TF v SF [2025] EWHC 1659 (Fam)

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 and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.[2025] EWHC 1659 (Fam)Case No ZZ21D58773
IN THE FAMILY COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25 June 2025
Before
Mr Justin Warshaw KCsitting as a Deputy High Court Judge
Between
TFApplicantSFRespondent
Mr Brent Molyneux KC and Mr James Finch (instructed by HCR Legal LLP) for applicantMr Alexander Thorpe KC and Ms Saima Younis (instructed by Birketts LLP) for respondentHearing Hearing dates: 15, 16, 17, 18, 19 and 20 May 2025
Approved Judgment.............................MR JUSTIN WARSHAW KC

Mr Justin Warshaw KC:

[1]This is an application for financial remedies brought by Mr TF (hereafter ‘H’) following the breakdown of his marriage to Mrs SF (hereafter ‘W’). H was represented at this hearing by Mr Brent Molyneux KC and Mr James Finch. W was represented by Mr Alexander Thorpe KC and Ms Saima Younis. I'm very grateful to all four counsel for the manner in which they have conducted this hearing and for their very helpful oral and written submissions. I would also like at this stage to thank the parties’ solicitors, Ms Amy Walpole and Ms Emma Brunning for the diligence with which they have prepared for this hearing under a very tight timetable which I imposed at the pre-trial review.

Background – prior to separation

[2]H is in his early fifties and W is in her mid-forties. They met one another at the very end of the last century; at that time H would have been in his late twenties and W in her early twenties. At the time they met, W was working in customer services and H was working as a second-hand car salesman. W owned a terraced house which she had bought in 1999 for £79,000. I do not know what other assets W owned nor do I know what, if any assets, H held at that time. The parties began to cohabit in rented accommodation in about 2000, according to W, or about 2001, according to H. Nothing turns on the date of cohabitation nor indeed on the assets either party held at that date. In 2001, W gave up her then employment as a shop manager. She has not been employed since.[3]In February 2002, H’s father purchased a property for H as a 30th birthday present, on the basis that H would repay his father the initial capital investment on any future sale. The parties lived at that property. In about January 2003, the family business, ABC was incorporated. ABC bought, sold and rented heavy plant. The business had been established by the parties in the early 2000s. In the mid 2000’s, W sold her property for £163,000. She says from the proceeds she invested about £55,000 into ABC. This would appear from the joint chronology to be a disputed fact, but W was not cross examined on the topic, nor were any submissions made to me about this. I have no reason to disbelieve W and I find that she made this investment. This is hardly surprising; she was a shareholder and officer of ABC and H’s committed partner, being pregnant with their first child.[4]The parties have three children. The oldest, a girl, A, was born in 2004 and is now 21. Their second child, a boy, B, was born in 2005 and is now 19. Their third child, another boy, C, was born in 2009, and he is now 16.[5]The parties married in mid 2006, formalising the status of their committed relationship. That relationship was, what might be termed, traditional. H ran the family business and W ran the family home. Each in their own way made equally valuable contributions to their relationship, throughout its duration.[6]In about 2008, the parties acquired a second corporate entity which later changed its name, several times, eventually becoming, in 2019, DEF. I think both parties were originally shareholders in and certainly both were officers of DEF, at various times.[7]In June 2009, H’s property was sold. The agreed chronology tells me that the proceeds were used to repay H’s father, to fund a deposit on the family’s new home, ’The Family Home’, to pay for renovations on that property and to purchase GH a yard on an industrial estate as a business premises. The latter proposition is probably wrong as the transfer of GH is recorded in a Strettons valuation report dated August 2017 as having occurred in 2008, nearly a year before the sale of H’s property. I record this to demonstrate the difficulties that spouses inevitably have in trying to reconstruct the history of their marriages and the dangers of reliance on memory, even when the purported memory is agreed. My understanding is that the yard at GH was formally purchased within DEF. It appears to me that the distinction between ABC and DEF was an entirely legitimate but artificial means of dividing the business between trading company, ABC, and holding company, DEF. To the parties there would have been only one entity – the family business.[8]That family business was plainly prospering. The new family home, was a substantial five-bedroom Art Deco property. The family lived in it until 2015, when they moved into the annexe at the property in order to demolish and rebuild the main property. I have seen photographs of the renovated property. It is by any standard an attractive and prestigious c 6,700 square foot house. The parties lived in the four-bedroom, c 2,400 square foot annexe until 2017, when the family moved back to the main house.[9]The parties’ marriage was, on a least two occasions, rocky. In 2014, there were serious arguments between the parties and in 2018 there was a period of separation for five months. Both parties raised points about each other’s behaviour at these junctures in their written and oral evidence. Those issues are of no relevance to the enquiry I am conducting, but raising such matters seems to be an almost inevitable part and parcel of the dismantling of a very long relationship such as this.[10]W says that from 2016 ABC began to expand and H needed to travel away from home regularly. At some point between 2017 and 2019, the parties met Mr YZ. W puts the date early and H late in that period. It would appear that, in that period, or perhaps from 2016, ABC’s trade began to include decommissioning work dismantling heavy plant such as oil platforms and steel structures. In July 2020, GHI was incorporated. It was owned jointly by H and YZ. GHI undertook one decommissioning project, referred to as the P Project, which commenced in 2021.[11]In January 2021, machinery was transferred from ABC to DEF, with DEF settling the finance on those transferred assets. GHI rented some of that machinery for the P Project. In May 2021, LM1 Ltd was incorporated. LM1 was held in equal shares by H and YZ. In mid 2021, LM1 purchased LM2 from a property developer. LM2 owned LM, a port originally built or developed as a production site for oilrigs. Thus the transaction represented the purchase of a disused port facility. I will in due course revert to a more detailed account of GHI and LM1. That same month H purchased a Porsche for W as a birthday gift. The Porsche was purchased by DEF but it was quite plainly to be used by W and presented to her as gift in front of the children.[12]In the Autumn of 2021, the parties separated. W and the children remained living at the Family Home. H lived in his rented accommodation near NP and later in Mayfair, both paid for by DEF.

