Your case is unique, but you are not alone.
About 41,000 new cases are filed in U.S. courts every weekday. Behind each one is a person trying to understand what happens next. Here’s what the public record can tell you about this matter — and about the people deciding it.
Is this judge more likely to rule for the plaintiff or the defendant in cases of this type?
How has your attorney actually performed in front of this judge?
AICasePredict surfaces patterns from public court records. We don’t predict outcomes and we don’t recommend changing your attorney — that’s a conversation for you and them. We just show you what the record already says.
Full Analytics Report
- Complete case narrative
- Judge details and rulings
- Case disposition and outcome
- Related cases and filings
$20
One-time purchase
Case Information
Filed
2022-12-02
Docket
93 entries
Parties
Defendant
Km
Lawyers
Docket Entries
- This case concerns the financial remedies proceedings arising out of the divorce between Ms TM (to whom I shall refer as "the wife") and Mr KM (to whom I shall refer as "the husband").
- The case proceeded to a final hearing over five days on 28th, 29th & 30th November and 1st & 2nd December 2022.
- Both parties appeared before me by Counsel: Mr Simon Calhaem for the wife, instructed by Forsters LLP, Solicitors, and Ms Marina Faggionato, instructed by Withers LLP, Solicitors, appeared on behalf of the husband. Both parties have been represented by legal teams at a first class level, and both Counsel have presented their respective cases with assiduous hard work and great skill and persuasiveness.
- This has, though, come at a high cost. The wife has incurred, in the course of these proceedings, a total of £419,894 in legal costs and the husband a total of £375,337. It is sad to note that nearly £800,000 of family money has been spent on lawyers in a case which was, from the position of an objective observer, readily settleable. As ever, it is difficult (indeed impossible) for the trial judge, who must remain unaware of the without prejudice negotiating positions and the course of the FDR, to make any meaningful assessment of why no compromise was ever reached.
- The court was presented with an electronic bundle running to 713 pages and this was later joined by a second bundle of email exchanges running to 704 pages. A number of additional documents have been produced in the course of the final hearing. Included amongst these documents were:-
- I have also heard oral evidence from the wife and the husband (in attendance at court) and from Mr Cullen and Ms Annunziata (by remote video via CVP), all subjected to appropriate cross-examination.
- I have also had the benefit of full submissions from each counsel in their respective opening notes and their closing partly written and partly oral submissions.
- This was a trial conducted before me in a largely civil manner by both sides; but I want to make this comment about a number of remarks in the husband's written presentation which I felt crossed the line into the territory of personal pejorative remarks about the wife and were misplaced, unnecessary and unhelpful. Parties signing statements and Solicitors drafting statements should pay proper heed to the remarks of Peel J in WH v HC
- [2022] EWFC 22
- The history of the marriage is as follows.
- The wife is aged 50 (d.o.b. 1972). She currently lives in rented accommodation in a city in, England. She comes from a family with Arabic heritage, and was born in another European country, but she was brought up in the USA and resided in the USA until late 2006, only moving to England with the husband after the marriage. My overall impression is that, notwithstanding the international flavour of her life since 2006, and her dual UK and USA citizenship, her heart lies firmly in the USA. She is a pleasant, impressive, intelligent, able and educated individual, appropriately proud of having attained an MBA from Wharton Business School in Pennsylvania (thought by many, including the wife, to be the finest business school in the world), and (as I shall develop further below) had a highly successful career in the world of investment finance before 2008 in the USA (and latterly in the UK) which has not been pursued since 2008.
- The husband is aged 48 (d.o.b. 1974). He also lives in rented accommodation in a historic city in England. He was born and brought up in England and is a British citizen. He is also a pleasant, impressive, intelligent, able and educated individual. He learned Arabic at University and he has been able to combine his language and financial skills to conduct a highly successful career in investment finance in the Middle East.
- They met in London and started a relationship in May 2003. It is common ground that, initially, this was largely a trans-Atlantic relationship, with the wife living in New York and the husband in London and visiting each other only for such fleeting times as they could fit around their work; but it is common ground that it was a loving and intimate and emotionally committed relationship from an early stage. It is common ground that in about August 2004 the husband relocated to New York to enable him to pursue the relationship more easily. There is a dispute which I need to resolve as to whether this became a relationship of cohabitation when he arrived in New York in August 2004 (as the husband contends) or only later when they became engaged in January 2006 (as the wife contends). On that issue I want to make the following comments:-
- The parties formally married in the USA on 3rd June 2006. A separate foreign marriage ceremony took place in the foreign Consulate in New York in August 2006 and the big wedding celebration took place in another country in October 2006.
- In December 2006 the parties moved to live in London. In January 2010 they moved from London to the Middle East. In March 2011 they moved from one country in the Middle East to another. In August 2016 the wife moved back to England and the husband followed in April 2017.
- In the course of these international moves, the marriage produced two children:-
- Unfortunately, the marriage ran into real, unremediable difficulties, and the parties decided to separate, in the course of 2021; but they remained living under the same roof for the time being whilst their house sold. There is a dispute as to the precise date of 'separation' within 2021; but nothing turns on this in the context of this case and I do not propose to make any findings on this.
