TA v SB [2025] EWFC 61 (B)

[2025] EWFC 61 (B)Case No NP19D01828Venue Cardiff Civil and Family Justice Centre, 2 Park Street, Cardiff, CF10 1ETDate 05/03/25
IN THE FAMILY COURT SITTING AT CARDIFF
Before
HIS HONOUR JUDGE MUZAFFER
Between
TAApplicantSBRespondent(BY HER LITIGATION FRIEND, THE OFFICIAL SOLICITOR)RespondentThe Applicant appeared in person for in personMiss Rhian Thomas (instructed by Red Kite Law LLP) for Respondent
Hearing Hearing date: 3 rd February 2025Judgment handed down at hearing on 5 th March 2025.............................This judgment was delivered in private. 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 children and members of their family 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.Case overview added by court prior to publication:
[1]Nature of proceedings: application for financial remedy[2]Nature of hearing: final hearing[3]Issues: whether the FMH should be sold / delay / funding for the Official Solicitor as litigation friend

Background:

[4]Outcome: the FMH to be sold and an unequal division of the net proceeds of sale in the respondent’s favour His Honour Judge Muzaffer: Introduction:[1]The court is concerned with an application for financial remedy orders made by the applicant husband, TA. The respondent wife is SB. I intend them no disrespect if, for convenience, I refer to them as ‘the wife’ and ‘the husband’ during this judgment.[2]The only question for the court to determine in these proceedings is what should happen to the jointly owned former matrimonial home (‘the FMH’). Notwithstanding this, the proceedings have been the subject of extraordinary delay. The husband’s Form A is dated 29th January 2021, and it has taken four years to get to the point of an effective final hearing on 3rd February 2025. This case is an example of the problems faced by parties and the court when one party (here the wife) lacks capacity to litigate and is dependent on the Official Solicitor to act as litigation friend, but where security for that party’s costs may not be readily available.[3]The final hearing was determined on submissions only. The husband acted as a litigant in person, whilst the wife, by the Official Solicitor, was represented by Miss Thomas of counsel. The court considered it appropriate to prepare a written judgment and circulate this by email in the hope that it might provide the wife additional time and space in which to be supported to process the decision. The formal handing down is listed to take place on 5th March 2025. Background: The parties and the marriage[4]Both parties are 65 years old. They married in August 1983 and separated 35 years later in December 2018. The husband petitioned for divorce in May 2019, and this progressed to decree nisi on 24th September 2020 and decree absolute on 17th November 2020. The parties have two adult and fully independent children, EN and AL.[5]Since separation, the parties have remained living at the FMH. However, each party lives in a distinct area of the house that the other does not have access to – the husband occupying the ground floor (including the kitchen) and the wife the first floor (including the bathroom facilities). The parties have lived their lives entirely separately since separation, with it being the husband’s case that they have not spoken since the pronouncement of decree absolute.[6]The wife has a longstanding diagnosis of Bipolar Affective Disorder. She is prescribed medication, but it is the opinion of medical professionals that she has suffered a relapse during these proceedings and has presented as being extremely unwell.