Background – post-separation including the litigation

[13]Within days of separation, H reduced the monthly funds that had been available to W. This was the start of a campaign launched by H against W. The campaign included demanding the return of W’s Porsche and other items kept at the family home but which technically belonged to DEF. W refused to return the Porsche and in December 2022 H brought proceedings against her in DEF’s name in the Central London County Court for its return. She eventually was compelled to return it. H now drives it. H also began paying inappropriately high sums to the children. There is no doubt that these actions were designed to put pressure on W. They also indicated that H would be approaching the parties’ divorce in an aggressive manner.[14]In November 2021, H applied to place ABC into administration. Given H’s approach to this litigation, W has remained very sceptical about this action. For reasons which I will explain in due course, I do not believe that this action was taken as a result of the divorce or to prejudice W. However, the unfortunate co-incidence of timing has to a degree caused W to focus on issues which are not of primary significance.[15]A few days later in November 2021, W issued a petition for divorce. A decree nisi was pronounced in the divorce suit in July 2022. These financial remedy proceedings, which flow from that suit, were issued by H in January 2022. He issued in the Chelmsford Family Court. I am told by W that H had agreed to issue in the Central Family Court, due to the complexity of the case. It was suggested that I should read something nefarious into H’s decision to issue in Chelmsford. I do not do so.[16]A first appointment was listed at the Chelmsford County Court in August 2022. The parties prepared for it. Forms E were served and questionnaires exchanged. The Forms E make interesting reading: H put his total net capital at £65,503 and W put hers at £3,319,093. H’s interest in LM1 was put at nil. In the first of a series of unfortunate events in the history of this litigation, the first appointment was cancelled. Despite the parties using the day for a roundtable meeting with counsel, nothing would appear to have been agreed to progress the case. With hindsight, that is a great shame.[17]In February 2023a private equity firm entered into a share purchase agreement with LM1, under which a small part of H’s interest in the company was sold for c.£1.2m. The balance of his shareholding was diluted down to 24%. The private equity firm agreed to invest $360 million into the project. The sale of these shares and the agreement was not disclosed by H.[18]In April 2023, the Chelmsford County Court notified the parties that the adjourned first appointment would be heard on September 2023. I pause to observe that the notice of hearing is dated January 2023 but was not supplied by the court to the parties until April. This is a serious deficiency but a far more serious deficiency is giving the parties a date more than twelve months after an appointment which had been cancelled by the court. I cannot explain this and can only apologise to the parties.[19]The first appointment was heard by District Judge O’Malley at the Chelmsford County Court in September 2023. That judge made directions for disclosure by questionnaire, for transfer to the Central Family Court and/or allocation to a High Court level judge if considered appropriate by the local lead judge, for the instruction of single joint experts to value the family home, real property held by DEF, chattels, held directly and by the companies, and the companies themselves, and for the listing of a hearing to deal with W’s unissued application for interim provision and further directions. H’s interest in LM1 was not to be valued as H had disclosed he was in negotiations to ‘exit’. He asserted at the hearing that his negotiations, the contents of which had not been disclosed, were covered by a non-disclosure agreement with the private equity firm. He was ordered to produce the NDA and a narrative explanation of the negotiations. He failed to comply with the court’s timetable for disclosure of that material. In the event, it transpired that there was no NDA.[20]In October 2023, H entered into an agreement for the sale of his shareholding to the private equity firm. Under the agreement, H was to receive a total of £29.5 million, with £20 million payable immediately and £9.5 million deferred for two years, to October 2025. The £20 million was paid to H on 25 October 2023. Meanwhile, on 16 October 2023, Judge Gordon-Saker, the local lead financial remedies judge, refused the request to transfer the case to London and directed the case to be listed in Cambridge before a judge with a financial remedy complexity ticket. She also made directions for the filing of any application by W for interim provision.[21]On 10 November 2023, H’s solicitors wrote to W’s solicitors and advised them that the transaction for the sale of H’s shares in LM1 had been agreed and completed. They enclosed a heavily redacted version of the agreement. This does not appear to have given any figures for the transaction. On 15 November 2023, W issued an application for interim provision in accordance with Judge Gordon-Saker’s direction. On 22 November 2023, W issued an application for a freezing injunction in respect of the proceeds of the sale of the LM1 shares. That application came before Judge Spinks at a hearing on 27 November 2023, without notice to H. I understand that it had not been W’s intention to ask for the hearing to be heard without notice. The judge nonetheless made an order freezing the proceeds and listed a return date on 13 December 2023.[22]On 6 December 2023, H served his answers to questionnaire. It was about three weeks late. The letter of instruction to Ms Hart of Quantuma, the single joint expert appointed to value the business was sent to her on 7 December 2023, some two months late.[23]On 13 December 2023, Judge Gordon-Saker heard the return date of the injunction. H’s statement disclosed only the initial payment of £20 million. H explained that it was his intention to invest £19,514,750 into various projects, i.e. the whole of the liquid receipt was to be transferred into largely illiquid projects. At the hearing, Mr Molyneux KC explained to the court that there was an additional payment of £9.5 million due in October 2025. This would have been clear had H disclosed the agreement. The judge ordered that £3 million should be held in escrow and a further £4 million should be charged against a second port which H had indicated since August 2023, that he intended to purchase. In the event that the purchase of the port did not proceed, H was to pay £4 million into the escrow account or offer equivalent security. H was ordered to pay the costs of the on-notice hearing but not attendance at the without notice hearing.[24]On 8 January 2024, W’s application for interim provision was heard by Judge Robin Chaudhri. He recorded his indication that Mr Justice Peel should consider (or possibly re-consider) allocation to High Court Judge level. He also recorded the parties’ intention to have a private FDR before Mr Nigel Dyer KC in May 2024. He recorded various agreements about interim provision and ordered H to pay W maintenance pending suit in the sum of £227,400 per annum or £18,950 per month and provided for W’s legal fees to be drawn from the frozen escrow account including £88,708 to repay a loan to Level, £87,000 to cover costs to the private FDR and £30,381 for the costs of the interim provision application. He directed that there be a 1 hour hearing before him after the private FDR to reconsider legal costs provision.[25]In March 2024, H’s solicitors wrote to say that the negotiations for the purchase of the second port were taking longer than expected. On 8 April 2024, Judge Gordon-Saker ruled that in the event the second port deal was not proceeding then £4 million should be paid into the escrow account. On 1 May 2024, H purchased a property – “H’s property” for £3.4 million. On 28 June 2024, the case was transferred to London and allocated to the High Court Bench. On 27 August 2024, the mortgage on the family home was discharged using money from the escrow account. At some point after the purchase of H’s property, H informed W that the second port transaction would not be going through and he offered a charge on H’s property or GH, DEF’s trading premises. Unsurprisingly given that H’s property was unhabitable, due to works H was carrying out, it could not be charged and W was, sensibly, not minded to accept a charge over GH given that it was not part of the £20 million receipt and a charge over it would represent a loss of security.[26]On 17 September 2024, the court listed a hearing on 12 December 2024. The case was at some point after 17 September 2024 allocated to me. This final hearing was listed in my diary at some juncture soon after that allocation. On 8 October 2024, W issued an application for H’s committal to prison for his failure to pay the additional £4 million into the escrow account. The application was served on H on 16 October 2024. The process server who served him has made a witness statement in which he accuses H of assaulting him when he served the application. On 11 November 2024, H paid the £4 million into the escrow account. On 6 December 2024, W issued an application for an order for provision for legal services and other directions.[27]The matter came before me on 12 December 2024. I recorded the parties’ agreement to attend a private FDR on 24 March 2025 and I directed that:a. W should set out any allegations of conduct upon which she sought to rely by 1 April 2025;b. H should provide Ms Hart, the business valuer, with an update of fixed assets;c. The liquidator of ABC should provide Ms Hart with the information she had requested with the liquidator’s costs being met from the escrow account;d. Ms Hart’s report should be served by 7 March 2025;e. The chattels valuations should be re-timetabled;f. There should be a pre-trial review before me on 11 April 2025; andg. A further £400,000 should be made available to W from the escrow account for legal costs. I noted in my order that a final hearing was listed before me on 15 May 2025 for 7 days. This had been in my diary for some time at this point. In addition, I made an order by consent that H pay £12,567 towards W’s costs of the committal application on the indemnity basis agreed in the sum of £12,567.[28]On 19 March 2025, H made an application in respect of the instruction of the chattels expert. On 4 April 2025, W made an application for a production order for an order that the private equity firm produce their copy of the October 2023 agreement on the basis that she had heard H had sold his shares for £60 million and not £29.5 million. She also made an application in respect of failings she alleged that H had made when updating his disclosure. On 7 April 2025, H obtained the original contract from the private equity firm which demonstrated that H had not doctored the document and that he had indeed received £29.5 million. On 9 April 2025, H made an application to lodge extended bundles at the final hearing. On the same day, Ms Hart complained about H’s aggressive manner when he was on the telephone with her associate.[29]On 11 April 2025, the matter came before me for the second time for the PTR. The case was in a sorry state. Ms Hart’s report had not been produced. This appeared to have been caused by an impasse over the valuation of chattels. There was no agreement about the tax consequences of the payment of £29.5 million. There had been no FDR. Mr Thorpe KC’s note for that hearing informed me of the emotional turmoil suffered by the family. I was informed of the very difficult circumstances caused by the children’s behaviour. Despite this, Mr Thorpe KC’s note indicated that his client would be seeking an adjournment of the trial. I was surprised on the morning of the hearing that Mr Molyneux KC joined Mr Thorpe KC’s cause. At the start of the hearing, H refused to come into court. I suspect that this was because he was so dismayed that there might be an adjournment.[30]The financial proceedings had begun in January 2021. At the time of the PTR, three years and nearly three months had passed. It was plain to me that this family needed resolution of this case as soon as possible. I made it very clear that, so long as Ms Hart could report in time for the final hearing, I would not be adjourning it. In order to achieve this, I dispensed with the chattels valuation on the basis that Ms Hart would use cost price for the chattels owned by the companies and I would allow the parties to make submissions and put forward alternative valuations based on alternative approaches to the value of the chattels. I also made it clear that, in the event either party disputed Ms Hart’s valuation, either party could make a Daniels v Walker application and, if successful, I would consider an adjournment of the final hearing.[31]It is unusual to allow a case to proceed to a final hearing without the parties engaging in an FDR. The timetable I imposed did not allow sufficient time for an FDR but I required the parties to attend a roundtable on the first day of the trial which was set aside for my reading. I was quite sure that, if there was any hope of settling this case, Mr Molyneux KC and Mr Thorpe KC would achieve that end. I have no doubt that my decision to dispense with an FDR was the right course of action in this case. My order also recorded and/or directed the following:a. That H should evidence the tax payable on the payment of £29.5 million;b. That H should comply in full with his obligations under my previous order for updating disclosure;c. That H should comply with all reasonable requests made by Ms Hart for documents and information;d. That Ms Hart’s report should be served by 25 April 2025, with questions on the report by 30 April 2025 and answers from Ms Hart by 7 May 2025;e. That the parties should supply one another with photographs of all watches;f. That W should amend her points of alleged conduct by H by 30 April 2025;g. That the parties should serve s25 statements by 9 May 2025; andh. That the parties should exchange open proposals by 9 May 2025.[32]As I was putting so much pressure on the solicitors to enable the case to proceed to final hearing, I took the unusual step of allowing unlimited length bundles. I was concerned that arguments about the contents of the bundles might distract preparation of the case. I also directed that I was to be informed by counsel of any slippage in the timetable. I am pleased to report that the only slippage in the timetable was a five-day delay in service of W’s points of alleged conduct and a consequent three day delay in service of the s25 statements. All other directions were complied with on time. No applications were made by either party for any further expert evidence.[33]And so, the final hearing commenced on 15 May 2025. I had one day set aside for reading. I was supplied with a core bundle comprising 1205 pages, an experts bundle of 251 pages, a bundle of material relating to Ms Hart’s report amounting to 422 pages, a bundle of ‘preliminary documents’ running to 91 pages, a bundle of exhibits and miscellaneous documents amounting to 7321 pages and a bundle of authorities which reached page 979. I make the total page count 10,899 pages. In ‘old money’, I make that the equivalent some 31 lever arch files. I will not pretend I have read them all. I told the parties at the PTR that I would concentrate my reading on the core bundle and expert material and that I would expect other material to be used in cross examination and referred to in submissions. Although this represents an absurd amount of material to put before the court, I have no doubt that, even without argument, any attempt to reduce the material to a manageable quantity would have likely run the risk that the bundles would not have been ready in time for the final hearing and/or other important issues might have been neglected and the fixture lost. I am most grateful to H’s solicitor, Ms Walpole, for arranging three iPads for use in the witness box, which enabled the witnesses to navigate these enormous bundles with relative ease. It seems to me that iPads, or similar tablets, should be used in all final hearings. They are much easier for witnesses to use than laptops or old fashioned paper bundles.[34]Turning to the costs occasioned by the proceedings, the Forms H1 show that H’s legal costs amount to £693,365 including VAT and W’s amount to £751,434 including VAT. The total costs are therefore £1,444,799. These are extremely high and many judges have made many comments about the disproportionate size of costs in financial remedies. I do not need to add to the cannon of those comments but I pause to note that in this case the costs are roughly 5% of the assets as I will in due course find them to be and that, in the wider world, and in other more commercial contexts such as the sale of businesses, it is not unusual to see fees at this level or indeed higher. In this particular case, for instance, the parties agree that the costs of selling their real property will be 3% of the value. The simplicity of such a transaction is incomparable to the complexity of litigating this case.[35]At the hearing, I heard oral evidence from H on Friday 16 May and Monday 17 May and from W on Tuesday 18 May. Ms Hart gave evidence on Wednesday 19 May. I heard submissions on Thursday 20 May. I reserved this judgment, which I circulated in draft on Tuesday 27 May 2025. I received corrections from the parties on 9 June 2025 and with those corrections five issues were raised by H’s legal team. I received written submissions from the parties on the five issues on 18 June 2025. My rulings on those issues are incorporated into this judgment which I formally handed down by email on 25 June 2025.