- From August 2017 until May 2022 the parties both resided at the family home. This property was a large and attractive Grade II listed country property sitting in 16 acres of land with a swimming pool and tennis court. A plan for an extensive refurbishment was cancelled when the marriage ran into difficulties in 2021. The property was sold for £3,750,000 with completion taking place in May 2022. The net sale proceeds were £3,708,624 and it was agreed that each party would take £200,000 from the fund, the remainder being held in a designated joint account with HSBC. On completion both parties moved into rented accommodation, pending the determination of the financial remedies proceedings and this is where they remain.
- Divorce proceedings were commenced on 15th September 2021. Decree Nisi was ordered on 4th November 2021. Decree Absolute awaits the outcome of the financial remedies proceedings and is not, in itself, controversial.
- The financial remedies proceedings chronology is as follows.
- The wife issued Form A on 28th September 2021.
- Forms E were produced in December 2021 and January 2022.
- A First Appointment was heard by Recorder Trowell QC on 1st February 2022.
- Questionnaires were answered in March 2022.
- A private FDR hearing took place on 21st March 2022 before Geoffrey Kingscote QC; but, sadly, no settlement was reached.
- A post-pFDR directions hearing took place before HHJ Gibbons on 13th May 2022. She satisfied herself that an effective FDR had occurred and timetabled the case through to a PTR and final hearing.
- Narrative statements were exchanged in September 2022.
- The PTR hearing was heard before me on 16th September 2022.
- A final hearing has taken place before me on 28th, 29th, 30th November and 1st and 2nd December 2022.
- In dealing with the claim I must, of course, consider the factors set out in Section 25 and Section 25A Matrimonial Causes Act 1973 and also any relevant case law.
- Matrimonial Causes Act 1973, Section 25 reads as follows:-
- Matrimonial Causes Act 1973, Section 25A reads as follows:-
- The interpretation of these statutory provisions has to be considered against the background of the relevant case law, and the present case calls me to have to give some thought to how the leading House of Lords authority of Miller v. Miller; McFarlane v McFarlane [2006] UKHL 24, in particular the speeches of Lord Nicholls and Baroness Hale, should be followed to achieve a fair outcome. Extracts from these speeches appear below.
- Per Lord Nicholls:-
- Per Baroness Hale:-
- In the years since 2006 the courts have become very used to applying the needs and sharing principles and it is not necessary for me to say very much about them at this stage, save to say that Lord Nicholls' words ("When their partnership ends each is entitled to an equal share of the assets of the partnership, unless there is a good reason to the contrary") have become widely applicable in relation to matrimonial property. For example, in the words of Mostyn J in JL v SL
- [2015] EWHC 360
- The present case is perhaps unusual because it engages, at least potentially, the compensation principle. I shall return to this issue, and the various authorities on it, below.
- I bear in mind that I must give first consideration to the welfare while a minor of any child of the family who has not attained the age of eighteen. In this case both children of the family are under 18. It is therefore necessary for me to consider how their respective needs and interests will affect this case.
- It is common ground that both parties will need enough money to house, feed and provide a reasonable lifestyle for the children when in their care and I shall take this matter into account when assessing need below.
- It is common ground that my order should contain provision for the husband to pay child periodical payments to the wife for the benefit of the children and that he should also pay all their school fees for the remainder of their secondary education.
- There is a dispute about the quantum of child periodical payments order and its duration, which I need to resolve, and the parties agreed at the PTR hearing to an order using the methodology in V v V [2001] 2 FLR 799, giving me power to fix the appropriate quantum on a variation.
- There is also a dispute about whether my order should contain a provision for university tuition fees to be paid by the husband.
- In relation to the "property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future" many of the figures are not controversial and I do not need to deal with them in detail, but there are a number of disputed issues to determine, which I do as follows.
- The first issue relates to the US Property:-
- The next issue relates to the New York property:-
- The next issue, which is in rather similar vein, is that the wife argues that at least some of her pensions and investments pre-dated the marriage and should be excluded from the assets subject to the sharing principle. The strength of this argument is weakened by my findings in relation to the commencement of the relationship and it is not at all clear on the evidence how much of these investments should be treated as pre-dating August 2004 as opposed to a later date. Further, and also significantly, is the fact that the husband similarly accrued some of his valuable pension prior to 2004 (it is currently worth £1,023,826 and he started accruing the pension in 1999). If I were to deduct a straight-line portion of his pension (although this might not be fair because he has not accrued it on a straight-line basis, there is no evidence to assist any different calculation) this would remove a significant amount to set off against whatever the correct figures were for the wife. I find myself unattracted by the proposition (advanced by the wife) that I should deduct from one side and not the other. In my view the search for fairness here is best served, absent any detailed expert accountancy evidence and after this long marriage, by leaving in all of these assets in my schedule and subjecting them all to the sharing principle.
