Ebenezer Oahimire Imonitie Adodo v Geok Kheng Tan [2025] EWFC 184 (B)

[2025] EWFC 184 (B)Case No 1614-1766-4056-3429
IN THE FAMILY COURT
Date 27 June 2025
(sitting in Nottingham)
Before
HIS HONOUR JUDGE ROGERS (sitting in retirement)
Between
EBENEZER OAHIMIRE IMONITIE ADODOApplicantGEOK KHENG TANRespondent
The Applicant appeared in person for in personMs Jennifer Lee (instructed by Rayden Solicitors) for RespondentHearing Hearing date: 4 June 2025This judgment was handed down remotely at 2pm on 27 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National ArchivesThe hearing was in private but the judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child and the confidential nature of the addresses of properties referred to must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
APPROVED JUDGMENT
[1]These are financial remedy proceedings arising out of the divorce of Dr Adodo (H) and Ms Tan (W). This is a rehearing as unfortunately this case has had a disastrous procedural history. Proceedings commenced in March 2021. A final order was made by District Judge Severn on 10 October 2022. H appealed unsuccessfully to His Honour Judge Watkins. His second appeal to the Court of Appeal was allowed on 28 October 2024. The decision is reported at [2024] EWCA Civ 1288. The leading judgment was given by Lord Justice Moylan with whom Lords Justices Arnold and Phillips agreed.[2]I need not dwell upon the earlier proceedings. It is sufficient to record that the parties and consequently District Judge Severn preceded upon the basis of a misunderstanding as to the availability of crucial funds in this case so that his ultimate order was shown to have a fundamentally flawed premise and therefore could not stand. In allowing the appeal the Court of Appeal directed a rehearing of the application and accordingly, at the direction of Lieven J, the Midland Circuit Family Presider, the matter has come before me for final determination.[3]Initially I hoped to conduct a relatively limited and narrow rehearing. Ms Lee realistically accepts that such a course is a legitimate exercise of case management powers but, in fact, both parties sought a more extensive inquiry and I am satisfied that that is appropriate, principally as issues of matrimonial or non-matrimonial property did not arise before the District Judge given the mutual misunderstanding. His decision was driven entirely by an analysis of the parties’ needs looked at, as he thought, in the context of very limited funds.[4]I have a very substantial bundle of documents (page numbers in brackets) comprising all of the earlier material, updated with recent section 25 statements from the parties, some additional evidence on housing and borrowing and revised procedural documents, most importantly the ES2. I have also received several freestanding documents, most particularly Miss Lee's skeleton argument and net effect schedule.[5]The background and chronological history of the marriage and associated matters is well documented within the current papers and has been summarised in the published judgments. I need only give the briefest outline.[6]H is 57. He is originally from Nigeria. He is a Doctor of Philosophy and currently an associate professor of commercial law at the University of Leicester. He was called to the Bar in Nigeria and practised for a short while from chambers there. However, he principally concentrated upon academic study receiving his qualifications in Singapore. He has recently registered with the Law Society in order to take tentative first steps towards qualification as a solicitor in England and Wales. His legal knowledge, albeit in a different area, has made him a formidable litigant in person. He has produced an impressive array of legal documents for this hearing including a lengthy skeleton argument which demonstrates to me that he has obtained a good grasp of the principles governing applications of this sort. He also provided, though not required to do so, a full electronic bundle of authorities. Though he did not get everything quite right and on occasion had to be directed by me, nevertheless I am very grateful to him for his presentation of his own case.[7]W is 59. She is originally from Singapore. She was a teacher but spent most of her career in sales. She had a good and successful career in Singapore but since relocating to the United Kingdom has found work less easy to come by and to sustain. She is at present unemployed. She has recently instructed a new firm of solicitors to represent her and has had the advantage of Ms Lee's advocacy at this hearing. I am also grateful to Ms Lee for the clarity and thoughtfulness of her documents and submissions and for her conduct of the case in court.[8]The parties have a 15 year old son, (S), whom I will not name openly in this judgment. He is of course at school but will have to undertake compulsory national service in Singapore when 18 or quite shortly thereafter. He is said to be academic and so, after national service, will probably attend university either in the United Kingdom or in Singapore. It is not certain, but W thinks further education in The United Kingdom is the more likely option. H has another 4 year old child whom, quaintly, he describes as his “love child”. That child is not a child of the family and received only passing mention in the evidence in the context of H’s responsibility for child support.[9]The parties were married in 2006, without significant premarital cohabitation, and the marriage failed in 2019. Unusually there has not been physical separation and so the parties and S remain living in the family home. From 2006 to 2013 the parties lived in Singapore and S was born. In 2013 the family relocated to the United Kingdom, living first in Guildford and latterly in Leicester, as dictated by H’s academic posts.[10]The ES2 in this case is a complicated document as the parties have different interpretations of some of the same assets. A number of the figures are uncertain either because estimates have had to be given or, as a result of lack of hard evidence, gaps have been left. In addition, figures inserted as pension values have to be treated with caution for very well-known conventional reasons, in particular bearing in mind the nature of H’s university final salary scheme where the CEV may represent an undervalue. Nevertheless, given the sums involved I am quite satisfied that the document is sufficiently robust for me to take a proportionate approach to the figures. I do not propose to deal with each item on the ES2, as some, if not de minimis, are so relatively small in value as to be insignificant in my overall determination. I will deal with the main items and those significantly in dispute. I will express values in pounds sterling although some assets are in other jurisdictions. I will round figures to the nearest £1000 for convenience.[11]The current family home is in Leicester (the Leicester property). It is in joint names and was purchased in March 2016. It is agreed that 40% of the purchase price was funded from borrowings against the Singapore property. Its value is £330,000, with net equity of £238,000.[12]Prior to relocation in 2013 the family lived in a large flat in Singapore (the Singapore property). It was purchased in 2002 by W, subject to a mortgage. She used her own savings including CPF resources. In paragraphs 22 to 25 of her section 25 statement (257) W sets out the financial details which are not in dispute. She calculates that her contribution from nonmarital sources represents about 70%. Since relocation W has retained the property which has been tenanted for substantial periods and is broadly self-financing. I will return to the inter relationship between the value of the Singapore property and CPF funds, but, in headline terms, I find the following figures should apply. There are several discrepancies in the ES2 between the parties and broadly I accept Ms Lee's analysis as to the choice of the correct figures.