The witnesses

[36]H presents as a confident, charismatic and charming man but he is also an intimidating person. When cross examined about his alleged assault of the process server, he told an illuminating story about an attempt made by two Algerian street robbers to mug him in Mayfair. They were, as is not uncommon in that area, interested in taking his watch. They did not succeed and he told me that they came off worst. He explained that, if he had assaulted the process server, ‘he would have known it’; his implication was that such an assault would have been far worse than that described by the process server. The police were called by the process server. They took no action against H. On the balance of probabilities, I find that H did assault the process server as described by the process server and that he did so because he was so angry with W and so frustrated by this litigation.[37]It was also interesting to see how H dealt with cross examination which demonstrated that he had lied. He was taken to his statement made in answer to W’s application for interim provision. In one paragraph he rebutted allegations made by W about holidays he had taken. In his written evidence he said:
‘h. Ibiza, Mid 2022 — Friend’s wedding – I only paid for the flights the hotel was paid for as part of the wedding’
Mr Thorpe KC took him to bank statements which demonstrated that some £13,000 had been spent by H on a hotel in Ibiza at that time. H explained that was entirely consistent with his written evidence which only addressed the stay in the hotel paid for by the hosts. It was a masterclass by H in what might nowadays be termed ‘gaslighting’. He said it calmly and seemed convinced that I would consider it a true answer. In the same context, i.e. holidays, he told me several times that, if W had told him she wanted to go on nice holidays, he would have paid for them. He explained that she didn’t ask so that he could be cross examined about this failing. I do not accept either proposition.[38]I have absolutely no doubt that H came to court to present to me what he considered to be a favourable case rather than simply telling me the truth.[39]W was a confident and dignified witness. She was able to hold her ground in cross examination. As a result of the manner in which H has litigated this case, she has approached certain topics such as H’s alleged conduct in a muddled way. Many of her allegations are not credible or sensible and it is a shame that she has been unable to let go of the more obviously absurd elements of her case. Her belief about H nefariously moving assets from ABC to DEF makes no sense. Her application for a production order made prior to the PTR was nonsensical. However, standing back from some of these points and looking at W’s evidence in the round I found her to be an essentially honest witness who came to court to tell me the truth. In all most every respect, save those which I will identify later, I find that, where H and W’s evidence is different, I prefer W’s account.[40]Ms Hart’s oral and written evidence was, as one might expect, of the very highest quality. She identified in her report the many shortcomings it contained as a result, largely, of H’s failure to supply her with information. I am very grateful to her for her helpful evidence and explaining to me how I might adjust her report to allow for my findings as to the value of various chattels and/or items on the fixed asset registers.[41]I will turn now to a number of matters which I must address before dealing with the computation of assets, the parties’ open positions, how I should approach the funds received by H from the sale of his LM1 shares and the outcome which I will impose.

