Jolanta Cemke v Krzysztof Roland Cemke [2025] EWFC 180 (B)

[2025] EWFC 180 (B)

IN THE FAMILY COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 23 June 2025

Before

Deputy District Judge Brooks KC

Between

JOLANTA CEMKEApplicant

KRZYSZTOF ROLAND CEMKERespondent

The Applicant appeared in person for in person

Michael Hayes (instructed on a Direct Access basis) for Respondent

Hearing Hearing dates:16 and 23 June 2025

Judgment

[1]This is a reserved judgment following a financial remedies final hearing on Monday 16 June 2025. It is not a precedent – I am a Deputy District Judge and am simply applying established law to the facts. This judgment is sent to the National Archive in accordance with the President’s Publication of Judgments Practice Guidance issued on 19 June 2024.

[2]The case was heard in private. Both parties are adults and there are no minor children. There have been proceedings in open court in the past. I circulated a draft of this judgment on 18 June 2025, stating that my preliminary view, balancing the various competing interests, was that the judgment should not be anonymised. I asked the parties to indicate if they disagreed. Neither party seeks anonymity. The judgment is therefore not anonymised.

[3]Both parties are litigants in person. Mrs Cemke represented herself at this hearing. A QLR, Ms McCauley-Slowe, was appointed by the court to cross-examine Mr Cemke on her behalf. Mr Cemke was represented by Mr Hayes of counsel on a direct access basis.

[4]I will refer to the parties by the shorthand of “W” and “H”, notwithstanding that they have been divorced for 15 years. No disrespect is intended.

Parties

[5]The background facts can be stated briefly. The applicant is W. She is 52 years old. She suffers from back problems, anxiety and depression. The respondent is H. He is 50 years old and is in good health. The parties cohabited and then married in 2000, separated in May 2010 and divorced later that year (the decree absolute is dated December 2010). The parties have one adult child, who is about to begin postgraduate study.

Resources

[6]There is one relevant asset: the FMH in west London. It is held in the parties’ joint names. H severed the joint tenancy on 28 September 2010. It is therefore held as tenants in common in equal shares. It has an agreed value of £512,500. After deducting the mortgage (also in joint names) and costs of sale, the equity is £280,000. Otherwise, there are no assets of note and each party has approximately £10,000 of debt. Both work full-time. W earns c.£45,000 gross (£36,000 net) per year. H earns c.£72,000 gross per year (£52,000 net).

Open Proposals

[7]W’s open proposal is dated 26 September 2024 and is in the alternative: either(a) the FMH be transferred to H on the basis that H pays W a lump sum of £271,000. This would provide W with 97% of the equity; or

(b) The FMH be transferred to W with H to pay W £117,000. This would provide her with 141% of the equity.

[8]W’s claim is put on the basis that, between separation in 2010 and Form A in 2023, she paid c.£98,000 for rent and c.£19,000 for utilities and should be reimbursed for that expenditure. In addition, she claims £154,000, representing 50% of the equity in the FMH (based on an old valuation). At the outset of the hearing, W acknowledged that her proposal should reduce by £14,000 to reflect the current equity in the FMH. When cross-examined, she was unable to give a credible explanation about why she should receive more under option (b) than option (a). In closing submissions, W presented a third alternative: that each party receive half of the equity in the family home. I note in passing that options (a) and (b) could never result in a fair outcome. There is no justification for W receiving nearly or (or more than) the only asset in the case.

[9]H’s open proposal is dated 26 January 2025 and was updated at the beginning of the hearing. He proposes that the FMH be transferred to his sole name and that he pay a concurrent lump sum of £100,000 to W. He would procure W’s release from the mortgage. This would provide W with 36% of the equity. H relies on two factors. The first is that he asserts that his need is greater than W’s, because he needs space to store tools and materials of his trade. The second is the delay between the decree absolute in 2010 and the Form A in 2023, which he says should reduce W’s entitlement.

[10]Both parties propose a clean break in life and death.

Background

[11]The parties’ separation was acrimonious. W accused H of domestic abuse. She left the FMH with the parties’ child and had to find emergency accommodation. About 4 months later, she began to rent her current home. H was prosecuted and acquitted after a 6-day Crown Court trial. H accuses W of fabricating the allegations and of pursuing this claim as a form of abuse against him.

[12]Since the parties separated, H has continued living at the former matrimonial home (“FMH”). He has paid the mortgage on an interest-only basis, which currently costs a little less than £1,000 per month. W and the parties’ child lived in rented accommodation. Her rent currently costs c.£1,500 per month. There were lengthy Children Act proceedings between 2010 and 2016. It is H’s case that W obstructed him from having a meaningful relationship with their child. I am not in a position to determine whether or not that is true, nor is it necessary or proportionate for me to do so in order to resolve this application.