[13]The correct gross value I find to be £792,000. Taking off mortgage figures and the estimated costs of sale, the net value in is £620,000. I ignore for the moment the impact of the CPF funds. I accept that it is probable that CGT or its equivalent is likely to fall due on any sale, but in the absence of evidence as to how this is calculated in Singapore, no precise figure can be given. I will simply do my best to bear it in mind.[14]Singapore operates the Central Provident Fund (CPF). It is described in detail in documents in the bundle (349ff). It is said to be a key pillar of the Social Security system and the way of building a strong foundation for retirement. It is quite a complicated scheme and there is no substitute for a close reading of the documents. Although I need not set them out in this judgment, the operation of CPF was misunderstood in the earlier proceedings and led to the appeals. I am confident that the provisions are now understood fully and there is agreement between the parties, the lawyers and me as to the correct interpretation of its operation.[15]In short, CPF has three parts. The Retirement Account for over 55s provides a conventional annuity-based pension fund. The Medisave Account is a form of medical insurance fund, as healthcare is not free in Singapore. The Ordinary Account is the most flexible of the three. The policy objective for the citizen is obviously to provide long term security particularly in relation to housing and in retirement. It is, crucially, however, as Ms Lee fairly concedes, an accessible fund within certain parameters. This is where the first court fell into error, believing, erroneously, that the Ordinary Account was largely inaccessible. The true position is that if the Retirement Account is funded to its maximum, excess funds in the Ordinary Account may be accessed for specific purposes.[16]Up to date figures have been obtained either by accessing the “Dashboard” or as a result of direct approach. In round terms and assuming that the Retirement Account is fully funded, which would be a prerequisite, the balances are RA £120,000, MA £23,000 and OA £325,000. The CPF funds are dealt with differently by the parties in their respective columns of the ES2. Apart from the Retirement Account, which is properly treated as pension, H includes the other accounts in the equity of the Singapore property which gives a figure close to that in paragraph 14 where I undertook the same exercise. W deducts CPF funds from the equity of the Singapore property, inevitably giving a much lower figure for its net equity at £255,000. However, she then reallocates CPF funds to the pension section. It is ultimately, in my judgment, a matter of perception, as the final arithmetic is unchanged. Miss Lee argues that it is proper to allocate the funds to pension as they, cumulatively, are akin to pension provision, even if, strictly, the Ordinary Account is accessible. I will have to decide, as a matter of principle, how best to analyse the funds and apply them.[17]W also has a property in Malaysia with a net equity of £58,000. It is said to be in poor condition and difficult to sell. It may also attract CGT. It is agreed to be non-matrimonial.[18]W’s Barclays Everyday Saver account at £51,000 is also akin to CPF funds. She withdrew a larger figure from the funds but has had to draw substantially on the account, principally for legal fees, which I accept to be reasonable.[19]The £18,000 investments earmarked for S are properly excluded from matrimonial assets. Although W is sceptical, H’s liabilities are properly included.[20]In her liabilities, W claims £31,000 as a potential payment to tenants if evicted early from the Singapore property if it is sold. This figure is drawn from her section 25 statement (259). I cannot accept that figure as it is premature and uncertain. I have been shown the relevant tenancy agreement which runs from 1 November 2024 for one year with a possible extension of one year. Clause 5.9 of the lease gives the tenant a right of redress in the event of premature termination, but without evidence of how the law of Singapore works, it is impossible to quantify the potential loss.[21]W has some modest outstanding liabilities representing legal fees and sums owed to family members to fund litigation. Very much to her credit, she has been paying substantial sums as she has gone along and, since H has been a litigant in person for the majority of the proceedings, has spent far more than him as she has no legal background to rely upon. This imbalance is not quantifiable but is something I bear in mind.[22]W has outstanding a costs order from the Court of Appeal against her in the sum of £5000. H makes further claims for costs to which I will return.[23]Excluding CPF funds, pension values are £131,000 for H and £9,000 for W, subject to the reliability proviso mentioned above.[24]On the ES2 the parties’ “bottom line” figures are £75,000 apart and on Miss Lee's net effect schedule, with slightly different figures, they are £99,000 apart. Given the lack of some specific figures and the uncertainties in relation to others I am unable to give a definitive total figure. Taking account of the adjustments mentioned above, and in particular the removal of the compensation for tenants, the sums earmarked for S and the reduced sum in the Barclays account, but bearing in mind the potential for CGT payments I propose to adopt as a realistic “bottom line” figure the sum of £1,150,000 which is slightly nearer Ms Lee's calculation.[25]The parties’ income positions are straightforward, although unfortunately rather, a lot of time was spent during the oral evidence in clarification. As an associate professor H earns £66,500 per annum. His most recent pay slip shows a net figure of £3849 per month. W is currently unemployed and at present has an income of £17,700 per annum from various sources including rental from the Singapore property, although to some extent that funds the upkeep. I will discuss W’s earning capacity when I review her oral evidence. The impact of the respective income positions is difficult to judge at present so long as the parties continue to cohabit.[26]The parties’ offers are within the bundle and have been helpfully tabulated by Ms Lee in her net effect schedule. Although some of the base figures require adjustment in line with my findings and calculations, the broad position is that, using rounded percentages, H originally sought a transfer of the Leicester property to him, a sale of the Singapore property and a 75/25 division of the proceeds in favour of W, leaving the net effect as 60/40 in favour of W. In his closing submissions, quite unprompted, H reduced his claim to a share of the Singapore property to 10%. W proposes a sale of the Leicester property with equal division of the proceeds and no other adjustments, leaving the net effect as 82/18 in her favour. The parties agree that there should be a clean break but Ms Lee submits that W’s agreement to that should not be regarded as neutral but a significant and valuable concession which should not be ignored in the overall distribution of capital.[27]Both parties gave oral evidence and were cross examined at some length. Given his background H was able to accomplish, for the most part, a skilful and focussed cross examination, although at times he strayed into giving his own account of an issue or talked across W interrupting her flow. This was not a deliberate attempt to unsettle her and H immediately followed my guidance when needed. As expected, Ms Lee’s cross examination of H was skilful and professional. In the end, I do not find there is much direct conflict of fact. The differences were much more to do with the respective plans, the identification of the particular needs of the parties for the future and crucially the fair way to distribute the available assets. The third point is, of course, essentially not a matter of evidence but of submissions as to the exercise of my discretion, but perhaps inevitably the parties tended to debate what was or was not fair at some length.