The children

[42]The parties three children are aged 21, 19 and 16. The youngest is, of course, my primary consideration but the older two are still part of this family. It is quite clear to me that both parties have always wanted the very best for their children. All three were born at a private hospital and all three have attended private schools. All three have had problems with education and all have at various times been invited to leave school. W described this as expulsion. H was at pains to present is an invitation to leave. It seems to me that this is a distinction without a difference.[43]A lives with W. She was asked to leave her school in 2020. She was home schooled successfully by W. B, the middle child, has been diagnosed with severe ADHD and mild dyslexia. He has found the breakdown of his parents’ marriage very difficult. He has exhibited severe anger, frustration and fear. He was asked to leave his school in 2018 and boarded for a year at a school elsewhere. He was asked to leave that school in 2019. He too was home schooled by W and was able in that environment to achieve acceptable GCSE results. For a period he worked as an apprentice for H. This broke down after less than three months following an altercation between him and H. Until July 2022 he was living at home and neither working nor attending college. In July 2022, he began an apprenticeship at DEF. In about December 2023, H rented a flat for him in London. He lived there for about four months and then returned to live with W. At some point this year, he had a serious fight with C at home. A called the police. Since then, B has lived with his girlfriend. W believes that it is likely that B will return to live at home soon. I have no reason to doubt her belief. C, too, suffers from ADHD. He has been asked to leave school and is currently being home schooled by W.[44]Save for the brief period that B lived with H, W has had the lion’s share of the task of looking after the children since separation. It has clearly not been an easy task. Unfortunately, that task has been made more difficult by action taken by H since separation. During the period that H was reducing and restricting funds available for W, he made significant gifts to the children and paid them very high sums of money either directly or through DEF. In the period from October 2021 to July 2023, A and B received over £50,000 each and C received almost £20,000. The payments have continued since July 2023. A and B had company fuel cards. W’s was taken away by H. B received a Rolex worth about £20,000 for his GCSE results. A was given a £13,000 bangle for her birthday and a Mercedes. B received a Land Rover Defender. These are just a few examples. I find that H deliberately made these payments to the children and gave them these gifts to humiliate W.[45]When I come to consider the outcome of this case, I will remind myself of the significant contributions W has made since separation to this family by providing as stable a home for the children as she was able, in circumstances where H chose to take action which undermined harmony in that home.

Standard of living

[46]There appeared to be some dispute about the standard of living enjoyed by the family during the marriage. It was not entirely clear to me what relevance this had to the case.[47]It is clear that the parties enjoyed a high standard of living throughout the marriage. The children were educated privately from the age of 3. They were all born at a private hospital. The family home purchased in 2009 was, even before its renovation, a prestigious property. The family went on luxurious and long holidays. H plainly worked very hard to pay for all of this.[48]In cross examination, H was taken to various bank statements and loan accounts which demonstrated that since separation he has enjoyed a very high standard of living, dining at high end Mayfair establishments and taking many very expensive holidays. It was suggested by Mr Thorpe KC on W’s behalf that H had failed to comply with the court’s order that all bank statements and credit cards should be supplied from 1 July 2019. H failed to supply those which were held in the name of GHI on the basis that they would have to be obtained from the administrators. It would appear that H made no effort to obtain these. I’m not sure how much they would have helped me. I have no reason to disbelieve the account W gave of the standard living, including regular parties at home entertaining 100-200 people at a cost of £15-20,000, regular visits to high end restaurants where the parties enjoyed wine at £400-£500 a bottle, regular holidays at 5 star resorts and the use of expensive cars throughout the marriage.[49]It was quite clear from H’s own expenditure since separation that this was how he expected to live. He is a man with a view as to which table one should sit on at Scott’s and a man who clearly cherished his relationship with the proprietors of Le Gavroche. These were clearly not newly acquired attributes.[50]I have no difficulty in finding that this family enjoyed a very high standard of living.

Interim provision

[51]Equally, I have no difficulty in finding that, from separation in September 2021 until Judge Robin Chaudhuri made his orders for interim provision in January 2024, H failed to make proper and appropriate provision for W’s expenses. Throughout most of this period, DEF was in receipt of very high income from LM1 and H was able to spend as much as he wanted on his living expenses.[52]During the marriage, W received a weekly payment of either £1,000 per week or £1,250 per week. In addition she was able to charge items to H’s Amazon account, which amounted to about £433 per month, she had use of a credit card on which she usually spent up to £4,000 per month, she had access to cash from the safe of £1,000 per week, all her car expenses were met by H or DEF, including the use of a fuel card and all outgoings on the family home were met by H or DEF. H also met the costs of the housekeeper and gardener.[53]On separation, H stopped paying the cash element, the Amazon account use, the credit card, the fuel card and reduced the direct payments. The gardener was reduced from 5 days a week to one day a week. The utility bills were unilaterally transferred into W’s name and W was required to present them to H for payment. She was given nothing for holidays and did not enjoy one until 2024. This was all at a time when H was spending lavishly on himself and the children.[54]I have already alluded to H’s answer about the Ibiza holiday but I will take one more example of H’s responses. In his statement in answer to the application for interim provision he said:
‘During the marriage we had a gardener 2 days per week for 1 year, there was a 6-month period where it was more frequent to landscape the garden only.’
In oral evidence he admitted that this was untrue, that the gardener had worked for many years and was full time. He sought to explain away his written answer by joking that the gardener didn’t work very hard.[55]In May 2022, H’s accountants wrote to W telling her that the weekly receipt she had been receiving from DEF was in fact consultancy income and not PAYE (as it had been). This was designed to make her pay tax on the receipt from separation. H asserted through his solicitors on 6 October 2022 that this had been communicated to her by H directly on 1 October 2021, they enclosed a letter bearing that date to evidence this. However, it is clear from an email dated 23 May 2022 from H’s accountants to H that the October letter was not drafted until May 2022. I find that in May 2022, H decided to make this alteration to apply more pressure on W and gave false instructions to his solicitors to cause them to insinuate that he had sent W the letter in October 2021.[56]I have no doubt that H deliberately chose to put W on short commons at a time when he had access to and control of all the family wealth. I find he did this out of his anger with W and I find that it illuminates his attitude to W and what he perceives to be her rights to the family wealth.[57]When I come to consider outcome in this case, I will bear in mind that at a time when W was trying to provide the children with a stable home, H undermined her from so doing by failing to provide her with fair and adequate interim provision. I remind myself that I am not here to punish either party nor do I take H’s behaviour in this regard to be conduct relevant to the section 25 exercise. But I consider that this is a factor to bear in mind when I consider each party’s post separation contributions.