[13]W issued a Form A on 4 August 2023. The FDR was held on 4 October 2024. The parties were unable to settle and the first Final Hearing was listed on 30 January 2025, with a time estimate of 1 day. That hearing was ineffective because there was no adequate bundle and neither party’s QLR had attended. The court had directed QLRs for both parties. The court service had responded to state that only one could be appointed. That QLR appears to have been appointed for H. H had instructed direct access counsel, and the QLR had therefore been stood down.

[14]On 30 January 2025, DDJ Shelton adjourned and re-listed the Final Hearing to today, and gave directions. Those included:(a) A direction for the applicant to prepare, file and serve a PD27A compliant bundle limited to 400 pages;

(b) A recital that “The Court took a view that, this not being a “conduct” case, nor a case for periodical payments or a Pension Sharing Order, but the only dispute being as to interests in the Former Matrimonial Home, that one day was an adequate time estimate for the Final Hearing, but the delays above referred to had made it improbable that the Hearing could be completed today in the time allocated.”

(d) QLRs were appointed for today.

The Hearing

[15]When I read into the case on the portal, there was no bundle. I received a position statement from Mr Hayes on the morning of the hearing. I was presented with a supplemental bundle prepared by the respondent that runs to 237 pages. Mr Hayes’ Note referred to the bundle prepared by the applicant for the 30 January 2025 hearing. The applicant confirmed to my usher that she had sent the bundle to Harlow (where litigants in person have to send documents for uploading to the portal) over a week before the hearing. A copy was emailed to the court on the morning of the hearing. It runs to 477 pages.

[16]Two QLRs attended court, though H was again represented by direct access counsel. I discharged H’s QLR at 10am. W’s QLR had been provided with only 44 pages and needed time to read the necessary material.

[17]I took the view that it was appropriate to grasp the nettle and deal with the Final Hearing today. It appeared that the issues were limited and capable of resolution. I found that adjourning the case again would be an inappropriate use of the court’s increasingly limited resources.

[18]I called both parties into court at 10am. I explained that I could not possibly read over 700 pages in the limited time available to me. Both parties agreed to the hearing proceeding. Neither sought another adjournment. I also refused permission for the applicant to lodge a 59-page position statement, which had apparently been emailed to Harlow with the bundle, but which had not been sent to me. I already have the benefit of a Form E, s.25 statement and further statement from each party. A skeleton argument for a Final Hearing in the FRC below High Court level must be limited to 15 pages. Litigants in person are subject to the same rules as represented parties.

[19]The parties agreed that the issues were limited to:(1) H’s earning capacity, which W contended that she had not seen any evidence to corroborate.

(2) H’s mortgage capacity. H contended that he could borrow £339,000. W argued that H’s ‘offer in principle’ from a bank was not the same as his mortgage capacity and that his mortgage capacity was the same as hers: £286,000.

(3) W’s housing needs. She put them at £350,000 plus costs of purchase. H put them at £327,500 plus costs of purchase.

(4) H’s housing needs. He put them at £507,500 plus costs of purchase. W put them at £350,000 plus costs of purchase (the same as her own need).

(5) The reasons for the delay between decree absolute in 2010 and Form A in 2023.

(6) Whether the FMH was in negative equity at the date of separation.

(7) Whether H had repaid what he asserts were marital debts of £50,000 between separation and the date of this hearing.

(8) Whether H had paid for capital expenditure on the FMH since separation, including by replacing windows.

(9) It was agreed that H has paid the mortgage (and arrears) since the date of separation. There was an issue about whether the borrowings secured by the mortgage had reduced since separation.

(10) Whether W had (as she claimed) paid £98,000 in rent between 2010 and 2023.

(11) Whether W had paid £19,164 in utility bills between 2010 and 2023.

[20]For the avoidance of doubt, neither party contended that the other’s conduct was relevant to the outcome of the case.

[21]I adjourned the hearing to 11.30am to enable myself, counsel and the QLR to read the remainder of the relevant documents in the bundles. It transpired that the main bundle contained all of the necessary documents, and so it was unnecessary to refer to the supplemental bundle. Both parties gave evidence under oath. The hearing concluded at 4pm. I am satisfied that both parties were able to put forward the evidence and arguments that they needed to advance, and that both had a fair hearing. I was unable to give judgment during the court’s working day, and so reserved judgment.