[28]H has a loud voice and, as he accepted, at times a somewhat passionate presentation. Nonetheless, for the most part, he addressed the issues thoughtfully and truthfully. He did not challenge W’s account of her initial pre-marital contributions. He rejected, in my judgment, justifiably the implication of Ms Lee’s line of questioning that he had not fully pulled his weight in the early years of marriage in Singapore. He accepted that W’s contribution was financial but was, I find, entitled to point to his extended period of study leading to his first and master’s degrees followed by his PhD as a major contribution to the welfare of the family. His studies were not self-indulgent or a reaction to the lack of an alternative but were focussed upon obtaining a high level of vocational and/or academic qualification to equip him in a professional or academic career. His current academic post, in my judgment, bears that out.[29]I accept H’s evidence as to his academic employment. He is 57 and an associate professor. There is no evidence before me of the chances at his age and in his circumstances of obtaining a full Chair. I take judicial notice of the current state of higher education and the financial constraints. It is noteworthy that there is no evidence of H undertaking at present any significant work in research which I would expect if he were a suitable candidate for promotion. H told me that he is a published author but that his main publication was in 2014. That is, as a legal text, potentially dangerously out of date, as he accepted. I accept he is hoping to provide a second edition for the publishers, Oxford University Press, and has begun some work on that. I have to say that I did not get the impression that the work was far advanced or that H was devoting much time to it. He receives a trickle of royalty payments from the first edition and no doubt he and the publishers would expect much greater interest in a new edition and an increased flow of sales and royalties. I do not find, however, that there is a realistic prospect of significantly increased income from that source. H will, I find, continue to receive small additional sums from external examining in about the sum of £1200 per annum.[30]H was significantly less impressive in his evidence when dealing with extra-curricular legal activities. He told me that his own adverse experiences in the legal field of divorce had led him into a desire to help others in the same situation. He said that because he had been named in a reported decision in the Court of Appeal he had achieved a certain notoriety and therefore had been approached by others for help. I frankly find this difficult to believe. A great many names appear in the law reports but that does not normally lead to the individuals being regarded as expert beyond their own experience. W’s suspicion is that because H has spent so many hours on researching these matters in relation to his own case, he has been touting for work as an informal divorce advisor. H denied that suggestion absolutely. It is curious that he has registered his interest with the Law Society if he has no ambition in this regard, but the evidence really goes no further. W, although sceptical, in the end was right to concede that she had no evidence that he was doing anything beyond some informal pro bono advisory work. I am unable to find that H has hidden earnings from this source or is likely to have in the foreseeable future. In any event, whether any such work on a formal paid basis as a solicitor or paralegal would be compatible with his academic post I simply do not know.[31]I find that H is likely to continue in his current post until retirement. He has no new partner. He will not be S’s primary carer but will see him regularly. H’s evidence about housing was exaggerated. The Leicester property has 5/6 bedrooms. H does not accept it is too big once the parties have finally separated. In addition, he contends that if he were forced to find alternative accommodation it would have to be commensurate with his status, having, as well as sufficient bedrooms, room for study, a library and amenities for entertaining. He rejected W’s housing particulars, in the region of £220,000 (289ff) as being examples of inadequate and unsuitable accommodation. He counterproposed properties in the region of £265,000 (265ff). Most of the examples in both sets of particulars have three bedrooms, the more expensive inevitably being larger and better appointed. In his evidence H explained forcefully the advantages, as he saw them, of retaining the Leicester property for himself and ultimately for his children and wider family. Perhaps surprisingly given the already long passage of time, H told me he was content for W and S to remain with him under the same roof. If not, he was satisfied she could easily obtain alternative accommodation by realising the Singapore property and buying in the United Kingdom or renting pending the return to Singapore for S’s national service.[32]At times I found H’s evidence to be somewhat unrealistic and uncompromising but, subject to the reservations already expressed he was sincere and endeavouring to help me arrive at a fair decision.[33]W was quietly spoken and at times tearful. She was obviously less confident than H in the Courtroom. Nevertheless, she gave her evidence clearly and, at times, with vehemence. I find that she has coped with continued cohabitation less well and is plainly fearful for the future. In my judgment, she does not believe H has made a full contribution to the family, thinking him self centred. She focussed upon her undoubted greater initial financial contribution and finds it difficult to look slightly more objectively at the wider picture. I do not criticise her for that, but it is the reality, in my judgment.[34]Notwithstanding the clarification of the true effect of CPF, W told me that to her it is basically a retirement fund and she does not see why it should be invaded for other purposes. She does not see a sale of the Singapore property as realistic or fair. She does not regard it as too big or well appointed, notwithstanding its substantial value, and in any event says it is needed for the period of national service and later for full retirement which she expects to take in Singapore.[35]W is, in my judgment, entirely convinced of the rightness of her position and largely incapable of taking a more nuanced view. She rightly, in my judgment, is proud of her financial contributions, many premarital, but fails to recognise the importance of the period of family life between 2006 and 2013 in Singapore when the Singapore property and the associated CPF funds were integral to the joint matrimonial endeavour.[36]On two areas of W’s evidence, I have some reservations. She explained to me the difficulties she has had with employment in the United Kingdom. I accept without hesitation that her career in sales in Singapore was successful and that she has found it impossible to replicate that. She has had employment relatively recently but has been unable to sustain it. She believes her skills are obsolete. I find that they are not useless but in need of updating. I accept her evidence that she has made many unsuccessful applications. However, listening to her evidence I am clear that she is somewhat too rigid. The main problem is that she does not want office-based work, preferring to work from home. This leads directly into my second reservation.