Allegations of non-disclosure

[58]Parties to financial remedy claims have a duty of full, frank and clear disclosure. H’s disclosure in this case has not always complied with that duty. His Form E disclosed gross income for the next 12 months of £155,000 gross. That assertion came nowhere near to giving a complete picture of the annual funds to which H had access. His Form E budget excluding mortgage payments was put at £7,604 per month or £91,248 per annum. It was quite clear in cross examination that H spends at a far higher rate than this. Some of the documents provided by H with Form E appeared to make no sense. The schedules accompanying his tax returns did not match the figures in the body of the returns. Calculating H’s true income is very hard as so much of his life, including historically the mortgage at the family home, is treated as a company expense.[59]H was ordered to supply bank statements and credit cards going back to July 2019. He failed to provide statements from ABC, blaming the liquidators but he did not produce material from them explaining why he was not able to obtain the statements.[60]In his answer to the schedule of deficiencies, H claimed that money paid to W prior to separation was treated as part of H’s dividends. This was a lie. There are no corresponding entries on the director’s loan account and W was on PAYE.[61]H’s presentation of the value of LM1 at nil in his Form E was at best misleading. He must have had a view of its value, yet he gave none. He provided no documents relating to the purchase. His statement produced in answer to the freezing injunction failed to mention the £9.5 million payment due in October 2025. Earlier he refused to give details of the negotiations to exit on the basis he was subject to an NDA. This was untrue.[62]Ms Hart’s report identifies its own significant deficiencies which have arisen because of material provided or not provided to her by H. She has no proper financial information after 31 December 2023. H has stopped creating management accounts for DEF because, he says, they were only produced because they were required by the mortgagees of a charged property. I find this an unlikely proposition.[63]Ms Hart’s report identifies that JKL, an entity set up by H since separation, owns a pub purchased for £400,000. Ms Hart has used the purchase price for current value. She has been given no information from H about his plans for the property.[64]Ms Hart relied on a valuation of a property owned by DEF. The valuation was without planning permission. During his cross examination, H produced planning permissions relating to the property. These were dated May 2025. This only arose as an issue because W had produced a photograph of a lamp post with a planning application sign dated January 2025. I have no doubt H would not have mentioned this had W not produced the photograph.[65]In cross examination of H and Ms Hart, Mr Thorpe KC attempted to demonstrate that the company accounts produced by reputable accountants were false. He did this by reference to underlying bank statements and attempted to show that the true tax payments and turnover did not actually match the assertions in the accounts. It is in my view impossible to undertake such a task without setting out the allegations in advance and enabling the person against whom such allegations are made to consider them with advisers, whether lawyers or accountants. This attack was not foreshadowed in the points of conduct raised by W and should not have been pursued and I make no findings about these points.[66]So, I have here before me a man who has been lax with his duty of full and frank disclosure. What approach should I take? I remind myself of Moylan LJ’s guidance in Moher v Moher [2019] EWCA Civ 1482. To paraphrase that guidance, I must determine the resources of the non-disclosing party and when undertaking that task I am entitled to draw such adverse inferences as are justified by the nature and extent of that party’s failure engage with the duty. I must not engage in pure speculation and I must only draw inferences which are proper and reasonable. I will deal with the impact of H’s non-disclosure, as I find it to be relevant, when I come in due course to make my findings as to the value of the parties’ resources when I reach the computational phase.

Allegations of conduct

[67]At the hearing last December, I directed W to set out her allegations of conduct under s25(2)(g) in advance of the PTR. I made that direction in accordance with Peel J’s decision in Tsvetkov v Khayrova [2023] EWFC 130. As Peel J said in that case at [43], a party asserting conduct must prove:
‘i) the facts relied upon; ii) if established, that those facts meet the conduct threshold, which has consistently been set at a high or exceptional level; and iii) that there is an identifiable (even if not always easily measurable) negative financial impact upon the parties which has been generated by the alleged wrongdoing. A causative link between act/omission and financial loss is required …’
He went on at [46] to explain that the reason for this requirement is that:
“…[a] party who seeks to rely upon the other’s iniquitous behaviour must say so at the earliest opportunity, and in so doing should; (a) state with particularised specificity the allegations, (b) state how the allegations meet the threshold criteria for a conduct claim, and (c) identify the financial impact caused by the alleged conduct. The author of the alleged misconduct is entitled to know with precision what case he/she must meet.”
[68]Peel J suggested that this process should occur as early as possible. However in this case, W’s allegations of conduct had limped on without being properly pled. I hoped by making my direction the conduct case would either be dropped or properly articulated.[69]At the PTR, I was presented with an initial draft which was part conduct pleading and part allegations of non-disclosure. I gave permission for the document to be amended once Ms Hart’s report had been served. The amended document is a mixture of generalised complaint about non-disclosure and allegations of conduct. I will deal with each numbered allegation in turn:a. Paragraph 1 sets out very general complaints of non-disclosure. It would have been far more helpful for W to specify with greater particularity her complaints.b. Paragraph 2 complains about H’s failure to make proper interim provision and his tactics in this area. This is a perfectly proper complaint but it does not amount to conduct under s25(2)(g).c. Paragraph 3 relates to action taken by H in respect of ABC assets and their onward transfer to DEF. I will deal with this below.d. Paragraph 4 relates in part to the ABC assets and in part to disclosure of the fixed assets register. The latter is a disclosure issue. The former will be dealt with below.e. Paragraph 5 relates in part to the ABC assets and in part to disclosure generally.f. Paragraph 6 relates to disclosure of documents relating to the LM1 sale.g. Paragraph 7 relates to H’s statement in response to the freezing injunction failing to disclose the £9.5 million payment due in October 2025.h. Paragraph 8 asserts that H has been ‘reckless and wanton in his custody’ of the funds received from the sale of LM1 which were not frozen.[70]I cannot in any of those paragraphs see any behaviour which amounts to conduct within the meaning of s25(2)(g). They are a series of allegations which largely amount to generalised non-disclosure and possibly in respect of paragraph 8 some species of ‘add back’. As to the ‘add back’, this was not pursued in submissions at the end of the case. It is quite clear that the whole of the LM1 funds are accounted for in the disclosed capital.[71]This leaves the issue relating to ABC. I can deal with this relatively swiftly. It is tied up with suspicions held by W about various changes to the structure of ABC and DEF. W was originally a shareholder in ABC and possibly DEF. I accept H’s account of the history of the changes which put simply amounted to a decision to put the family home in W’s name and ABC and DEF in H’s name. This occurred long before the breakdown of the marriage and was to protect the family home from the business’ creditors. There is nothing surprising about this decision nor do I see anything nefarious about the fact that various documents were executed by H to achieve this and that in those transactions he signed W’s signature. He admitted this in the witness box. I do not find this to be surprising and it is not unusual in my experience.[72]At some point prior to 2019, ABC entered into 16 hire purchase agreements with a hire purchase company. In August 2019, the hire purchase company issued termination notice in respect of those agreements because ABC had defaulted on payments. In September 2019 a statutory demand was issued against H and winding up proceedings against ABC later that month. In October 2019, H, ABC and the hire purchase company entered into a settlement agreement. The hire purchase agreement were given a £400,000 charge over DEF assets and H gave fresh guarantees for £2.015m. H failed to meet the payment schedule and further agreement was reached in February 2000. Under that agreement H was to sell equipment and a Porsche to reduce indebtedness.[73]In July 2020, H and YZ incorporated GHI. GHI was used as a vehicle for one decommissioning project, referred to as the P Project. I have no doubt that this was(a) a sensible way of channelling what would otherwise be ABC trade away from the hire purchase agreement and(b) that YZ had a real role in the deal. Even W agreed that YZ brought skills to the table which H did not have. In December 2020, the hire purchase company presented a further winding up petition against ABC. In January 2021, H transferred assets from ABC to DEF. He asserts that this was legitimate as DEF was a major creditor of ABC, this is borne out in the accounts. From the family’s perspective it saved valuable assets from being taken by ABC’s creditors. ABC was put into administration in November 2021.[74]The timing of the administration plainly caused W enormous alarm. The trading arm of the family business had disappeared. H had set up a new company, GHI, with YZ and ABC’s assets and operatives, now owned or employed by DEF, were seen on the P Project and at LM. This may have looked alarming, but it was not. H had traded through a difficult period and reorganised his ventures. The hire purchase company debt had been resolved and the future was rosy. W should not have raised conduct.[75]And so I now turn to the computation of the assets.