The proceedings

[7]The husband’s application was listed for first appointment on 21st March 2021. The matter was listed before myself, sitting as a District Judge, and I have continued to case manage and preside over all hearings since this time.[8]The wife had not complied with the court’s directions for exchange of Forms E and did not attend the hearing. Concerns about the wife’s mental health and capacity to engage in the proceedings were raised in writing by both her sister, HN, and son AL, and the court proceeded to direct a capacity assessment to be undertaken by her treating clinician. The treating clinician, then a Dr. U, responded to state that he did not consider himself able to do so for fear of compromising his therapeutic relationship with the wife.[9]The court sought to progress matters with further requests to medical professionals (including the wife’s General Practitioner) at hearings on 21st May 2021 and 18th August 2021, but there was reluctance from all to assist. By this point, the husband had instructed solicitors and efforts were made to engage the wife in a single joint expert assessment. However, the wife did not respond to invitations to an appointment, and matters continued to stall. The father has proceeded as a litigant in person since this time.[10]At a hearing on 28th March 2022, I proceeded to determine the question on the material available, and concluded that the wife did not have the capacity to litigate the proceedings and was a protected party pursuant to FPR Part 15. Enquiries were then made of HN, AL, and EN as to whether they would be willing to act as litigation friend, but they all declined to do so and were unable to suggest anybody else who might undertake the role. As such, the court invited the Official Solicitor to act as litigation friend of last resort.[11]Unfortunately, it then took a considerable amount of time for the Official Solicitor to confirm her agreement to acting in this case. Hearings on 5th July 2022, 8th September 2022, 8th December 2022, and 15th March 2023 were all vacated whilst enquiries were being made in relation to the question of the Official Solicitor’s security for costs. The court did its upmost to assist with a range of third party orders, but no other progress could be made in relation to the proceedings until this issue was resolved.[12]It was not until June 2023, some 15 months after the decision on capacity had been made, that the Official Solicitor confirmed her agreement on the basis that the wife had secured legal aid.[13]I am very aware of the significant demand for the services of the Official Solicitor, and there were undoubted additional complexities here given the complete non-engagement of the wife. With that in mind, nothing that I say ought to be perceived as a criticism of the Official Solicitor and the processes involved in accepting an invitation to act. However, it is important that the realities of the situation are laid bare, as it is very difficult to see how a court can act in compliance with the overriding objective to deal with cases justly, expeditiously, and fairly when it is a hostage to such delay.[14]An adjourned first appointment finally took place on 4th September 2023, with standard directions (including valuation evidence of the FMH) made to take the matter to an FDR on 20th November 2023. The FDR was not effective. For the first time in the proceedings, the wife attended court and engaged in discussions with the legal representatives instructed on behalf of the Official Solicitor. The wife asserted that she did have capacity to litigate, and an adjournment was sought to allow an application for a single joint expert assessment to be made. I permitted an adjournment (partly because other evidence also remained outstanding), and the subsequent application for assessment made by the Official Solicitor proceeded by consent.[15]Unfortunately, the assessment did not take place and matters soon came to a halt once more. By letter dated 29th January 2024, the solicitor instructed by the Official Solicitor wrote to the court to inform it that the wife’s entitlement to legal aid had been reassessed, and on the basis that her monthly income through benefits and a small pension was above the relevant threshold by just £200 per month (£945.58 versus £733.00), her public funding certificate had been discharged. It was further said that financial remedy proceedings fall within the scope of LASPO, and that exceptional funding was not available. The Official Solicitor subsequently confirmed that as there was no longer security for the wife’s costs, she no longer consented to act as her litigation friend.[16]The court once more explored whether any of the wife’s family members might be willing to act as litigation friend, but did not receive a response. At a hearing on 9th April 2024, attended by the wife, the court discharged the direction for a single joint expert capacity assessment on the basis that there was no funding for the same and the wife’s presentation at the hearing was consistent with its earlier determination on litigation capacity.[17]Although acutely aware of the provisions of FPR Part 15, including FPR r.15.2, I considered that it was now necessary to list the matter for final hearing. In the absence of an alternative, it was my assessment that the overriding objective at FPR r.1.1 required the court to actively look at how to conclude proceedings that by then had been extant for over three years.[18]At the court’s request, the Official Solicitor agreed to continue to look for a resolution to the security of costs issue, although none was forthcoming. Shortly before the final hearing listed on 10th and 11th June 2024, I wrote direct to the Chief Executive of the Legal Aid Agency, Jane Harbottle, to set out my concerns at the prospect of having to determine the proceedings without the wife having a litigation friend and in a manner that would inevitably compromise her Article 6 rights to a fair trial.[19]I was and remain extremely grateful for the prompt response received from Ms Harbottle dated 7th June 2024, in which she confirmed that the Legal Aid Agency agreed “in the very unique circumstances of the case” to exercise its discretion under Regulations 19 and 20 of the Civil Legal Aid (Financial Resources and Payment Services) Regulations to withdraw the discharge of the wife’s certificate and to reinstate it with effect from 5th June.[20]Whilst this was plainly a very welcome intervention, it is obviously a matter of considerable concern that a gap existed into which a vulnerable party without litigation capacity was able to fall, and that a resolution only came after a direct plea for assistance from a judge.[21]In light of this development, the Official Solicitor sought a period of time to re-instruct fresh representation and secure an extension of the reinstated public funding certificate to include a final hearing. In the end, this was only confirmed by the Legal Aid Agency on 2nd October 2024, in part due to difficulties in the newly instructed solicitors, Redkite Solicitors, obtaining relevant documentation from the solicitors instructed prior to February 2024.[22]As neither party had given attention to the court’s directions for further evidence made at the hearing on 23rd November 2023, the final hearing that had been listed on 21st October 2024 proceeded as a directions hearing to bring matters back on track. The directions made on this occasion included updates from the local authority and the wife’s medical team, as well as an updated valuation of the FMH and mortgage capacity statements. It is noted that the Official Solicitor did not seek to revive the application for a single joint expert capacity assessment of the wife or challenge the determination made in March 2022.[23]It is also the case that no party sought to suggest that I should revisit my determination (taken when the wife was without a litigation friend) to list the matter straight to a final hearing, rather than an FDR. I am very conscious of the potential value of an FDR and its importance to the court process, as emphasised most recently in GH v GH [2024] EWHC 2547. However, I consider that this is a case where the type of exceptional reasons envisaged by FPR r.9.15(4)(b) exist.[24]The positions of the parties have been settled for some time – the husband seeks an order that the property be sold so that he can finally move on with the later years of his life, whilst the wife’s expressed wish is to remain in the property by whatever means necessary. Given what it is said may be the impact on the wife’s mental health should she be forced to leave, the Official Solicitor has long since indicated that this would be the formal position taken on her behalf. Whilst I accept that nothing is certain, it struck me as unrealistic to expect the parties to bridge this divide of their own volition. Neither party can be said to be unreasonable in their position, or posturing for the purposes of litigation. This is a desperately sad set of circumstances in which there is no obvious middle ground, and there must come a point at which the parties can reasonably expect the court to take control and finalise matters for them.[25]The case has been the subject of extreme and exceptional delay. As I shall detail, the parties have endured barely believable living conditions throughout this time. In addition, the evidence is that the wife has suffered a serious relapse in her bipolar disorder given the uncertainty as to the outcome and her future living arrangements. This is not just a question of the court seeking to further the overriding objective; to my mind, it would be unconscionable to impose on the parties the real possibility of even further delay after so many false dawns.