[37]S is 15 and a half. I have to say that listening to W that is not obvious. I do not want, for a moment, to be unkind but her view appears to be that S really needs her constant care and attendance. She reacted with horror at my question as to whether S might travel alone to Singapore in 2 or more years time for national service. She simply could not envisage not being with him, even though, as I pointed out, he would by then be an independent adult. I find that both in relation to employment and care of S, W lacks a certain amount of flexibility. Germane to my task, I find W has an earning capacity albeit at a modest level and, of course, limited by her age and her firm intention to accompany S to Singapore in 2 or 3 years time. I do not find that this would make a significant difference to my overall approach but is a factor I cannot ignore. W told me frankly that she did not know what work she could obtain in Singapore. I suspect she has not even thought about it.[38]As I have said, W is entirely committed to the Singapore property and wishes to preserve it. In cross examination H put to W a series of documents in his supplementary bundle (HB 243) about the availability of alternative accommodation in Singapore through the Housing and Development Board (HDB). Individual 3 bedroomed flats were simply described by floor area and on average cost about £300,000. W told me that in floor area they are about 2/3 the size of the Singapore property and are likely to be far less attractive. More significantly, W was not able to confirm she met the eligibility criteria for this class of preferential housing. I find that she may meet the criteria but the evidence before me, even though many documents were submitted, is not sufficient for me to be confident. What else is available on the general open market is also unclear.[39]In some ways, I sympathise with W’s inability to look beyond the Singapore property for the future but I also find that it is an obviously valuable asset and accordingly it is entirely reasonable to explore alternatives, including but not limited to the HDB, if I am to make a reasonable evaluation based on overall fairness.[40]Having expressed some reservations about W’s evidence, as with H, on the whole she was truthful and trying her best.[41]It is important for me to identify the relevant legal principles. I have genuine admiration of the scholarship and effort of H in preparing his preliminary documents in the bundle (398ff) and in particular the skeleton argument (409) in which he sets out the detail of his approach in law and in fact. I was also grateful to him for his closing submissions. I intend no criticism of him when I say that to some extent he dwelt on very well established principles which often are taken as read. He could not possibly know or be expected to guess how familiar or not I might be with the seminal cases or basic principles. Accordingly, his extensive references to White v White [2000] UKHL 54, Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, Charman v Charman [2007] EWCA Civ 503 and to several other cases were a welcome reminder of the correct approach and I hope H will forgive me if I do not rehearse his submissions in detail or refer to every case in his authorities bundle.[42]Ms Lee, principally in paragraph 4 of her skeleton argument, set out succinctly a similarly useful summary of the general law. She referred to the often quoted shorthand approach of Peel J in WC v HC [2022] EWFC 22 as well as some of the same cases mentioned by H. She also prayed in aid two important more recent authorities in the Court of Appeal namely Hart v Hart [2017] EWCA Civ 1306 and, prominently in her arguments on paper and orally, Standish v Standish [2024] EWCA 567. We all await with interest the views of the Supreme Court in the Standish appeal but the decision of the Court of Appeal, at present, is the most recent and detailed analysis of the concept of matrimonial property in the context of the fundamental principles derived from the decisions in the House of Lords and Supreme Court in the earlier cases.[43]I have read and considered the detailed arguments of both sides. It would not be proportionate or helpful to add to the extensive scholarship in this field with yet further analyses of general principles which are very well know and, largely, second nature to practitioners and Judges in this field. I content myself with the following inevitably abbreviated summary.[44]The starting point is the statute. Under section 25 of the Matrimonial Causes Act 1973, it is my duty to have regard to all the circumstances of the case, first consideration being given to the welfare of S. Particular regard must be had to the matters set out in section 25(2). I must consider whether a clean break, terminating any potential ongoing obligations immediately or within a specified period, is fair and appropriate and achievable by adjustment without undue hardship.[45]My ultimate goal is to achieve an outcome which is fair and non-discriminatory. The process involves two stages namely the computation stage where assets and liabilities are identified and valued or quantified and second the discretionary or dispositive stage. If, as here, there is a dispute as to the nature of an asset and, in particular, whether it is properly characterised as matrimonial or non-matrimonial, I must examine carefully the provenance, timing and funding of the asset, particularly analysing the nature and timing of financial contributions and whether they were matched, unmatched or in some way balanced by other factors In relation to an asset or assets which is/are or were the matrimonial or family home, I have to analyse carefully the situation bearing in mind at all times the many references in the authorities, really deriving from the speeches in Miller, to the central and unique position of a family home within a marriage.[46]I have to consider the three limbs of every case, sharing, needs and compensation. When W described her perceived sacrifices in relocating to the United Kingdom to further H’s career I wondered if Ms Lee would raise relationship created disadvantage giving rise to a compensation element. Wisely, in my judgment, she did not. This is not one of those very rare cases where considering compensation makes any sort of tangible difference.[47]Sharing and needs are completely different and require different considerations but ultimately must be balanced and compared to see which approach should be adopted to achieve a fair outcome. Sharing, of course, in the vast majority of normal cases is only relevant to identified matrimonial property. In a great many cases sharing means equal division but that is not always so. Needs, in contrast look at a wider picture and, as is often said, may require “invasion” of non-matrimonial property if a fair outcome otherwise is unachievable.[48]The last stage in my exercise, having established the figures and having applied my mind to sharing and needs, is to step back and review my discretionary distribution against the broad concept of fairness. A useful but not determinative cross check is to look at the net effect of any distribution in percentage terms, particularly, but not exclusively, to see whether any departure from equality is justified or required.[49]The only significant area of disagreement between H and Ms Lee on the law was in respect of the correct treatment of matrimonial property and in particular whether a rigid or flexible approach should be taken with implications for the treatment of the family home.[50]H relied upon passages in White and Miller to underpin his submission that fundamentally any property identified as the former or present matrimonial home should be regarded as wholly matrimonial property and should be shared equally.[51]H referred to Lord Nicholls’s speech in White, citing the long passage headed “Equality” and mentioning specifically:
“25.........Sometimes, having carried out the statutory exercise, the judge's conclusion involves a more or less equal division of the available assets. More often, this is not so. More often, having looked at all the circumstances, the judge's decision means that one party will receive a bigger share than the other. Before reaching a firm conclusion and making an order along these lines, 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.”