Computation of the assets

[76]Mr Finch and Ms Younis have worked hard during the trial to produce an agreed ES2, which has changed during the course of the hearing. My findings on the value of the parties’ resources are as follows:a. The Family Home – this has been valued on a joint instruction by Mr Gulvin of Strutt & Parker. He values the property at £3.5 million. There is currently an application by the National Grid to erect pylons near the property. Mr Gulvin says that if permission is refused for the pylons the value would rise to £3.9 million. Mr Finch, who made submission to me about the ES2 on H’s behalf, says that W has no plans to sell and that I should take the mid-point between the current value given by the SJE and the value if the pylon issue goes away. I disagree. I am appraising the value of the assets at trial. It is a matter for W as to whether she keeps or sells the property. I take its value at £3.5 million, giving net equity of £3.395 million.b. H’s Property – H bought this property for £3.4 million in 2024. Ms Younis’ diligent examination of banking records on behalf of W shows that £1,293,163 has been spent on the property. Mr Thorpe KC on W’s behalf says I should add that to the value of the property. The problem with that approach is that it double counts H’s directors loan account with DEF. Mr Finch on H’s behalf says I should add £522,659 to the value which has in turn been deducted from the amount outstanding to H on the loan account. I agree with this approach. I take the net value at £4,029,972.c. Bank accounts – There is no dispute here. I take H’s accounts at £1,887,870, W’s at £22,588 and the joint escrow account with the balance of the frozen funds at £5,037,784.d. DEF – H’s loan account is agreed at £5,395,122. I will deal with value of DEF below.e. Other loan accounts – H’s JKL loan account stands at £740,466 and NMO loan account at £578,000. These represent property investments made by H. These values may be understated as they take no account of planning permissions and general plans for the investments.f. LM money – This is £9,478,913 due in October 2025. There is £5,998,791 tax due on the total payment. I will deal with the penalties and interest below.g. Chattels – I take for both parties each party’s assertion as to value save in respect of H’s number plate. He proposes a value of £300,000. He told Ms Hart it was worth £450,000. I take his assertion of value as given to Ms Hart. H’s chattels are therefore £600,500 and W’s chattels £107,095.h. Credit card debt – H has credit card debt of £52,782.i. Outstanding legal costs – W’s stand at £259,211 and H’s £163,436. I think that the parties agreed at the end of submissions that W was free to take the whole or part of her outstanding fees from the joint escrow account.[77]I turn now to the value of DEF. Ms Hart valued the business net of tax at £4,673,908. She valued it on a net asset basis and used the cost price for the value of assets on the fixed asset register. She did this because at the PTR the parties had reached an impasse as to what values should be taken and how the valuations were to be obtained. The fixed asset register contains plant and equipment taken by Ms Hart at a value of £2,974,366, watches with a value of £793,450, office equipment at £27,918, cars at a figure in excess of £3m and number plates with a value of £360,000. There are a number of problems with the figures used by Ms Hart at my direction. The first is that the cost price of many items of plant/machinery are recorded as the figure paid by DEF to repay outstanding hire purchase debt, the second is that the value of cars and watches are understated and third the number plate figure includes H’s number plate, which is in fact held directly by H. H provided Ms Hart with estimates of the value of the watches, cars and number plates. These were generally much higher than the purchase figures. In cross examination, H suggested that some of his figures were too high. I do not accept this. I take the figures he gave to Ms Hart. Mr Thorpe on behalf of W says that I should adopt the sale price of the machinery as shown on the DEF website. I accept that proposition. Adopting the figures set out in ‘Fixed Asset Register FINAL’ presented in closing by Mr Thorpe KC and Ms Younis, my findings as to the value of the fixed assets are that the value of the plant is £3,943,500, the investment watches £824,500, the vehicles £3,519,381 and the number plates £87,000. Making those adjustments to the cost price in the fixed asset register and taking into account the taxation consequences which Ms Hart explained adjusts the value of the fixed assets upwards by £1,312,770. Mr Molyneux KC has provided me with a recalculation of Ms Hart’s valuation taking this adjustment into account which gives a valuation of DEF at £5,671,615.[78]After circulation of this judgment in draft, Mr Molyneux KC and Mr Finch raised an issue in respect of an HSBC mortgage charged on the business premises at GH in the sum of £679,487. Mr Molyneux says that the existence of this loan was known and acknowledged by both parties at various times during the course of the proceedings. However, it was not included in the company accounts as a liability and therefore ignored by Ms Hart. H has now provided a letter from the company accountants dated 9 June 2025, after submissions were made, which says in terms that the value of the company value is overstated by omission of the mortgage liability. Mr Molyneux KC has provided me with a recalculation of the business taking into account this liability. In a different case, I might have been persuaded to take this into account, despite the issue being raised so late in the day. However, in this case the reliability of documents produced by H in respect of the business has been to say the least deficient. Mr Thorpe KC reminds me that in oral evidence H maintained that the reason no management accounts had been produced was because the HSBC mortgage had been repaid. In addition, Mr Thorpe reminds me that there were serious deficiencies and discrepancies in the paperwork demonstrating payment of tax. While it would appear that this mortgage has been overlooked, there are so many issues relating to the true value of DEF which have been deliberately obscured by H that I will not take this liability into account. I therefore make no deduction to my finding of the value of DEF at £5,671,615.[79]Is this unfair to H? No, it is not. DEF had over £1 million in revenue in 2024. It has traded for a further 5 months. I have no figures for what profit may have been achieved through this revenue, because H has not given them to Ms Hart. H gave evidence that there were about 250 items of stock at the yard. This is significantly higher than the number on the register which is not much above 100. Historically DEF or ABC rented machinery to third parties. This has stopped. I have no idea what rental income might be achieved from the stock of machinery and Ms Hart has not been able to investigate this. If anything, taking a figure of c.£5.6 million is unfair to W and not to H.[80]H’s accountant says that there are likely to be penalties and interest of £410,678 arising on H’s failure to include the tax on the LM1 transaction in the return he made this year. H has given no cogent explanation of his failure to make this return and to pay the tax. It was reckless of H not to make provision for this tax liability from his receipt of £20 million. I find he did so in the belief that it would somehow help him in these proceedings. I will therefore ignore this liability in my computation of the assets.[81]Mr Molyneux KC and Mr Finch say that I should take into account £5,304,043 as a potential liability arising from the liquidation of ABC. This is the total of unpaid creditors and costs. This issue arises because the liquidators have asserted that £9.5 million worth of assets were improperly transferred from ABC to DEF. The liquidators reported the issue to the Essex Police who investigated but took no action. In his statement in answer to the application for a freezing injunction, H downplayed this issue and said: Whilst the accounts of ABC indicated assets of £9.5m, this was based on a historic fixed asset register and does not take into account that ABC disposed of a lot of its assets over time in an attempt to trade through the COVID lockdown. The Insolvency Service has been provided with, and has accepted, full explanation for the whereabouts of all of ABC’s assets. No further action has been taken by police and the investigation into my conduct as a director of the company was completed and no disqualification proceedings sought against me[82]H relies on an email from Mr Frank Brunby, a partner in the insolvency team at the firm of solicitors he instructs in this case. He, in turn, refers to the liquidator’s report dated January 2025 which refers to a possible claim against H. In answer to this, Mr Thorpe KC for W refers to expert evidence obtained by the liquidators in November 2021 from Wyles Hardy & Co. That report indicates that the total claim referable to incorrect valuations for the purchase of assets by DEF from ABC would amount to no more than £57,000.[83]I bear in mind the findings I have made about H’s approach to disclosure generally and I draw an inference from H’s statement quoted above and the Wyles Hardy & Co material that this is not a liability which will ever eventuate. If I am wrong, I bear in mind that I have been conservative in other areas of evaluation, in particular for the value of DEF. I also bear in mind that the decision I will reach below gives H a substantially higher proportion of the total assets and that in all the circumstances of the case it is appropriate that H should meet this liability in the very unlikely circumstances of it eventuating.[84]To recap, the assets as I find them, ignoring the tax penalties and interest are as follows: Value Current status H W The family home 3,395,000 3,395,000 H’s property 4,029,972 4,029,972 H bank accounts 1,887,870 1,887,870 W bank accounts 22,588 22,588 Joint bank accounts 5,037,784 2,518,892 2,518,892 DEF DLA 5,395,122 5,395,122 DEF 5,671,615 5,671,615 JKL DLA 740,466 740,466 NMO DLA 578,000 578,000 LM 9,478,913 9,478,913 Tax on LM (5,998,791) (5,998,791) H chattels 600,500 600,500 W chattels 107,095 107,095 H credit cards (52,782) (52,782) H o/s legal costs (163,436) (163,436) W o/s legal costs (259,211) (259,211) TOTAL 30,470,705 24,686,341 5,784,364[85]I will have to decide how to divide this marital estate of £30.4 million after a marriage of 15 years with an additional 5 or 6 years of committed pre-marital relationship. I will turn first to the open positions.