Evidence

[22]I have made allowance for the fact that English is neither party’s first language.

[23]I found that W was genuine when giving evidence about her housing need and mortgage capacity. However, I found much of the rest of W’s evidence to be tainted by the way in which she perceives H to have treated her. She told me that she had been left on the street when the parties separated, that she alone brought up their child, and that H had only paid child maintenance of £8 per week. I found some of her evidence unsatisfactory. She did not accept that H had provided evidence of his income, when it was demonstrated that he had done so. W is highly suspicious of H and, in her evidence, accused him of hiding money from the court and of renting rooms at the FMH and hiding that rental income (or the savings from that income) from the court. She had no evidence to substantiate either allegation, both of which were made for the first time at this hearing. When cross-examined, H denied both allegations. I therefore reject W’s allegations. I also find it unlikely that H would have been able to save significant funds whilst, at the same time, being in debt.

[24]I found H’s evidence to be more straightforward. He had provided corroboratory documentary evidence to support most of his contentions, even when some evidence was nearly 20 years old. However, I found that aspects H’s evidence were tainted by his feelings about how he perceived W to have treated him. For example, when asked how he had expected W to afford her own home after they separated and also to continue to pay half of the mortgage, he dissembled.

[25]I will deal with the relevant evidence when setting out my findings below. I have made my factual findings on the balance of probabilities. In light of my assessment of both parties as witnesses, I have relied most heavily on contemporaneous documentary evidence where it is available, but have also taken the parties’ oral evidence into account.

The Law

[26]In terms of the general approach to financial remedy applications, Mr Hayes quoted the following well-known passage from the judgment of Peel J in WC v HC

[2022] EWFC 22

[2022] 4 WLR 65

[2022] 2 FLR 1110

“21. 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 husband and wife 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 20111 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”

. A number of other cases have endorsed the utility of setting the standard of living as a benchmark which is relevant to the assessment of needs: for example, G v G

[2012] 2 FLR 48

and BD v FD

[2017] 1 FLR 1420

. (xv) That said, standard of living is not an immutable guide. Each case is fact specific. As Mostyn J said in FF v KF

[2017] EWHC 1093

at [18]; “The main drivers in the discretionary exercise are the scale of the payer’s wealth, the length of the marriage, the applicant’s age and health, and the standard of living, although the latter factor cannot be allowed to dominate the exercise”. (xvi) I would add that the source of the wealth is also relevant to needs. If it is substantially non-marital, then in my judgment it would be unfair not to weigh that factor in the balance. Mostyn J made a similar observation in N v F

[2011] 2 FLR 533

at [17-19].” “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)”. “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.” “The main drivers in the discretionary exercise are the scale of the payer’s wealth, the length of the marriage, the applicant’s age and health, and the standard of living, although the latter factor cannot be allowed to dominate the exercise”.

[27]On the topic of delay, Mr Hayes referred to D v W (Application for Financial Provision Effect of Delay) [1983] Lexis Citation 1357, [1984] Fam Law 152. In that case, the wife had left the family home and moved to live with her mother, who was a secure tenant in local authority accommodation. The parties’ two children had initially lived with the husband but later moved to live with the wife. 6 years after the divorce, the wife applied for a property adjustment order. The wife had another child from a new relationship. The husband was living in the former matrimonial home with his new wife and their baby, who had suffered from a brain injury. The relevant passage from Booth J’s judgment is below:

“There are certain detrimental consequences of delay. The first is that delay engenders bitterness and hostility between the parties which is detrimental to the whole family and in particular to any children of the family. The husband in this case is aggrieved at the attack that is now made upon the home in which he has been living for the past ten years. The wife on the other hand feels deprived of her money and of her right to live there. Secondly, the delay inevitably increases costs. It leads to a multiplicity of affidavits which are filed in order to deal with the ever-changing position of each of the parties. Inevitably it leads to the exchange of correspondence over a protracted period between solicitors, and no doubt also leads to the attendance of the parties upon their solicitors. All those matters add up in costs. Further, with the change in property valuation, and with inflation as it is in our present economic situation, as well as the changes in the parties' own situations and the commitments that they take upon themselves, the whole case can be materially altered; and the ability of the parties to cope with any orders that the Court might otherwise properly have made upon the merits of the case may be put in jeopardy. Indeed, delay can put the Court in the simple position of not being able to do justice between the parties according to the merits of the case. Unless it can be clearly shown that one party bears the greater responsibility for the length of delay than does the other, the Court may be left with no alternative but to make an order which does not reflect the merits. The responsibility for the delay in this case rests to a certain extent with both parties. The husband, after the custody order of November 1977, paid scant regard to orders of the Court. He adopted a recalcitrant attitude towards his wife, bitterly resenting the fact that she had obtained the custody of the children. He had then no incentive whatever to proceed with due diligence towards a final hearing of the property and financial applications. It was in the wife's interests to proceed with diligence, and she simply did not do so. Despite the valiant efforts of Mr Pointer to the contrary, I am bound to find that on her part -- and whether it be upon her part or whether it be upon her legal advisers from time to time, I know not and cannot judge -- there was delay in prosecuting this application. It was, as I have said, a straightforward, simple case. The Court required a minimum of documents. The essential thing was to bring it before the Court for hearing. The Court assisted on no less than three occasions with clear directions to achieve just that simple end, and those directions were ignored. The result is that the Court cannot now make an order which reflects the merits of the case… I have come to the conclusion that the husband in the circumstances must find one way or another -- and it will be difficult for him to do so -- the sum of £2,500, but that over and above that, he should not be required to pay any capital at all, either in respect of a lump sum or in respect of the arrears of maintenance. I will discuss with Counsel in Chambers how best that payment for £2,500 may be expressed and implemented. I am well aware that to any onlooker, this must seem an extraordinary situation. The wife who has been a hardworking wife and a good mother to the two children, is faced with the loss of her half share of a property which on any view must be worth £10,000 to her and £14,000 if I ignore the question of costs, for a mere sum of £2,500 when she is already owed by the husband the sum of £2,000. But that gives point to what I said earlier in my judgment, that I find that I am in an impossible situation when it comes to dealing with the merits of this case. Events have overtaken the merits, and the Court now cannot do proper justice to this wife. It is a matter in which I have the utmost sympathy for her, and which I much regret, but it does point to the absolute necessity to proceed with all due expedition in financial applications.”

[28]I have also considered other authorities on this point:(a) In Rossi v Rossi

[2006] EWHC 1482 (Fam)

[2007] 1 FLR 790

, Mostyn J considered the previous authorities (including D v W). After noting (at §31) that there is no limitation period for launching a financial remedies claim (beyond death and remarriage), Mostyn J summarised the position as follows: “[32] While of course no rigid rule can be expressed for the infinite variety of facts that arise in ancillary relief cases, I would have thought, generally speaking, that it would be very difficult for a party to be allowed successfully to prosecute an ancillary relief claim initiated more than 6 years after the date of the petition for divorce, unless there was a very good reason for the delay. I agree whole-heartedly with the statement of Wood J in Chambers, at 13, that: ‘Where a marriage is irretrievably broken down, the parties are to be encouraged to deal with all outstanding issues as reasonably expeditiously and succinctly as possible.’” ‘Where a marriage is irretrievably broken down, the parties are to be encouraged to deal with all outstanding issues as reasonably expeditiously and succinctly as possible.’”

(b) In Wyatt v Vince

, [2015] 1 FCR 566, the Supreme Court had to consider the Family Court’s powers to give summary judgment and/or strike out a claim. The wife had brought a claim for financial provision 27 years after the parties separated. The parties had only lived together for 2 years and had been penniless at the point of separation. At the time the wife brought her application, the husband’s businesses were worth millions of pounds. Lord Wilson, giving the unanimous judgment of the court, stated: “[31]… the wife's delay in bringing the application appears to be inordinate. She can explain the first 13 years of it… But there is no explanation for much of the more recent delay. [32] Consistently with the potentially life-long obligations which attend a marriage, there is no time limit for seeking orders for financial provision or property adjustment for the benefit of a spouse following divorce. Sections 23(1) and 24(1) of the 1973 Act provide that such orders may be made on granting a decree of divorce 'or at any time thereafter'. Yet there is a prominent strain of public policy hostile to forensic delay. The court will look critically at explanations for it; and, even irrespective of its effect upon the respondent, will be likely, by reason of it and subject to the potency of other factors, to reduce or even to eliminate its provision for the applicant. Nevertheless it remains important to address its effect upon the respondent. In some cases, albeit not in the present, a respondent can show that he has assumed financial obligations or otherwise arranged his financial affairs in the belief that the applicant would make no claim against him and that he has done so in a way which, even if it were possible, it would not be reasonable for him to put into reverse. Sometimes, instead, he can point to factual issues of which the dimming of memories or the disappearance of witnesses over the period of the delay no longer permits accurate determination... [33] Confronted by the difficulties identified…above, what might the wife assert so as to carry her application forward to possible success?... In order to sustain a case of need, at any rate if made after many years of separation, a wife must show not only that the need exists but that it has been generated by her relationship with her husband: see Miller v Miller, McFarlane v McFarlane

