribunal Judge Jacobs in MR v Secretary of State for Work and Pensions and LM [2018] UKUT 340. I note also that Mostyn J’s judgment in James v Seymour [2023] EWHC 844 expressly includes calculations for court orders where there is equal shared care, which adds force to the conclusions.(x) None of the above suggests that a court should make a child periodical payments order, but it has jurisdiction so to do, and may do so if the facts justify it.[53]Having established that I do have jurisdiction to make a child periodical payments order, I have considered whether I should in fact make one in the context of a case where the parties will have a reasonable level of capital to meet their needs, where the parties will be taking on an exactly equal burden of child-care and, in particular, where the husband will shortly be redundant and have little or no earned income. I have decided in the circumstances that it is not appropriate for me, at this stage anyway, to make child periodical payments orders in favour of the wife which she seeks or at all.[54]I take a slightly different view in deciding where the burden should fall in terms of meeting the children’s school fees in the future. Bearing in mind all the section 25 factors I take the view that it would be reasonable and fair to make an order which requires the husband to bear a higher share of the burden of school fees than the wife. I will therefore direct that, for the foreseeable future, he should pay three quarters of the school fees and that she should pay one quarter. I reach this conclusion for a number of reasons. As a result of my recognising that some of the husband’s capital is non-matrimonial, he will have significantly more spare capital than she will to meet these fee bills. He also (on my finding) has a higher earning capacity than she does, although it will be a matter of personal choice for him and her as to whether they respectively decide to return to the commercial fray or remain outside it.[55]Both of the above two decisions are, of course, capable of being varied if circumstances change in the future to justify a variation; but I think it is reasonably likely that these decisions will stick for the children’s respective minorities.

STEPS FROM NOW ON

[56]This is my decision and, as discussed, I invite counsel to produce a draft order which matches these conclusions. For reasons I have already partly explained, and in the context of FPR 2010 Part 28, my strong provisional view is that there should be no order as to costs, but I am willing to receive written submissions on this subject if necessary. The sending out of this judgment by email on 2nd May 2025 represents the formal handing down of the judgment for appeal period purposes. I am hoping that it will not be necessary for me to convene another hearing, but if it becomes necessary I shall do so. I consider that this judgment should be published on TNA / BAILII with appropriate anonymisations / redactions to avoid the parties being identified. I would be pleased to receive a mutually agreed draft anonymised judgment when I am sent the draft order.[57]With the approval of Peel J, and in relation to the matters discussed in paragraph 52 above, I certify that this judgment may be cited in accordance with the Practice Direction on the Citation of Authorities [2001] WLR 1001 and Guidance given by the President of the Family Division dated 24 February 2025 under the heading Citation of Authorities: Judgments of Circuit Judges and District Judges. HHJ Edward Hess Central Family Court 2 May 2025

Cited in 1 later judgment