Positions at the Final Hearing:

[26]The husband seeks an order that the FMH is sold and the proceeds divided equally. Thereafter, he seeks a clean break.[27]The Official Solicitor seeks an order that the FMH be transferred into the wife’s name once the mortgage is cleared in April of this year, and that the husband then vacates and resides in rented accommodation. In the alternative, it is proposed that the wife’s ongoing occupation of the property is secured by way of either a transfer with charge back or Mesher arrangement, to be sold if the wife moves to a formal care setting or death.[28]No other orders are sought, save that the parties’ joint bank account is closed. It is agreed that the case is suitable for a clean break.

Legal Framework:

[29]I have had regard to the authoritative summary of the general law to be applied as set out by Peel J at [21] of WC v HC [2022] EWFC 22. In respect of the points relevant to the facts of this case:a. The court’s objective is to make an order in relation to the parties’ finances that is as fair as possible in all the circumstances.In an evaluation of fairness, the court is required to have regard to section 25(1) of the Matrimonial Causes Act 1973 and the checklist of matters set out at section 25(2).b. Section 25A requires the court to consider exercising its powers in such a way that the financial obligations that the wife and husband have towards each other should be terminated as soon after the divorce as is just and reasonable.c. This primary issue in this case is meeting the parties’ needs. The compensation and sharing principles are not engaged.d. The principle of needs cannot be looked at in isolation. It requires consideration of the parties’ financial needs, their obligations and responsibilities, the standard of living enjoyed by the family prior to the breakdown of the marriage, the parties’ ages, and any physical or mental disability of either of them.[30]The difficulties faced by the court in cases involving limited assets was considered by Moor J in Butler v Butler [2023] EWHC 2453 (Fam): [39] The fact that a judge rightly concludes that a case is a ‘needs’ case does not mean that the judge must then make an order that satisfies both parties’ needs. In one sense, this is obvious, because there may simply be insufficient assets to satisfy the needs of either party, let alone both. I take the view, however, that it goes further than that. There will be many cases where there are sufficient assets to meet both parties needs and it is undoubtedly right to do so, even if that means invading non-matrimonial property. There will, however, be a different category of case where the assets may only be barely sufficient to do so or, potentially not sufficient. These are the most difficult cases, and this is one of those. [40] I am quite clear that, in cases such as the case I have been dealing with, the court cannot simply apply needs as the only consideration. It must consider all the factors set out in section 25(2), albeit that some will be more significant than others.[31]Miss Thomas referred me to the (technically non-citeable) decision of HHJ Booth in V v V [2024] EWFC 380 (B) as an example of a case where the court prioritised disability needs when ordering that the FMH should be retained for the use of a tetraplegic husband. Miss Thomas accepted that the physical nature of the husband’s disability made it distinguishable to the facts of the current case, regardless of its non-binding nature. For completeness, I record that I have also had regard to two other decisions in which serious disability is an issue – Wagstaff v Wagstaff [1992] 1 FLR 333, and Mansfield v Mansfield [2012] 1 FLR 117. Ultimately, each case is fact dependent, and the physical or mental health of a party is just one aspect of the court’s assessment pursuant to s.25 MCA.