[2006] UKHL 24

[2006] 3 All ER 1

[2006] 2 AC 618

at [138] (Lady Hale)…It is not at this stage clear to me that the wife will be able to sustain her claim on the basis of need. [34] But the wife has a point which may prove to be much more powerful... In the discharge of its duty under s 25 of the 1973 Act the court will be required, by sub-s (2)(f), to have regard to 'the contributions which each of the parties has made … to the welfare of the family, including any contribution by looking after the home or caring for the family'. Such contributions are not limited to those made prior to the separation or even during the marriage. The wife strongly relies on: (a) her care of Dane from 1985 to 2001; (b) her care of Emily from 1984 to 1994, from 1995 to her becoming an adult in 1997, and perhaps in the light of her difficulties even thereafter;

(c) the absence of any significant financial or other contribution on the part of the husband to their care during those years; and

(d) the conditions of poverty in which she was constrained to provide such care to Dane and Emily during those years. The wife suggests that it is no answer to this part of her case for the husband to point to his inability to make significant payments for the children for most of those years, as recognised by the justices in 1992 and by the agency in 1997. The husband (so she contends) mischaracterises her case as one in which she seeks either to investigate the amount of child support that he should have paid during those years or indirectly to appeal against, for example, the determination of the agency in 1997. Her case is no more than that, for whatever reason, the heavy burden fell upon her and, in effect, upon her alone.” (a) her care of Dane from 1985 to 2001; (b) her care of Emily from 1984 to 1994, from 1995 to her becoming an adult in 1997, and perhaps in the light of her difficulties even thereafter; (c) the absence of any significant financial or other contribution on the part of the husband to their care during those years; and (d) the conditions of poverty in which she was constrained to provide such care to Dane and Emily during those years. The parties eventually settled on the basis that the husband would pay the wife £300,000. There is debate about whether this was on the basis of meeting need or on the basis of compensation for her post-separation contributions (see Cayford KC, Calhaem and Geffin: Vindicating Post Separation Contributions: Wyatt v Vince [2017] Fam Law 59). Given that this was a settlement, I cannot reach any safe conclusions either way. (c). Briers v Briers

[2017] EWCA Civ 15

. In that case, the parties had separated in 2002 and decree absolute was pronounced in 2005. Between 2006 and 2008, the husband paid £150,000 to the wife, the wife became the sole owner of the matrimonial home and the wife transferred her shares in the business to the husband. In 2013, the wife later applied for financial remedies. The judge at first instance held that there had not been a full and final settlement and directed the husband to pay a further £1,600,000 to the wife and to transfer 25% of his pension to her. The Court of Appeal dismissed the appeal, primarily because it had been open to the judge to make the findings and decision that he did (§8). Sir Ernest Ryder, Senior President, dealt with delay at §22: “The judge's subsequent treatment of the impact of delay was a textbook exercise. He did not accept that a delayed application requires an applicant to begin from a position where the burden of justifying any distributive remedy is on the applicant so that s/he receives nothing unless it can be justified. That hypothesis carries with it an elision of the concepts of entitlement sharing and needs provision which would be contrary to authority. In any event, that is not what was anticipated in Wyatt v Vince. The exercise to be conducted by the court is an inquisitorial exercise using judgment. Just because an application is delayed, even severely delayed, does not have the consequence that the court's function on an application for financial remedy is abrogated or curtailed. Delay, its explanation and effect, is an additional factor.” (d). A v B (Financial Remedies) (No 2)

[2019] 1 FLR 17

is an example of a claim failing because of delay. Baker J (as he then was) found that the reason for the delay was that the parties had reached an informal agreement, which was fair, and that each was satisfied with that agreement. That agreement was a significant factor to consider in any subsequent claim. The husband had fallen into difficulties but the wife had voluntarily supported him. Baker J held that it would not be reasonable to expect the wife to meet the husband’s needs – he had remarried and his new wife had a property in which they could reasonably live. The wife had arranged her finances on the assumption that the husband would not and could not make any claim against her. The husband’s claim was dismissed. (e). HAT v LAT

[2024] 1 FLR 755

is a case about interim orders. Having reviewed the case law, Peel J helpfully summarised the position: [28] Accordingly, in my judgment: (i) delay in bringing a claim for financial remedies is not by itself a jurisdictional or procedural bar to making a claim; (ii) delay does not automatically, on the merits, disentitle the applicant to financial relief, but it will be a factor (potentially a highly material one) when weighing up the s 25 criteria; (iii) delay does not prevent the court from making interim orders, albeit I accept I should tread carefully and consider, in the exercise of my discretion, whether the claim has prospects of success, or is so spurious that there is no justification on the merits for the making of an interim order.