[52]H also referred to several passages in Miller, again quoting Lord Nicholls:
“9. The starting point is surely not controversial. In the search for a fair outcome it is pertinent to have in mind that fairness generates obligations as well as rights. The financial provision made on divorce by one party for the other, still typically the wife, is not in the nature of largesse. It is not a case of 'taking away' from one party and 'giving' to the other property which 'belongs' to the former. The claimant is not a supplicant. Each party to a marriage is entitled to a fair share of the available property. The search is always for what are the requirements of fairness in the particular case.” “12. In most cases the search for fairness largely begins and ends at this stage. In most cases the available assets are insufficient to provide adequately for the needs of two homes. The court seeks to stretch modest finite resources so far as possible to meet the parties' needs. Especially where children are involved it may be necessary to augment the available assets by having recourse to the future earnings of the money-earner, by way of an order for periodical payments.” “16. A third strand is sharing. 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. In 1992 Lord Keith of Kinkel approved Lord Emslie's observation that 'husband and wife are now for all practical purposes equal partners in marriage': R v R [1992] 1 AC 599, 617. This is now recognised widely, if not universally. 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.” “22. This does not mean that, when exercising his discretion, a judge in this country must treat all property in the same way. The statute requires the court to have regard to all the circumstances of the case. One of the circumstances is that there is a real difference, a difference of source, between (1) property acquired during the marriage otherwise than by inheritance or gift, sometimes called the marital acquest but more usually the matrimonial property, and (2) other property. The former is the financial product of the parties' common endeavour, the latter is not. The parties' matrimonial home, even if this was brought into the marriage at the outset by one of the parties, usually has a central place in any marriage. So it should normally be treated as matrimonial property for this purpose. As already noted, in principle the entitlement of each party to a share of the matrimonial property is the same however long or short the marriage may have been.”
[53]H declined to engage with the points made in Ms Lee’s skeleton argument based upon principles derived from Standish, preferring, he argued, to base his submissions upon the highest authority only, namely that of the House of Lords. In my judgment, that is to misunderstand the role of the Court of Appeal. Naturally, it is not entitled to depart from the rules laid down by the House of Lords or Supreme Court. However, its judgments are a means of interpreting and applying those very rules. In other words, the guidance offered in Standish is of relevance and Ms Lee rightly reminded me of it.[54]Ms Lee emphasised the effective ratio of Standish that in the application of the sharing principle the source of the asset is the critical factor. She noted that sharing applies to matrimonial property and that derogation from that principle should be applied narrowly. In her skeleton argument she cited at length the key passage from the judgment of Moylan LJ which summarises his view of “matrimonialisation” as follows:
“163. In my view, therefore, it would be helpful to make clear, expressly, that the concept of matrimonialisation should be applied narrowly. This is not a hard and fast line but remains a question of fairness, reflecting, as Wilson LJ said in K v L at [18], that "the importance of the [non-marital] source of [an asset or assets] may diminish over time". With some diffidence, I would propose the following slight reformulation of the situations to which Wilson LJ referred in K v L, having regard to the developments that have taken place since that decision as follows: (a) The percentage of the parties' assets (or of an asset), which were or which might be said to comprise or reflect the product of non-marital endeavour, is not sufficiently significant to justify an evidential investigation and/or an other than equal division of the wealth; (b) The extent to which and the manner in which non-matrimonial property has been mixed with matrimonial property mean that, in fairness, it should be included within the sharing principle; and (c) Non-marital property has been used in the purchase of the former matrimonial home, an asset which typically stands in a category of its own. 164. In the first example, the sharing principle would apply in conventional form. In (c), the court will typically conclude that the former matrimonial home should be shared equally although this is not inevitable as shown by cases such as FB v PS. 165. The example in (b) requires a more nuanced approach similar to that referred to in Hart, at [96], when the evidence does not establish a clear dividing line between matrimonial and non-matrimonial property. As Mostyn J said in JL v SL (No 1) at [18], the underlying question is whether the asset or assets "should have the same character as those assets built up by their joint endeavours during the marriage, with the consequence that they should be shared … on divorce". I have deleted the word equally because that was simply a reference to what the District Judge had done in that case. Does fairness require or justify the asset being included within the sharing principle? 166. The conclusion that it does, however, does not mean that it must be shared equally. The submission by Mr Todd that, once an asset is matrimonialised and treated as matrimonial property, it must be shared equally is unsupported by any authority and would be contrary to the objective of a fair outcome.”