Evidence:

[32]I have carefully considered the court bundle including evidence received from Cardiff City Council’s Community Mental Health Team, the wife’s treating clinicians, and the statements of the parties. The final hearing was dealt with on submissions only, it being agreed that there was very little factual dispute between the parties.[33]That said, I have had the benefit of dealing with each of the parties on several occasions and have been able to form a view of them as litigants.[34]The husband has approached matters in a straightforward manner throughout. He has shown remarkable levels of patience with the process, as well as respect for the difficulties that the wife has. Understandably, he is now fixed on receiving an outcome and moving on with his life.[35]In keeping with the medical evidence, it is clear that the wife has struggled to cope with the stress of the proceedings and has suffered ill-health as a result. I record my gratitude to her for attending the most recent hearings and assisting the court by directly expressing her wishes in a calm and courteous manner. I would like her to know that I have always listened carefully to what she has had to say, even if it is the Official Solicitor who is making the litigation decisions on her behalf. Computation: Property

Computation:

[36]The only capital asset is the FMH. The husband has lived in the property since the age of 4, and he and the wife jointly purchased the property from his mother in 1996.[37]The parties obtained an updated valuation report dated 28th January 2025 that values the property at £270,000. The mortgage balance as at 9th December 2024 was £4,286 and the terms ends in April 2025. The husband has maintained the mortgage since the parties separated and there are no arrears. Assuming that the mortgage will be discharged in full by April, there will be a net equity of some £261,900.

Income and Pensions

[38]The husband has worked as a courier on a self-employed basis for over 30 years. Over the last three years, his income after tax and national insurance has been approximately £38,000 per annum. The husband is already in receipt of a small pension with [X Courier] worth £142 per month / £1704 per year. In addition, he has a further pension with the Prudential (CETV £12,582) that will be in payment from 2029.[39]It is the husband’s case that the service he works with, [X Courier], will not renew a further five year lease on his van beyond his 66th birthday and his career as a courier will end in November. In any event, the husband states that he can no longer meet the physical demands of the job. The husband will then become reliant on his pension income (which will include his state pension). He has looked at the potential for taking on a taxi driving role, although has some understandable reluctance to do so at his age. In the circumstances, I accept that his future income save for that derived from his pensions is uncertain.[40]The wife’s income is comprised of ill-health state benefits (PIP and ESA) and pension payments from a Civil Service Pension totalling some £17,422 per annum. She is due to receive her state pension in January 2026. There is no prospect of her returning to work on account of her ill-health.

Other Assets

[41]The husband holds c.£3,000 across two bank accounts, whereas the wife is overdrawn by c.£800. Neither party has any liabilities, save that the wife will have to contend with the Legal Aid Agency’s statutory charge in relation to her legal fees.

Analysis:

[42]I have regard to the following:a. The court is concerned with a long marriage of 35 years duration.b. Both parties are aged 65, and their adult children live independently. It appears that neither AL nor EN have much involvement in the lives of their parents.c. The parties’ future income needs in retirement will be met by a mixture of pensions and, in the wife’s case, state benefits.d. There is no suggestion that the parties made anything other than an equal contribution to the marriage in their respective roles, although the husband has made an unmatched contribution in paying the mortgage since the parties separated in 2018.e. Although little detail is provided, the husband states that the parties enjoyed a good standard of living during the marriage.f. When addressing the court direct, the wife has referred to being a victim of domestic abuse during the marriage. This is denied by the husband, and the Official Solicitor does not pursue a case on conduct.