My Findings

[29]I will deal with the disputed issues in turn:(1) H’s earning capacity. H currently earns £72,000 gross per year. He may be able to do a modest amount of freelance work in addition to that, but I accept his evidence that such work will be nominal.

(2) Mortgage capacities. H has provided evidence that he can borrow up to £339,000. There is no reason for me to go behind that evidence. H earns more than W, and so it makes sense that he can borrow more than the £286,000 that she is able to borrow. On a 17-year term at an interest rate of 4.5%, H’s mortgage would cost £2,380 per month. W’s mortgage, over a 15-year term, would cost £2,187 per month.

(3) W’s housing needs. I accept W’s evidence that she needs two bedrooms. I do not find that she needs a house rather than a flat. I was taken to several particulars of properties on the market for between £319,950 and £350,000. I note that all of those properties, even those put forward by W, are flats or maisonettes. There is little to choose between them – they are of similar size and are in a similar area. Having considered all of the particulars, I find that W will need a housing fund of £350,000, inclusive of stamp duty and costs of purchase.

(4) H’s housing needs. I find that H’s need is the same as W’s, namely a two-bedroom flat within the area where he currently lives. I do not accept H’s evidence that he requires an extra bedroom to store his tools and materials. He has sufficient income to be able to rent storage if required, or he can store them in his spare bedroom. I therefore find that his need would also be met with a housing fund of £350,000.

(5) Reasons for delay and the consequences of that delay. (a) The parties separated suddenly and, having left, W had to find emergency accommodation before renting her current home. H must have been aware that W and their child would need to rent somewhere and that W’s ability to pay that rent would be constrained. As stated above, when cross-examined about this topic, H did not answer this question directly, instead focusing on his own position, which included paying the entire mortgage on the family home rather than half. W could not reasonably afford to pay half of the mortgage on the FMH and also her rent. (b) At the date of separation, and after allowing for costs of sale, the property had nil equity or modest negative equity at the date of separation. I take that from the voluntary Forms E that both parties swore on 15 February 2012. (c) There were mortgage arrears, but this began after separation and because H had not paid the entire mortgage interest instalments; rather, he had paid only half. After possession proceedings were launched, H paid those arrears. (d) I accept H’s assertion that W was ambivalent about the FMH when the possession proceedings were brought. She did not engage with those proceedings. However, she was not living there and had her own rent to pay. (e) The criminal proceedings were clearly difficult for both parties, but they alone do not explain the delay. The parties exchanged Forms E on a voluntary basis. There were protracted private law children proceedings, which ran until 2016. W was legally aided. H was acting in person. H took me to a selection of letters that he sent to W’s then solicitors, Blavo & Co, between January and July 2012. I do not have the full run of correspondence. On 11 January 2012, Blavo & Co asked H for his proposals and noted that H was still waiting for a proposal from W. H threatened to report Blavo & Co to the SRA for failing to respond about financial matters and abusing the process. He later proposed that the FMH be transferred to his sole name on the basis that he would pay the family’s debts. He never received a reply, despite writing chasing letters throughout the year. In his oral evidence, H stated that Blavo & Co did not represent W in financial matters. I have not seen any evidence about the extent of their retainer. (f) It was open to both parties to make an application for financial remedies between 2010 and 2023. Neither party did so. That was more to H’s benefit than to W’s. W told me that she did not consider making an application because she could not afford legal advice and it was not until her son raised the prospect that she felt that she should bring the application. I note that she did not pay for legal advice at any stage. She could not offer any compelling reason for the delay, but I find that she never made any representation to H that she would not bring a claim. In contrast to A v B (No 2), H did not arrange his finances on an assumption that W would never bring a claim against him. He always viewed W as obstructive and H therefore avoided this particular confrontation. H was aware that matters had not been resolved. He asked W to agree to a remortgage in the interim period, but she did not agree. The current mortgage is therefore the same product as the original mortgage. (g) The consequence of the delay is that H has lived in the FMH whereas W has rented. H has had the benefit of living in a property worth £512,500, whereas W’s rented home is more modest. H has also paid less in mortgage interest payments than W has paid in rent. H has had the benefit of the joint mortgage. W has not made any payments towards that mortgage, but she has not been in a position to buy a property of her own. If this case had come to court in 2011 or 2012, then it is likely that the court would have prioritised the parties’ child’s housing needs, rather than H’s. At the very least, there would have been provision for W to be released from her mortgage covenants, by a deferred sale if necessary. (h) Both parties made contributions to the welfare of their child in the intervening period. W was the primary carer. H had limited contact but paid child maintenance. W challenges the figures, but I find H made the payments that he was required to make, which was generally far more than £8 per week. Those payments were calculated by the CMS in accordance with the appropriate formula, and I am not aware of W challenging the CMS calculation at any point.