[55]In paragraph 4.10 of her skeleton argument Ms Lee also drew attention to paragraphs 143 to 147 of Standish and herself referred to the cases there cited by Moylan LJ to show that even the matrimonial home with its unique place at the heart of a marriage and so quintessentially matrimonial is not invariably shared equally.[56]Although the arguments of both sides were detailed and scholarly (and for those reasons I pay tribute to them), in my judgment they go over very familiar ground. To the extent that there is a difference of approach between H and Ms Lee, I find that Ms Lee’s analysis of the law, including the content of Standish, is the more accurate. H appeared to argue that once an asset has been identified as the current or former matrimonial home it is axiomatically matrimonial and, save only in the most exceptional circumstances, should be shared equally. That is, in my judgment, too rigid an approach. I accept at once that the outcome in very many cases will be a full and equal sharing of matrimonial assets, particularly the family home, but that is not invariably so. In my judgment the Court must always undertake a more nuanced and careful analysis of all the circumstances in order resolve the issue of what is or is not matrimonial and how and to what extent its value is shared.[57]It is noteworthy, in my judgment, that notwithstanding the apparently quite rigid approach taken by H in his submissions on the law, the approach to the figures was more subtle. Although he argued that the Leicester property was to be regarded as fully matrimonial, he nevertheless asked for an outright transfer to him. He then argued that the Singapore property was also fully matrimonial but conceded that it should be divided as to 75/25 in favour of W. He reduced his claim in his closing submissions to merely 10%. I did wonder whether he was simply balancing out the figures consequent upon a transfer of the Leicester property to him but in fact H accepted, in terms, that he conceded a reduction to reflect W’s unmatched and/or premarital contribution. That much is clear from paragraphs 12 (412), 29 (417) and 35 (418) of his skeleton argument and he did not resile from that in closing. In short, I find that H, in fact, applied the very nuanced approach which he said did not really arise in this case.[58]The basis of W’s open offer and the starting point for Ms Lee’s submissions was that the Singapore property is entirely non-matrimonial and the Leicester property, though matrimonial, should not in principle be shared equally given the initial contribution by W to its acquisition. She says that the offer, in fact, to share the Leicester property equally upon sale should be regarded as a fair and generous concession on her client’s behalf. She further argues that, to the extent that the CPF funds are not bound up in the equity of the Singapore property, they too should be regarded as entirely non-matrimonial and thus immune from sharing.[59]In her closing submissions Ms Lee, without formally making a concession, realistically accepted that that the Singapore property had for 7 years been the matrimonial home and at the heart of this family’s life and so could not easily be characterised as entirely non-matrimonial. Equally, she accepted the logic that once it had acquired matrimonial status the mere passage of time would be unlikely to cancel that out, particularly as it had been retained as an asset, albeit one principally for income generation, at least in the short term. Applying the very principles enunciated in the authorities cited above, in my judgment, it is unarguable that the Singapore property is completely outside of the sharing exercise. It obviously has a matrimonial character. The real question which Ms Lee helpfully addressed is, if, as I find, there is a matrimonial character (“an element of matrimonialisation”) how is that best reflected in the sharing exercise and what discount or reduction is applied?[60]The Leicester property seems to me straightforward. It was specifically acquired as a family home and, even after notional separation, remains so. It is in joint names and is the product of the parties' joint endeavours. In saying that I recognise W’s significant contribution to its acquisition but that is balanced, in my judgment, by H’s financial contributions even when W has been unemployed. I see no reason to treat is as other than wholly matrimonial and subject to the sharing principle on an equal basis. I do not accept Ms Lee’s submission that there is any element of valuable concession on her client’s part in accepting as much.[61]I propose to deal with the sharing claim in this way. I will again use round figures and ignore very small sums on the ES2. I will discount W’s figure for liabilities by £31,000 as I have already explained. I treat the Leicester property, H’s Pension, W’s UK pension and the parties’ savings as 100% matrimonial. Similarly, the parties’ debts are deducted to their full 100%. The Singapore property and the CPF funds, either tied up in the equity or free standing, have a matrimonial character but should not be regarded as susceptible to a full 100% sharing claim as that would ignore wrongly the sizable premarital and unmatched elements of contribution by W. Nevertheless, the property, although acquired pre marriage, has been in the family for many years and must be given appropriate weight as a former matrimonial home.[62]I could aggregate all of the Singapore assets and apply the sharing principle on an unequal basis to the total sum. However, I prefer to take a similar approach to Moor J in FB v PS [2015] EWHC 2797 (Fam) and discount the relevant asset to reflect the circumstances of the case and then to apply sharing broadly equally. Either method is legitimate but, in my judgment, my approach is neater here. It also has the advantage of taking account of passive growth in the value of the asset only to the extent of the discounted element. Plainly both parties are entitled to share in the passive growth but only as to the matrimonial element. Taking account of all the factors and giving very significant weight to the unmatched contributions of W a substantial discount is proper. I assess the discount at 60%, meaning that 40% of the combined values are susceptible to sharing on a broadly equal basis.[63]Translating this into headline figures produces this result in round £1000s. Leicester Property 238 H’s Savings 5 W’s Savings 63 H’s Pension 131 W’s UK Pension 9 Singapore Property 248(40% of 620) CPF 41 (40% of 103, being the RA, MA and balance of OA not linked to property but not including any top up for RA) H’s Debt -58 W’s Debt -16 Total Savings 661[64]Looking at the case in terms of needs, the position for each of the parties is similar, although the likelihood is that S will spend more of his time with W than with H. As I have already found, W overstates her role as primary carer given his age but nevertheless his welfare is my first consideration and is interlinked with hers.[65]Each party needs a home, an income and security for the future. Until cohabitation ceases the reality is quite difficult to determine as W’s plans are uncertain. I am not persuaded that H needs more extensive or valuable housing than W, even given his status as an associate professor. Three bedroomed properties appear in the bundle, many of which would be suitable. Some right at the bottom of the range are not ideal and so I find, on the evidence, that freehold housing in the region of £240,000 is suitable. That figure co-incidentally is broadly similar to that alighted upon by District Judge Severn in the first hearing some two and a half years ago.[66]I am satisfied that H can easily meet his needs within his basic sharing award. Assuming £330,500, the sum of £131,000 represents his pension and the balance of about £200,000 is more than enough either to retain the Leicester property or to buy an alternative. He may need to resort to further borrowing either by extending the mortgage on the Leicester property which is £82,000 at present or by borrowing for a deposit on a new property. Either way he has the ability to do so. The evidence from Lyons Finance (323) shows a mortgage capacity, without debt, of between £173,000 and £201,000. I accept H’s point that a theoretical mortgage capacity is not the same as an affordable capacity. However, as there is no likelihood of him needing to borrow anything like the maximum, I am satisfied he could clear his debts and manage a mortgage on his current level of net income, particularly if this case is resolved, as the parties agree, on a clean break basis. H urges me to consider his other child and the wider family in Nigeria. I do bear them in mind and, no doubt, they will represent a further call on his income. However, the reality is that support for S, which H accepts, is the first priority followed closely by meeting his own needs. He has a reasonable net income from the University and several working years ahead and so, to the extent it is relevant in this case, I am satisfied he can also cater for wider needs.