The wife’s health

[43]Writing on behalf of the wife’s treating psychiatrist on 13th November 2023, Dr. A confirmed that the wife has a diagnosis of Bipolar Affective Disorder, a chronic and enduring mental health disorder. Dr. A describes the wife’s complex treatment regime and states that “should SB stop her prescribed medication, there is a high probability of relapse in her mental state. In the past, this has led to a hypomanic state when SB was paranoid and believed she was being spied on, pressured in speech, lacked insight into her mental state and was subsequently detained to a mental health ward.”[44]In a letter dated 11th December 2024, the wife’s new treating clinician, Dr. O, consultant psychiatrist, informed the court that the wife had presented with symptoms of a relapse in September 2024. Dr. O records that the identified trigger was the court hearing scheduled for 24th October and the prospect of a decision being made about the FMH. The wife stated that should the outcome of the proceedings be that the property is sold, she would “disappear and end her life.” It is noted that the wife also described how and where she would propose to do this.[45]Dr. O writes that the wife’s case was urgently discussed at a multidisciplinary team level given the significant concerns that she was likely to put her plan into action. After the October hearing was adjourned, Dr. O identified a further deterioration in the wife’s presentation, with increased pressure of speech and paranoid thoughts. She continued to voice ongoing suicidal thoughts with planned intent. It was felt that the wife’s symptoms were consistent with hypomania, potentially complicated by an underlying undiagnosed neurological condition.[46]More positively, Dr. O records an improvement in the wife’s symptoms following an increase in her medication, including a reduction in her suicidal ideation. Dr. O confirms that the wife has also been referred to neurology for an assessment in light of her hypergraphia and extremely repetitive speech.[47]Whilst not specifically commenting on the effect of any disruption in her living arrangements on the wife’s mental health, Dr. O considers that “there is clear evidence [that] increased stress… predisposes SB to relapse as evidenced over the past few months.”[48]The court also has the benefit of the view of the wife’s social worker within the community mental health team. When asked about the impact on the wife of any a sale of the FMH, she writes as follows in a letter dated 4th November 2024:
“It is my opinion that should her home be sold, this would cause SB significant distress and have a detrimental impact on her mental health, increasing the probability of causing a relapse leading to hospital admission. SB has voiced on several occasions that should she lose her home that she would end her life, her thoughts of suicide relating to the potential lose of her home have been well documented throughout the course of the court process and have strengthened in intensity as time has progressed (particularly in the last two months). When the final hearing dates have been set previously, SB has been supported in court by a social worker with the plan to refer directly to the crisis team (for an assessment regarding admitting SB to hospital for her own safety) in the case that the house was ordered to be sold.”

The financial needs of the parties – housing

[49]The FMH does not currently satisfy either the wife or the husband’s basic need for accommodation that is fit for human habitation.[50]The husband currently resides on the ground floor of the property, with access to only a reception room and the kitchen. He does not have the use of a bathroom or a toilet, instead using either a local pub or a shower at work. For a period, he had no access to running water either, as the supply to the property had been cut off due to a serious leak emanating from the upstairs bathroom to which a plumber could not secure access to fix.[51]The wife occupies the first floor of the property, which comprises of three bedrooms and the bathroom. She does not have access to a kitchen or proper cooking facilities. She too has suffered from a lack of basic amenity whilst the property has been without a functioning water supply.[52]It is the husband’s case that the wife’s part of the property is in a dilapidated state and barely accessible given the volume of paperwork held by the wife. This is supported in the expert valuation report, which records that “access to the first floor of the house was limited due to personal effects (paperwork) covering most of the floor”, and that “cosmetically the property is in poor condition and requires refurbishment throughout, including replacement of the kitchen fittings.”[53]The court asked the local authority whether any assessment of needs had been undertaken pursuant to the Social Services and Wellbeing (Wales) Act 2014. In her letter dated 4th November 2024, the social worker suggested that the most recent assessment took place in May 2023 which “led to a successful deep clean and declutter of SB’s living space, which she professed to be very pleased about.”[54]Otherwise, the social worker states that it is difficult to engage the wife in discussions about other possible care needs, in addition to the practical difficulties of offering such care “due to the condition of her home environment”. I record my surprise that this is the extent of support offered by the local authority in accordance with its duties under the 2014 Act, notwithstanding any reticence on the part of the wife.[55]In any event, it is plainly imperative that both the husband and the wife have access to their own safe, secure, and habitable accommodation. At its most basic, they each need unrestricted access to fully functioning kitchen and bathroom facilities. This is what the court must ensure is achieved at the conclusion of these proceedings.