The open positions

[86]H’s open position is predicated on the basis that the entire proceeds of sale of the LM1 shares are non-matrimonial assets and are not subject to the sharing principle. He says the matrimonial assets comprise the family home, the net value of DEF at July 2021 (£3.6 million – given in Ms Hart’s report), the value of GHI at July 2021 (£230,000 – also given by Ms Hart). He puts that total at £6.24 million. He says that W’s sharing claim is limited to half that figure. He acknowledges that this will not meet W’s needs and so offers additional provision. He says that W should keep the family home and receive a lump sum of £3.3 million. This would be on a clean break basis. There were additional points about chattels. I will address those later. On my findings as to the value of the family home (£3,395,000), and on the basis that W keeps her chattels, bank accounts and pays her outstanding legal costs, this would give W £6,565,472 or 21% of the total assets. No provision for the parties’ youngest child was offered.[87]By her open position, W seeks, on a clean break basis, the family home (£3,395,000), retention of her bank accounts (£22,588), her chattels (£107,095), the escrow account (£5,037,784), the net receipt from the October LM money (£3,480,122) and a further lump sum of £1.5 million. On the basis that she pays off her legal fees, I calculate this would leave her with £13,283,378 or about 42.5% of the total. She also seeks an order for H to pay their youngest child’s education costs and for child maintenance of £25,000 per annum to the conclusion of first degree. W also raises issues about specific chattels and indemnities. I will deal with those in due course. I also note that the figures in this paragraph and the preceding paragraph may be marginally skewed by the agreement to pay W’s outstanding legal fees from the escrow account.[88]I will now turn to the issue of post-separation accrual