[67]W’s situation is more tricky. She is unemployed with a limited income. The payments from tenants in Singapore are not readily available as they are required to maintain the property itself. If and when the parties separate, she has nowhere locally to live. Her proposal is for the Leicester property to be sold and the net proceeds divided equally. She tells me that she could scrape together sufficient to buy a modest property within the range evidenced. She says she would use her half share, her savings and funds provided by her family. That would, in my judgment be very tight but she is confident, presumably expecting flexibility in her brother’s potential contribution. I find she has a small, currently unused, earning capacity but that will not make any significant difference in the short-term. There is little or no likelihood of her achieving a meaningful mortgage capacity from her circumstances in the United Kingdom. Her pension provision in the United Kingdom is tiny. All this looks bleak and is the reason for her open approach. However, it begs the question as to the value of and utility of the Singapore resources. W is determined, if possible, to leave them completely untouched so as to provide housing in due course and a substantial retirement fund. On my findings as to the matrimonial nature of the Singapore property, albeit heavily discounted, her approach is untenable. In my judgment, she cannot simply ignore it. It must factor into a method of meeting her needs. I am not persuaded that she ought to or needs to sell the Singapore property. Even allowing for the CPF element of the equity and acknowledging the importance of topping up the Retirement Account to its maximum, the ES2 shows a potential untouched equity of £255,000.[68]Fundamentally, I am not persuaded that H’s basic entitlement on a sharing basis should be substantially eroded to meet a narrowly drawn needs calculation for W when she has assets of her own, albeit in Singapore, which themselves in part are matrimonial and, as has been shown previously, are available as security against which borrowing can be made.[69]It would not be a quick or easy process, I recognise. H’s suggestions are either, notwithstanding the divorce, the parties and S remain under the same roof pending relocation to Singapore for S’s national service or that upon separation W and S rent a property, again for that relatively short period. Normally I would not encourage either course and I would certainly not structure an order to achieve that outcome. This case is, however, in my judgment, very unusual. If the parties choose to continue a form of ad hoc cohabitation that is ultimately a matter for them. It would be wrong if I gave W no real choice. That is why I have already indicated that from her sharing award, albeit releasing funds from Singapore, she can achieve independence. I am not going to say it is essential that her family contributes as that would be an unfair pressure upon them. If they chose voluntarily to assist W, then that would give flexibility to her.[70]When first H suggested W should rent I thought that was unrealistic and a little bit harsh, but, on reflection, it may not be as unattractive as at first blush it seemed. The key unknown is the date of relocation. S is said to be bright and wishes to finish his schooling here. The tenancy in Singapore has 18 months to go and so the property would be available to W without penalty after that period. W told me she would definitely go to Singapore with S but beyond that she was uncertain. She could not predict what S would do. She hoped he would go to university in the United Kingdon but acknowledged he might stay in Singapore for work or study. Her own future plans were equally uncertain, I suspect, because they are likely to be bound to S’s choices. She was not certain about future accommodation or employment other than her ultimate goal at an unspecified future date would be to retire in Singapore She did not know how or when she would realise her interest in the Malaysia property.[71]I do not blame W for a lack of clarity. However, all I can be reasonably clear about is the plan for a relocation in about 2 or 3 years. That is why, very unusually, the proposal that she rents is not as unrealistic as usually it would be. It would, I accept, diminish her savings but would, crucially for her, allow her to keep intact all of her Singapore assets, which would be key when eventually she does relocate.[72]In short, as I have said, I reject W’s case that a sale of the Leicester property and division of the proceeds to free up funds for rehousing is the only way to satisfy her needs-based claim.[73]Upon separation, her income would, as she concedes, be limited. I hope she will be able to see the need for some flexibility in job applications so that she can achieve some relatively modest earned income. In any event, there will be some element of benefits reliance.[74]Although W’s pension provision in the United Kingdom is limited, the Retirement Account in the CPF is, by definition, designed for that purpose and the funds held in the Ordinary Account have a flexible nature including to help in retirement. I am satisfied her future needs are secured.[75]It is not possible to make a useful direct comparison between the parties’ respective pension provisions as they are different in kind but simply using the raw figures, with the obviously proviso of caution, it would seem that W’s is no worse than H’s and may indeed be substantially better if the Ordinary Account funds are included, although I warn myself against double counting as the Ordinary Account funds, at least at present, comprise an element of the equity of the Singapore property.[76]My ultimate conclusion on needs, whilst achieved by a lengthy and somewhat tortuous route, particularly in relation to W’s circumstances, is that they can be met fairly from the basic calculation of the sharing case. I am clear that W’s case, which, would involve a substantial invasion into H’s matrimonial share, on my findings, would be unfair and unnecessary.[77]H has outstanding a free-standing application for costs from the earlier proceedings. Although he is entitled to the costs in the Court of Appeal, at the direction of Moylan LJ, the other costs have been remitted to me for decision. I deal with costs in the context of this judgment in case my decision on costs impacts upon the funds available at the discretionary stage of my decision. This was undoubtedly anticipated by Moylan LJ as can be seen from his reasons accompanying the second Court of Appeal order (55ff). Paragraph 3 of the reasons (55) identifies the conventional approach.[78]H seeks an order for costs against W to cover the entirety of the proceedings before the District Judge and the Circuit Judge, on appeal, in the approximate global figure of £30,000 on an indemnity basis. The figures are broken down in detail in H’s documents and comprise external expenses incurred as well as his calculation of his own costs as a litigant in person.[79]I can deal with this aspect of the case quite shortly as I regard this application to be without merit. As I indicated at the commencement of this judgment the earlier problems arose out of the misunderstanding on all sides as to the effect of the CPF. Notwithstanding the basis upon which this point was dealt with before the Circuit Judge and in the Court of Appeal, H now contends that W behaved dishonestly, recklessly and in a misleading way, especially at the stage of the first appeal so that I should condemn it as the most egregious form of litigation conduct not only warranting an inter partes order but on the punitive indemnity basis. In addition, in his closing submissions to me H appeared to draw W’s erstwhile legal advisers into the picture. He claimed the Circuit Judge was seriously misled and not by reason of error but quite deliberately.[80]I have read with care the very detailed skeleton argument provided by H on the issue of costs (430) and take account also of his oral submissions. Although the arguments are scholarly and backed by authority, the factual basis for his claims is not made out and the language adopted is hyperbolic at times.