The borrowing capacity of the parties

[56]The parties have jointly obtained borrowing capacity reports dated 23rd December 2024. The husband’s report suggests that he has a maximum borrowing capacity of £123,197 over a 9 year and 10 month term, with monthly payments of £1,365.63. The wife’s is assessed £49,406 over a 10 year term, with monthly payments of £519.45. Both are predicated on a 10% deposit.[57]Both parties question whether this is a realistic reflection of their true ability to borrow. The husband argues that his income will reduce significantly once he ends his courier work later in the year, and that it is unrealistic for him to be working and earning enough to pay a mortgage of £1,300pcm until the age of 76.[58]On behalf of the wife, the Official Solicitor notes that her income is only £1,452pcm, and that a mortgage of £519.45pcm would account for a significant proportion of this. Given that the wife’s current account is currently overdrawn by some £800, without her being responsible for the mortgage or any household bills, the Official Solicitor has real concerns as to whether the wife would be able to service any borrowing.

The options available to meet housing needs

[59]If the FMH is sold and the net proceeds divided equally, each party will receive in the region of £130,950. The husband puts forward particulars of properties suitable for both parties (all two-bedroomed flats) with a price range of £160,000 to £190,000. The wife’s particulars comprise largely of one bedroom flats priced between £130,000 and £150,000. I note that whilst all the properties put forward are in Cardiff, only a handful are in the same area as the FMH.[60]The court asked the local authority to set out the support it would offer the wife in the event that the FMH is sold and the wife is unable to purchase a suitable property. In her letter dated 4th November 2024, the social worker states that the wife would be offered hostel or hotel accommodation in the first instance, with any further tenancy agreements subject to her capacity to enter them. It was also confirmed that the wife holding any proceeds of the sale would not preclude her from accessing temporary accommodation given her vulnerabilities. The social worker states that the housing team are aware of the “intricacies of the situation” and ready to work closely with the wife’s clinical team.[61]The wife’s housing needs will be met if the court decides to transfer the FMH to her or implement a Mesher order to secure her exclusive occupation (subject to any necessary remedial work to ensure that it is habitable).[62]If the FMH is transferred and the court accepts the report on the wife’s borrowing capacity, the wife would be able to raise a lump sum of up to £49,000 to pay the husband. He would then be able to combine this with his own mortgage capacity to purchase a property. However, if the court accepts the concerns raised by both parties in respect of the prospect of raising sums in line with the borrowing capacity evidence, the husband will be left to the rental market to secure accommodation. The wife puts forward particulars of a range of unfurnished flats for the husband ranging from £750pcm to £850pcm.