(6) Whether the FMH was in negative equity at the date of separation. I have dealt with this at (5)(b) above.

(7) Whether H repaid family debts that existed at the date of separation of £50,000. The documentary evidence provided by H shows the following debts at around the date of separation: Loan 1 11,400 Loan 2 7,700 exc PPI (H compensated) Car loan 10,300 Credit card 1 2,500 Credit card 2 4,800 Credit card 3 3,000 Credit card 4 4,300 Credit card 5 2,600 Total 46,600 W contends that this included inappropriate expenditure by H, but given the passage of time it would have been disproportionate to require statements for all of the above accounts. I accept H’s evidence that at least one of the loans was required to repay friends and family who had loaned funds for a deposit to enable the parties to buy the FMH. I also accept his evidence that W had an additional card on at least two of the above accounts. It is more likely than not that the debts were all incurred for the benefit of the family. I will ignore the car loan, because H retained the car. I therefore find that H repaid £36,600 of family debt since separation.

(8) Capital expenditure since the separation. I accept H’s evidence that he personally carried out repairs on the FMH. I also accept that he replaced the windows at the property. He paid for the materials on credit card and needed the help of a labourer. I do not have documentary evidence about the cost. The other works were of repair rather than improvement.

(9) Mortgage payments The parties’ historic Forms E show a balance on the mortgage of c.£222,000. The mortgage is now £216,000. The mortgage has been paid on an interest-only basis. The difference between the figures is that there were arrears as at the time of separation.

(10) W’s rental payments. I do not have documentary evidence to show the rent that W has paid since the date of separation. Her estimate of £98,000 is within the likely bracket.

(11) W’s utility bills. I have no documentary evidence about these, and note that both parties will have spent on utility bills. I do not need to make a finding about this issue.

Fair Outcome

[30]I will not adopt W’s proposed approach, namely to compensate her for the rent that she has paid. It would be disproportionate to conduct an audit of both parties’ expenditure between 2010 and 2025. More importantly, that is not the way that courts deal with applications like this. The rent and mortgage interest payments have been spent and cannot be unspent. I need to reach a fair outcome and take all of the s.25 factors into account. That includes both parties’ needs. As I observed earlier, the consequence of W’s open proposals would be to leave her with nearly all of the assets and H with nothing (or potentially less than nothing). That would not be fair.

[31]I see no logical reason to reduce what W receives because of the delay between 2010 and 2023. Both parties delayed, and H was not led to believe that W had abandoned any claims. The FMH remained in joint names. H has had the benefit of living in a far better property than W, but at a lower cost. That is because he had the benefit of the joint mortgage. W has been unable to buy a property of her own. It is fair to reflect the fact that, since the date of separation, H has used his post-separation income to repay £36,600 of family debt. I will round this to £40,000, to include replacing the windows at the property. The equity in the FMH is £280,000. H should have credit for £40,000. The remaining £240,000 should be divided equally.

[32]In terms of housing need:(a) W will have £110,000 (the payment of £120,000 less £10,000 of debt) plus her mortgage capacity of £286,000. This would theoretically enable her to buy a property with a fund of £396,000. It is reasonable for W to aim to retire at age 67 and to have repaid her mortgage by then. Repayments on a mortgage at that level would cost nearly £2,200 per month. W earns £3,000 net per month, and I find that she would be over-stretched with a mortgage at that level. If she were to buy with a fund of £350,000, she would require a mortgage of £240,000. That would cost £1,730 per month, which is more manageable.