Post separation accrual

[89]LM is located [redacted for anonymisation].[90]W recalls H first talking about LM as the time the P Project came on the horizon. This would have been at some point in 2020. In September 2020, the Crown Estates published a report reviewing suitable ports for offshore development and identified LM as a top possible location. On 3 March 2021, H was visiting the port. He sent W a photograph and a text in which he described it as ‘our port LM )’. In cross examination, he attempted to suggest that the date was much later and that the road was not clear at that time. He also suggested that ‘our’ referred to him and YZ. I do not believe either proposition. He sent the text in early March 2021 and referred to it as ‘our’ port meaning his and W’s port. He was clearly very excited about the possibilities of this project. H’s statement is entirely silent as to when he first saw the port and discovered the possibility of the project. He merely says YZ told him about it. He implies that YZ first saw visited the site in June 2021. When he wrote that he did not know W was going to produce a text showing he was at the site in March. His silence about when he himself first saw the site is entirely consistent with his approach to this issue.[91]On 12 May 2021, H and YZ set up LM1. H says he took over negotiations from YZ in late June 2021. H has produced no documentary evidence about the negotiations. He says his laptop was retained by the private equity firm after he left the port in 2023. An agreement was reached to purchase the site in July 2021. LM1 acquired LM2, which owned the site. The headline terms were for £12 million with an immediate payment of £1 million, a further £1 million due in January 2022, £2 million by August 2022, £4 million by July 2023 and the final £4 million by July 2024. I note that none of this was mentioned in H’s Form E. The immediate payment of £1 million was funded by loan to LM1 from GHI. GHI raised the money by borrowing against scrap metal from the P Project. In all presentations prior to his s25 statement H had referred to this as a sale of scrap metal. The agreement provided for works at the port to be carried out by ABC (not GHI). The work was in fact carried out by DEF.[92]H and YZ now had to find additional funding. On 20 September 2021, they negotiated an agreement with an investor who paid £5 million for an option on the project. £2 million was to be used for further payments to the vendors of the site, £1 million was loaned to GHI to complete the P Project, £1 million was repaid to GHI for the loan and £1 million was retained for working capital at the port. This deal was not referred to in H’s Form E. I do not think the 2021 agreements were disclosed until after the PTR.[93]Shortly after the above investment deal was struck work began at the port. I was told by H that the works were undertaken by DEF operatives using DEF machinery rented by LM1. W says that H told her that the value of the port was not just its future potential but the money it would generate through the works he would carry out. This was how H operated the project. This is very significant; the value of the project was not just its potential capital value but also its value as an income stream. This is demonstrated by the fact that when H exited the project DEF were paid £3 million for termination of their contract. H says that £60,000 per week net of VAT was generated by the project.[94]H says that the work was entirely different from the work he had previously done. I do not accept this. The work was carried out by DEF operatives using DEF machinery. There was plainly a great deal of similarity between DEF and ABC’s historic work and this work. I do accept that H and YZ worked hard to find the funding to take the project to the next phase. They pitched to about 20 funds around the world. In February 2023, H and YZ reached a deal with the private equity firm to provide financing of more than £300 million by the end of 2025. The agreement provided funding for the final payment of debt to the site vendors and I think the purchase back of the investors’ option. H received £1,123,920 for part of his shareholding and shares in the new venture which he says were by that transaction valued at £18 million. Needless to say, he did not disclose this to W and it was not until she raised it in correspondence in June 2023, that he explained what had happened but did not provide any documents.[95]As I explained in the introduction, H then negotiated an exit which produced a gross sum of £29.5 million in October 2023. As I have explained he also received £1.12 million in February 2023. I must decide how I should treat these funds.[96]H says these funds are created after the marriage and represent non-matrimonial assets to which the sharing principle cannot apply. W says that source of the funds is deeply embedded in that marriage, that H was trading her undivided share and that she is entitled to half of those assets. As I indicated to the parties during submissions, there is perhaps a middle course.[97]In Hart v Hart [2018] 1 FLR 1283, Moylan LJ explained that there were essentially two ways of evaluating non-matrimonial property. It could be evaluated formulaically or by a broader approach. It seems to me that in this case where the funds have been created by endeavour which took place while the marriage subsisted and by endeavour afterwards, it would be impossible to apply a formula in a way which would do justice between the parties. Mr Molyneux KC and Mr Finch have produced various tables showing me, they say, that only a very minute portion of the value created is matrimonial. I do not accept this is a sensible approach. The key decisions took place during the marriage: the identification of the site, the purchase of the site in July 2021 and the investment in September 2021. Guiding myself with Hart by my side I intend to take a broad view.[98]I was provided with thirty authorities. Hart was not among them. The most significant case in my view is GA v EL [2023] EWFC 206 decided by Mr Stephen Trowell KC, as he then was. He was dealing with a very similar argument and he surveyed the full cannon of the law on post separation accrual, analysing it in depth and explaining it with his customary incisive clarity. His conclusion after surveying all those authorities was that [74]:a. Post separation non marital assets can exist at the date of trial even where there has been no undue delay;b. In assessing post separation non marital assets I must guard against counting in the product of passive growth;c. I should remain mindful of the extent to which the person claiming post separation assets is simply benefitting from investing the unallocated funds of the other spouse;d. I should not overlook the domestic contribution which may be taking place by the other spouse;e. While a formulaic approach may be better than a ‘by and large’ approach I will have to make such assessment as I best can on the facts as I find them.[99]How should I apply these principles? I have already indicated that, in this case, I reject a formulaic approach and will approach the case on what Mr Trowell KC referred to as a “‘by and large’ approach’’. With the greatest respect to Mr Trowell KC, I think I prefer the term holistic and I intend to make my assessment holistically. In so doing and following Mr Trowell KC’s approach, I remind myself that post separation accrual can exist and I find it does in this case. I have no evidence of passive growth so that is irrelevant in this case. I am mindful of the fact that the works completed by H at the port, which no doubt played a significant part in the deal struck with the private equity firm, were conducted using DEF assets and DEF operatives. I am mindful also that the initial capital which enabled the first deal to be struck in July 2021was raised by GHI. I am mindful of the initial steps which took place during the marriage. And I remain aware of the contribution W has made to family life since separation and that such a contribution was made at a time that H was taking action which made that family life very much more difficult than it ought to have been.[100]I come now to my decision.

Outcome

[101]I must have at the forefront of my mind the section 25 factors and my primary consideration, the parties’ youngest child. In this case, it will be of no utility to run through those factors. My view is that an award which leaves W with about 43% of the total assets and about 40% of the assets created by the LM project is a fair result which appraises the post separation accrual holistically and comfortably meets both parties’ needs.[102]So, my order on a clean break basis (deferred until payment of the lump sums, but with interim provision ending immediately) will be as follows:a. W will retain the family home (£3,395,000);b. The balance of the escrow account will be paid to her forthwith (£5,037,784), to the extent that payments have been made to W from this account for legal fees no adjustments will be made;c. H will pay to W a lump sum of £4.8 million by 31 October 2025.[103]This will give W a total of £13,103,256 which is about 43% of the total assets. Deducting her housing at £3,395,000, the award gives her £9,708,256 in free funds. I have no hesitation in finding that such a sum will meet her needs. H will have £17,368,302 from which he will have to meet £410,678 in penalties and interest on the tax liability. I have no doubt this will meet his needs and represents a fair solution to this case taking into account all issues, to which I have alluded, holistically.[104]The contractual documents with the private equity firm make it clear that the further LM payment will be paid to H in October 2025. No contingencies are identified. The private equity firm is a successful international business. There is no doubt in my mind that the money will be paid. I do not consider it appropriate for W to share in the potential risk (which I find is very low) that some or all of the money will not be paid. I have found many deficiencies in H’s approach to this litigation, and I do not consider it appropriate that W should share in the risk created by H’s decisions to make no provision for tax and to deploy the money received from the first payment as he sought fit. In a different case, I might have considered contingent reverse lump sums but I do not consider such a course appropriate in this case. H has sought to obscure the truth and has made evaluating the assets in this case incredibly difficult. I have to a very large extent erred in his favour in my approach to the value of DEF where he has prevented any proper investigation into its true current value.[105]Mr Molyneux KC has asked for clarification of the nature of the lump sum payment to be made by 31 October 2025 and invites me to make it a lump sum payment amenable to variation. He posits delay in respect of payment of the further LM monies or the possibility that the amount paid will be less then I have found. I do not consider that quantum should be variable but I do accept that timing should be variable. Therefore, the order should be framed to describe the transfer of H’s interest in the escrow account as a lump sum instalment so that both it and the October lump sum can be described as one lump sum by instalments. However, the order should carry a recital recording my intention that I would expect any application to vary the lump sum to be limited to timing only.[106]As to other matters:a. All DEF assets at the family home shall be returned to DEF (at DEF’s expense) on payment in full of the lump sums;b. W must return to H all his personal chattels given a value on the ES2 which are still a at the family home on payment in full of the lump sums;c. H shall indemnify W against any claims brought against her by DEF and for any tax liabilities relating to maintenance paid to her through DEF;d. H should meet the parties’ youngest child’s educational expenses and pay child maintenance of £25,000 per annum until conclusion of tertiary education. This must be by consent as I have no power to make the order. If no consent is given W will have to make an application to the Child Support Agency.

Costs

[107]At the conclusion of submissions, I asked the parties if they would want me to give an indication as to costs to avoid an additional hearing. I made it clear that any indication I would give would be preliminary and that I would accept further submissions if my guidance was not accepted.[108]My preliminary view will come as no surprise. I have made serious findings about H’s approach to this case and his behaviour during the litigation. Ordinarily, I would be minded to say that H should pay 50% of W’s costs. However, W pursued a hopeless conduct case. My view is that H should pay 1/3 of W’s costs as set out in Form H1. This amounts to £250,000. I am minded to defer payment of this sum until 31 October 2025 on the basis that the majority of H’s current liquidity is earmarked for other provision for W.[109]That is my judgment and preliminary view on costs.