Implementation of any order made

[63]It is sensible for the court to bear in mind the practicalities of implementing an order relating to the FMH if the wife is assessed as lacking capacity to sign the relevant legal documentation for either a transfer or a sale. The issue would not arise immediately in the event of a Mesher order, but would once any condition for sale is triggered. The question of the wife’s capacity to then manage her finances and purchase a new property is also a relevant concern.[64]The Office of the Public Guardian has confirmed that there is no Lasting Power of Attorney or Enduring Power of Attorney registered in respect of the wife. As such, separate applications would need to be made to the Court of Protection for a trustee order to deal with the FMH, and for a one-off order or the appointment of a property and financial affairs deputy to deal with any onward purchase. Such applications can take anywhere between 6 and 12 months to process and conclude.[65]Between the date of the final hearing and the handing down of this judgment, the court has received two capacity assessments undertaken by the wife’s social worker to assist in its planning for the outcome of these proceedings. The first concludes that the wife does have the capacity to “sign the documents and enable anything that needs to be done to enable a sale or transfer of the home”.[66]The second considers whether the wife is able to manage any proceeds received as a result of the sale of her home, and concludes that she lacks the capacity to do so on the basis that she is unable to use or weigh information relevant to this decision. However, it is the social worker’s view that “it is entirely possible that once the decision regarding her home has been made and SB has come to terms with it, she may regain capacity in this area. Therefore, capacity to manage proceeds of the sale of the home would need to be reassessed once a sale has been agreed.”[67]Whilst it is undoubtedly positive that the local authority is proactively thinking about its support for the wife, I am bound to note that both assessments are extremely brief in detail and analysis. It is also not readily apparent how the two assessments reach different conclusions when it is the wife’s fixation on the FMH not being sold that is relied upon as the reason for her lack of capacity in the second assessment.[68]In any event, it is clear that the implementation of any order is unlikely to be a straightforward exercise. The question of enforcement may be similarly problematic. Should an application for enforcement be necessary (such as an order for possession), the court will once more have to grapple with the question of the wife’s capacity to conduct litigation, and if required, the appointment of a litigation friend. The potential for further delay is obvious.

Realistic Options:

[69]The range of realistic outcomes in this case is restricted by the limits on each parties’ ability to raise borrowing. Whilst the husband will be able to secure something, the court must have regard to both his age and diminishing earning capacity. A mortgage of £120,000 is entirely unrealistic. Similarly, whilst the wife has a mortgage capacity on paper, the reality is that any attempt to borrow a meaningful sum would be fraught with difficulty and delay. It is also likely to set her up to fail by defaulting on her obligations.[70]The only realistic options are those put forward by the parties – either to sell the FMH and divide the proceeds, or have it retained for the exclusive occupation of the wife.[71]The husband’s proposal would allow both parties to receive something from a house that has been the marital home for over 35 years. It would reflect the contribution that they have each made to a long marriage, and present them both with the opportunity to meet their future housing needs with owned accommodation. In theory, the parties would be left with a standard of living broadly similar to that enjoyed during the marriage. However, the evidence is that a sale of the FMH risks jeopardising the wife’s mental health with unknown but potentially extremely serious consequences. In addition, if the wife is deemed to lack capacity to deal with a sale, the implementation of such an order is likely to be complex, drawn out, and a source of ongoing uncertainty.[72]The wife’s proposal has the benefit of maintaining housing that is suggested will best protect against a relapse in her mental health. It is said that the court could mitigate any unfairness to the husband with an unequal division of equity in his favour if the FMH is later sold on the activation of a trigger condition. However, this approach would effectively ignore the contribution made by the husband during the marriage, and leave him dependent on the rental market to meet his future housing needs. His ability to fund this in retirement will be dependent on his pension income, and he will be forced to live with the uncertainty of both when he might be able to realise his share in the FMH, and what it might be worth when he can. I acknowledge the husband’s concern that there is a real risk of the property depreciating in value if more of it suffers from the disrepair and neglect observed within the wife’s quarters.[73]Depending on the assessment of capacity, a transfer of the FMH to the wife would also pose the same logistical difficulties as a sale. Only the imposition of a Mesher order would avoid this in the short term, although it would still present a challenge if a condition for sale is met whilst the wife is alive. A Mesher order would also have the effect of leaving the husband legally tied to the property, with potential exposure to unknown risks and obligations given the concerns surrounding the wife’s ability to maintain the property to a safe and habitable condition. Whilst the potential difficulties with implementation ought to be born in mind, they ought not to override the court’s assessment of what would otherwise be an unattractive outcome.

