JH v AM [2004] EWHC 625 (Fam)
[10]The Law. Of course the Law is clear I must take into account all the factors set out in Section 25 of the Matrimonial Causes Act with my first consideration being given to the welfare of the parties’ son. I do not consider it necessary to enumerate all the subparagraphs of section 25 as they are so familiar to me. I pay particular regard to the length of the marriage, the fact that the parties were engaged in a number of joint ventures whilst undertaking their own business/professional careers. During the marriage they made an equal contribution to the welfare of the family – since separation the Wife has made a greater input in terms of N. Both parties are able to be self sufficient hereafter. I bear in my all the principles which are set out in White v White. It is my duty to apply the statute to ensure a fair outcome in the context of the facts of this case.[11]The Witnesses. I find that all the witnesses did their best to tell me the truth as they perceived it – that I have accepted some evidence in favour of other explanations must not be allowed to sour relationships further because the parties have to parent their son for many years to come.(a) The Husband. The Husband has done many things of which he should have cause to examine his conscience. I will not enumerate them further because I do not want to cause any blight on his career. His marriage ended in deceit and in his removing items from the home. I am sure that this affected his Wife’s perceptions of him. There were also omissions from his Form E and he wrote a letter to the property company St M in the course of these proceedings which was to say the least unfortunate in its wording. Despite this, he was by and large a truthful witness. I accept his evidence as outlined above. I do not consider that he gave me full details about E J’s assets – because he says that on advice he did not discuss matters with her. His coyness in this regard indicates to me that E probably has some capital which will may well be used to their joint benefit when this case is over. Of course, I make no findings about it – but bear it in mind as a background factor.(b) The Wife The Wife came across as basically a pleasant woman who had lost all trust in her former Husband. She has felt that she could not accept anything which he has put forward. She considers that his desire has been to have M P sold from under her and her parents and she has battled to save it. There is no doubt that she is a devoted and dutiful daughter and she has done her best to support her parents. She gave her father a Jaguar motor car in about 1999 (valued at about £17,000). She saved the farm for Mr and Mrs H - she would fight for them and her family if that is what was needed. All these are laudable qualities but they have coloured her approach to this litigation. Hence the fact that much of her evidence about M P seemed to me to be incorrect because she has convinced herself of the righteousness of her cause. I have no doubt that she is a good business woman and a good mother. In the latter regard, I think that she must be careful not to stifle N’s relationship with his father because, if she does, it will redound to her long term disadvantage – however bad a husband Mr M was he is the only father that N will ever have.(c) J H. She was pleasant and told the truth as she saw it - which was from a H perspective. She is a successful pharmacist and is to be admired for her achievements. I did not accept all her evidence for the reasons which I set out above but I do not blame her for the loyalty she displayed to her sister and father.(d) Mr B H. He is a proud man who has worked hard all his life. He has helped his girls to independence and he is proud of all of them. He must have been a good father as they appear to be devoted to him. He dislikes his son in law because he so clearly hurt his daughter. He has had to pick up the pieces over the years and so from his perspective Mr M can be seen to have many faults. This approach coloured his evidence – particularly as he thought his home was under threat.(e) Mr B gave clear and good evidence. His reports were careful and analytical. He was a good expert witness. Whether he should have been asked to carry out that degree of work is, to my mind, doubtful.[13]The schedule of assets is as follows:-Business assets
[1]Husband 67,700[2]Wife 216,500 Master company of Jewellers 3,900Joint names
[1]Former matrimonial home 169,500[2]21 The C 139,300[3]23 The C 137,350[4]Development land 110,000[5]35 E Street 56,100[6]M P Farm 204,500[7]Norwich Union Policy 28,600 £845,350 50% £422,675Husband
[1]A T Ltd 30,000[2]D Ltd 39,100* (mean)[3]Loan Account with D Ltd 28,500*[4]Shares(a) Swiss Life 4,900(b) Other shares 4,000[5]Barclays Bank (8,900)[6]Cars 2,000[7]Bond 1,200[8]Outstanding tax (41,500)[9]Arrears on H’s capital account with B’s (22,100) £ 37,200Wife
[1]One-half shareholding in P P Ltd nil[2]3 fields adjacent to MPF 19,300[3]Personal jewellery 2,000[4]Tessa 12,500[5]Halifax shares 2,000[6]Land at T 18,200[7]Land at P 8,200[8]Surplus in business bank account 17,100[9]Outstanding tax (14,300)[10]Credit cards (900)[11]Loan from Yorkshire Bank (26,000)[12]Loan from parents (3,800) £ 34,300 Pensions Husband £ 54,200 Wife £ 76,700108. On the basis of the net values of the assets the proper division of the joint assets is as follows109. Wife CGT cost110. Former matrimonial home 169,500 H (assume H the total £9,327)111. M P Farm 204,500 H nil112. 35, E Street 56,100 H £5,837 £430,100113. Husband114. 21 The C 139,300 W - 10,569115. 23 The C 137,350 W – 7,906116. Development Land 110,000 W – 21,073117. Norwich Union Policy 28,600 £415,250118. These figures show that the Wife has net assets worth some £15,000 more than the Husband but this fails to take into account, the fact that she will be paying more in Capital Gains Tax (H - £15,164 and W 39,548). The effect of this is to the benefit of the Husband by some £24,000 because it will reduce his ultimate liability by that amount as 50% of the properties values will be rebased for CGT purposes. In all the circumstances – because his pension is somewhat lower and because his business is prima facie worth less, I deem this slight advantage to be fair in all circumstances of this case. I note that in his final presentation Mr Brudenell on behalf of the Husband indicated that there would be no CGT on M P farm on its reduced value. Of course, it may be that the Revenue will deem that transfer to be at market value in which event the Husband will have to pay CGT – if this does occur then there will be no advantage in net terms as set out above. If this does occur then, I still consider that the overall outcome is fair. If it is of any assistance I find as a fact that the true value of the property – subject to Mr and Mrs H’s rights – must be discounted because it could not be sold on the open market. Its value is thus some £204,500.[14]That is the division of the assets and I will now consider arguments on costs and the precise terms of a draft order. As to which, I invite detailed submissions from Counsel.[15]Her ladyship made no order as to costs.