(b) H will have £150,000 (£160,000 less £10,000 of debt). To meet his needs, H would require a mortgage of £200,000, which would cost £1,404 per month. On the evidence before me, although the FMH exceeds H’s needs, H can afford to retain the FMH and increase the mortgage to fund the £120,000 lump sum. The mortgage would increase to £336,000, which would cost £2,360 per month to repay. 33. H can afford to pay W £120,000, which I find reflects her entitlement. W will be able to meet her needs with a payment at that level. The fair outcome in this case is for the FMH to be transferred to H on the basis that H pays W a lump sum of £120,000 concurrent with the transfer. If payment is not made within 6 months, then the property shall be sold and the proceeds shall be paid in the following

order

(a) to redeem the mortgage;

(b) to pay estate agents’ and conveyancing costs; and

(c) in payment of 43% of the balance to W and 57% to H. 34. There shall be a full clean break. Postscript 35. When I circulated the draft judgment, I asked for typographical corrections and any consequential applications by 4pm on Friday 20 June 2025. I made it clear that re-argument was not permitted. Mr Hayes sent an email with two typographical corrections. Mrs Cemke sent: (a) A two-page “objections to judgment” document. Paragraph 1 is a suggested editorial amendment, which I have considered. Paragraphs 2 to 8 include an application to admit new evidence and to re-argue the findings that I made, contending that the calculations were “erroneous and premature”. (b) A 171-page document containing a repeat of the document at (a) above, an application in N244 (though this is not an application but a rider without the Form) and various documents. No formal application has been made. In summary, the points made by W are that: i. having reviewed documents from Companies House, Mr Cemke’s employer is insolvent and cannot afford to pay him £72,000 per year. It is not possible to conclude an agreement with a bankrupt under the principle: nemo plus iuris in alium transferre potest quam ipse habit. ii. The offer of a mortgage in principle is not reliable and H should have provided an Equifax statement of his creditworthiness or equivalent. His earning capacity and mortgage capacity have therefore been overstated. iii. Following Potanin v Potanina

[2024] UKSC 3

[2024] AC 1063

, W is entitled to object to the draft judgment and can indicate which elements should be included and which have been omitted for various reasons. iv. The cases of Leslie

[1911] P 203

at 205, Cornick v Cornick (No 3)

[2001] 1 FLR 1240

§106 and Minton v Minton

[1979] AC 593

at 608 demonstrate that excluding W’s position statement was a violation of W’s right to a fair trial, as was the fact that W’s “attorney” had only 44 pages and had insufficient time to prepare cross-examination of H. v. A fair decision would reimburse W for the rent she paid which was actually £236,732.78. I should take into account the documents that W did not have with her at the final hearing but had left at home, as well as her position statement. (c) A short statement in which Ms Cemke requests a public judgment. 36. This case is governed by the Family Procedure Rules, not the Civil Procedure Rules. I will treat W’s request as if it had been made under the FPR. As to the points raised by W at 35(b) above: i. This evidence was not raised by W at the hearing, nor was H cross-examined about this. The final hearing was not a dress rehearsal or a dummy run. There is no reason for me to re-open the evidence and it would be contrary to the overriding objective to do so. Further, I am unclear how this would assist W’s case in any event. ii. The offer in principle is sufficient evidence and there is no reason for me to revisit my findings. iii. Potanin deals with the situation where a court has heard from just one party, without the other having had the opportunity to make representations. This was a Final Hearing and I heard evidence and submissions from both parties. A draft judgment is not an agenda for further debate. I have power to reconsider matters prior to finalising my judgment and until the order is sealed, but I do not find it appropriate to do so. iv. W was a litigant in person. The QLR was appointed by the court and was not her attorney. I directed that the evidence be limited to the 11 issues that were identified at the start of the hearing and I am satisfied that the QLR had sufficient opportunity to discuss the detail with W and to read the relevant documents in the bundle. The QLR raised proper questions directed to those issues. W gave evidence in chief about those issues and I gave her the opportunity, after cross-examination concluded, to tell me if there was anything that she needed to say. She had ample opportunity to put her case. The final hearing had already been adjourned once, neither party wanted a further adjournment, and the court has to bear in mind the need to deal with cases expeditiously and to allocate an appropriate amount of the court’s resources to each case. I am satisfied that W had a fair hearing. None of the cases cited by W are on point or support her contention: - Leslie is an old authority decided in 1910, at which point in time the husband owned all of the wife’s property. It was cited as authority on that point by Lord Nicholls in Miller v Miller; McFarlane v McFarlane

[2006] 2 AC 618

at §33. - Cornick (No 3) was cited in the following paragraph (§34), where Lord Nicholls approved Charles J’s decision that reasonable requirements are not a limited factor in the computation of periodical payments. - Minton was quoted at §35 as an example of the benefits of a clean break order. v. I will not admit a raft of further documents at this stage. vi. Accordingly, I have not changed my decision. Deputy District Judge Brooks KC