Decision:

[74]This is a finely balanced case that has been extremely difficult to decide. Having considered and balanced the merits of the realistic options, I conclude that a sale of the property is the fairest possible outcome in all the circumstances of the case.[75]I am acutely aware of the extent of the wife’s care and health needs, and plainly do not take lightly the probability of a deterioration in her mental health in the event of a sale. However, s.25 MCA requires the court to have regard to a range of matters, and notwithstanding its obvious importance, it would be impermissible to elevate the wife’s health to being the court’s paramount consideration. The weight to be attached to it in the final balance must not be disproportionate, and in my assessment should also reflect:a. that the wife’s diagnosis of Bipolar Affective Disorder is long-standing, and her mental health has been the subject of significant fluctuations regardless of her concerns about the FMH;b. that there has been a recent improvement in the wife’s symptoms following an increase in her medication; andc. that multidisciplinary support is in place to mitigate the impact of the court directing that the FMH be sold.[76]The evidence before me does not suggest that the ability of professionals to meet the wife’s specific care needs is dependent on her occupation of the FMH. On the contrary, her social worker makes the point that the condition and environment in which the wife lives makes it more difficult for those tasked with supporting her care. This is a very different scenario to a case in which a party may suffer from a physical disability and specialist adaptations have been made to allow independence or care in the home.[77]To my mind, a transfer to the wife with a charge back or a Mesher order offers little more than an illusion of fairness in either the short or long term. If the conditions for sale are to be the wife moving to a formal care setting or death, the husband will be left in a state of indefinite limbo at a point in his life when he might reasonably expect to enjoy a degree of certainty. There will be no backstop date to work towards, and there is a real chance that the value of his interest will depreciate if the wife fails to maintain the property.[78]Whilst he waits, the husband will be dependent on the uncertainty of the rental market and a reduced income as he approaches retirement. The promise of security one day will count for little. It is not an outcome that reflects the length of the marriage, the contributions that both parties made to it, and the fact that both have a need for secure accommodation that is no further away from the standard of living enjoyed during the marriage than is strictly necessary.[79]If the FMH is sold, both parties will have the opportunity to start afresh away from a property that has not met their needs for some time. I know this will be extremely difficult for the wife, and she will require the professionals involved in her care to assist and support her. That said, she will have the opportunity to purchase a property that may be better suited to her needs than the FMH appears to be, and be afforded the same level of social and medical care that she currently receives. From the husband’s perspective, he will be left with certainty that his income and housing needs will be met into retirement without undue pressure, and benefit from finality in respect of all matters pertaining to the FMH.[80]In terms of the division of the proceeds of sale, the wife’s health needs are reason to afford the wife a share greater than 50%. Whilst I acknowledge that the husband has made an unmatched contribution to maintaining the mortgage in recent years, it is imperative that the wife is left in a position to purchase a new home without the need for recourse to additional borrowing. If the anticipated net proceeds of sale are c.£260,000, £130,000 is unlikely to be sufficient on the basis of the property particulars before the court. The court is also conscious that the wife will have to contend with the Legal Aid Agency’s statutory charge (the wife’s Form H for the final hearing totals £18,500 – although it must be hoped that this will be deemed reasonable for deferment), and potential costs arising out of the appointment of a trustee or deputy, should this be necessary.[81]The husband’s position is different in that he does possess a mortgage capacity, even if the amount that would be realistic for him to borrow is far less than the maximum figure set out in the report before the court. I am satisfied that he has it in mind to continue working beyond his retirement as a courier, and will be able to meet reasonable mortgage payments for a period of time through both earned income and his pension.[82]On balance, I consider a fair outcome to be that the wife receives the first £150,000 or 57% of the net proceeds of sale, whichever is greater, with the husband receiving the balance. This would leave the husband with £112,000 should the FMH sell as valued. In all the circumstances, it is then reasonable to expect him to supplement this with a small amount of borrowing. This division will ensure that both parties are able to meet their housing needs with owned accommodation. I accept the property particulars provided on behalf of the wife (one or two bedroomed flats ranging from £130,000 to £150,000) as being suitable for both parties.

Conclusions:

[83]Whilst not without its difficulties, I am satisfied that this outcome is as fair as possible in all the circumstances.[84]I am conscious that a significant degree of planning will be required to put this order into effect, and that there must also be hope that time will allow the wife to come to terms with the court’s decision. For that reason, I consider it reasonable and realistic to defer the property being placed on the market for a period of eight weeks.[85]Otherwise, this is a case suitable for an immediate clean break in respect of both capital and income. I am satisfied that my order ensures self-sufficiency for both parties.[86]I shall hear submissions at the handing down of this judgment as to the precise detail of the order. I accept the representations made on behalf of the Official Solicitor that it will need to be as prescriptive as possible in the hope of avoiding the complexities associated with further litigation. HHJ Muzaffer