[81]H’s position now seems to me dramatically at odds with previously. Obviously, the decision on costs is mine alone but the comments of Moylan LJ are telling. He rightly points out that the normal rule at first instance is no order as to costs. There is no evidence before me to suggest that the false premise of the District Judge was caused by anything other than mutual misunderstanding. It is recorded that H agreed with W as to the legal position of the CPF.[82]The appeal before Judge Watkins was dealt with on slightly different largely technical issues but neither his judgment nor the review of his decision in the Court of Appeal, notwithstanding the appeal was allowed, is suggestive of serious misconduct on the part of W or her advisers.[83]Moylan LJ points out, in his reasons in refusing any claim on an indemnity basis (57), that H did not contend that W deliberately gave inaccurate evidence and quoted H directly as having said “we were all mistaken”. In the judgment of the Court of Appeal at paragraph 38, Moylan LJ records how the case on behalf of H was put to the Circuit Judge as “misled or misrepresented”. There was no discussion of her motivation merely the impact of the incorrect representation. That seems to me H’s case at its highest. However, now and in strident terms he is critical. This strikes me as very much “after the event”.[84]In looking again at costs, I can see no justification for revisiting the order of the District Judge or of applying any other order than the conventional no order as to costs. His order will stand and this limb of H’s application fails.[85]In terms of the costs before the Circuit Judge, the starting point is different, namely that there is no normal rule. The Court has the so called “blank sheet”. If H were able to make good the proposition that W and/or her advisers had deliberately misled the Circuit Judge, then he might have the basis for an inter partes order, but on the material before me I am completely unable to identify any such conduct. H makes many assertions, but they are untested. It would be wholly unfair to accept them or to make a superficial summary determination without a detailed investigation. Given the seriousness, that would, in my judgment, inevitably involve an adjournment of the point and an involvement (if not joinder) of the lawyers so that the matter could be properly litigated on admissible evidence. That would be expensive, time consuming and a wholly disproportionate extension of this already grotesquely delayed case. It would further erode W’s already depleted savings as she would require representation. I have already found that she can meet her needs as things stand but a further reduction in available cash resources would make things very tight and so H might well, even if hypothetically successful, gain no more than a pyrrhic victory.[86]Therefore, on the grounds of the potential merits, the procedural complications and looking carefully at the question of proportionality, I refuse to make any costs order in respect of the costs before the Circuit Judge.[87]I have to add that even if I had been persuaded to consider an inter partes order, for reasons similar to those given by Moylan LJ, the likelihood of an indemnity-based order is very low and further the process of assessment of costs would have diminished the sums claimed. The potential reward for H may not, in truth, be worth the vast expenditure of time and money this exercise would involve.[88]In all the circumstances, I make no further inter partes order and so my discretionary task is unaltered. I have deliberately excluded the sum of £5,000 representing the costs due to H on the second appeal. To have included it as a joint debt would have diluted its impact. It will be paid by W from her resources which is affordable and fair in all the circumstances.[89]I have not slavishly gone through each item in section 25(2) of the Act in this judgment, but I have kept them all in mind and have incorporated the individual matters into my two-stage process. S has been my first consideration. I have asked myself whether a clean break is achievable and fair, even though both parties agree it is so. I conclude that it is, particularly given the availability of resources generally. A clean break is highly desirable in any event as it would be unfortunate at best and potentially disastrous at worst for these parties to remain in any way financially linked. The sooner they have independence the better.[90]As well as making an order which on paper is fair, it seems to me essential that it is workable and easy to implement. Experience shows that orders involving assets in other jurisdictions can be difficult to implement and/or enforce if complicated adjustments or sales are required. With respect to the parties in this case they are highly disputative and litigious and I am very anxious to make things as simple as possible and to remove, so far as I can, the scope for further argument. I do not want to precipitate, for example, any further consideration of Singaporean law or, worse, litigation in that jurisdiction.[91]The order I make is a simple one. The Leicester property, which is in joint names, will be transferred into the sole name of H legally and beneficially within 28 days. He will retain his savings and his pension. The aggregate value of this is £374,000 which is reduced by his debt figure of £58,000 showing net assets of £316,000.[92]In addition, he will retain the Nigerian property of very small value and will have the advantage of the receipt of £5,000 for costs and the sums claims to be owed if recovered. I leave these three items out of account in the final net effect percentage calculation.[93]Other assets remain in W’s sole name as beneficial owner. They are principally the Singapore property, the Malaysian property, the CPF funds, her savings and her pensions. She will have to satisfy the costs award and will have responsibility for her debt, as recalculated above.[94]There will be no order for costs of this application and rehearing.[95]In paragraph 24 I calculated total assets at £1,150.000 and at paragraph 69 I calculated the value of matrimonial assets at £661,000. H’s receipt of £316,000 represents about 27% of the total and 48% of the matrimonial both of which are, in my judgment, fair. The substantial departure from equality in respect of total assets reflects the nature and provenance of the non-matrimonial element of this case. I am also satisfied that the small departure from equality in terms of matrimonial assets is justified. I could have made a lump sum adjustment from W to H exactly to balance the arithmetic, but I decline to do so. Such an adjustment would require reduction of W’s savings which she needs as her only readily available resource. The small percentage disparity is also justified to reflect the uncertain and difficult to quantify elements referred to earlier, namely the unknown figure for CGT, the probable slight undervaluing of H’s pension and the intangible benefit of the clean break. In addition, unusually in this case, as H has substantial legal knowledge he has been able to act proficiently as a litigant in person in contrast to W who has had to have legal representation throughout. She has incurred costs in six figures which she has met from her own resources on the whole. That disadvantage and disparity must also be recognised in my award.[96]This whole process for the parties has been horribly expensive and protracted. I do hope they are now able to move on to financial independence rapidly. I will ask Ms Lee to draw up an order to reflect this judgment. She will, of of course, liaise with H but everyone should be aware that the finalising of the order is not an opportunity for protracted debate or to reopen issues already resolved. If, in the unlikely event of drafting dispute, further decision is required, then I will deal with that on paper following email representations. Time will run for the purposes of any appeal from the day after formal receipt of this judgment from the FRC office in Nottingham.[97]Since first circulating this judgment in draft for typographical corrections, I have received agreement from the parties that this judgment should be published, subject only to the preservation of S’s anonymity and protection of the precise addresses of the properties. That is, in my judgment, the right course. There is no justification for further anonymity and, in any event, the parties have already been named in the reported judgment of the Court of Appeal.