- As far as the husband's restricted / deferred compensation stock is concerned, the parties have agreed a form of words whereby all those which have currently been granted (whether yet vested or not) will be sold as and when they can be and the net proceeds divided equally. This does not apply to any granted in the future. This has the consequence that these sums will be paid over a period of years (perhaps four) and if the husband leaves the bank for whatever reason and ends up forfeiting these interests (which both agree is unlikely) then the wife will also forfeit her share. This seems like a reasonable compromise and I propose to adopt it.
- The husband accepts that there should be a pension sharing order from his pension which has the effect of equalising CEs. It is agreed that if I include all the wife's pensions in the equal division (which I will – see above) then the appropriate percentage figure for the pension sharing order will be (to two decimal points) 39.02%. I note in passing that this is not a case where there has been a PODE report commenting on the loss of benefit arising from transferring money out a defined benefit scheme, but it has been common ground that such a report was not appropriate in the circumstances and I do not intend to interfere with that decision in the context of the assets available for distribution in this case.
- Having made these determinations I am now able to set out my assessment of the assets and debts for distribution in this case.
- The situation can be summarised as follows:-
- On the basis of this asset schedule an overall equal capital division of assets would be achieved by:-
- I propose to turn next to the question of the "financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future" I have the following observations.
- I bear in mind that, in the context of this case, it is appropriate for me to make a generous assessment of needs; but this is not (as Mr Calhaem has suggested) a case which falls into the category of the super-rich, justifying the applicability of the sorts of comments made by Thorpe J in F v F [1996] 2 FCR 397 and Mostyn J in Collardeau-Fuchs v Fuchs
- [2022] EWFC 6
- Both parties have the need for a suitable home for themselves and the children when in their respective care. I have heard and read a good deal of evidence on this. In this context I have in my mind the standard of living that the parties jointly enjoyed during the marriage, and the agreeable house they lived in from 2017 to 2022. Both are looking for a good country home in the vicinity of the city in which they live or possibly further West in the context of B's attendance at boarding school. The husband contended for a mutual housing need of c. £2,000,000. The wife contended for a mutual housing need of c £3,000,000. I sensed both contentions had an element of strategic positioning rather than genuine attempts at assessing need. As ever, the selection of a home takes into account location, size, appearance, decorative state, number of bedrooms and no doubt other things and it is not for the court to select a particular property, but overall my conclusion is that a housing fund of c. £2,500,000 each (including the costs of purchase) would provide a generously suitable home for each of the parties.
- I note that Mr Calhaem's submissions (taking their lead from the wife's Form E) threw in such items under the heading of capital need as £250,000 for renovation and decoration (of an as yet unidentified house?), £250,000 for furniture, £85,000 for old age care provision, £14,000 for graduation gifts for the children and £15,000 for funeral costs. For me, these had the feel of lawyers' strategic padding and I decline to include them under the heading of capital need. I take the same view about the asserted need of £919,427 for a second home in America – if she does remain living in the UK (and she may well not once the children have left school) then it is reasonable for her to have good holidays in the USA each year, but there is no need for the ownership of a second home.
- Both parties have the need for a suitable amount of income for the remainder of their lives to meet a reasonable amount of spending needs for themselves and the children when in their respective care, in the context of their respective ages, the duration of the marriage and the standard of living that the parties jointly enjoyed during the marriage. Inevitably this case has involved the usual 'battle of the budgets'. Again, I sensed a significant element of strategic forensic positioning in the way each side put forward its figures; but this comment particularly applies here to the wife. The reality here is that this high income family did not generally live a hugely high spending lifestyle. To their credit they generally spent sensibly and saved a good deal, which is why they have a substantial amount of capital at this stage. My sense was that the wife's proposed annual expenditure budget of £331,885 for herself and the children when with her (living mortgage-free and not including any school fees) was far in excess of anything which could reasonably be described as a 'needs' budget in the context of the standard of living which had been enjoyed during the marriage.
- On a very broad analysis, if the wife never earned another penny in her lifetime, the equal capital division discussed above would leave her with investment funds (including pensions) of just short of £4,000,000 to fund her living expenses for the remainder of her life. In very broad Duxbury terms this would provide (using At a Glance tables) an income for life of c. £175,000 per annum net. In my view it could not sensibly be argued in this case that the wife has income needs above that figure. Indeed, I would probably place the figure rather lower than this and in addition, as I shall set out in more detail below, I do not accept that it is reasonable to assume that the wife will never earn another penny in her lifetime. Further, she will have the benefit of child periodical payments to supplement her income while the children are in education.
- My conclusion is that the wife's sharing claim is greater than her needs claim and there is no justification, in capital or income terms, in my making additional provision for the wife based on needs.
- I now turn to the question of income and consider "the income, earning capacity…which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire" and "whether it would be appropriate to require periodical payments to be made or secured only for such term as would in the opinion of the court be sufficient to enable the party in whose favour the order is made to adjust without undue hardship to the termination of his or her financial dependence on the other party" and the related question of compensation. I have the following comments.
- The husband is a very capable individual who has earned well with the bank throughout the marriage. In the years that he worked in the Middle East he paid no income tax and this has made a big contribution to the savings held by the family. His income is paid through a range of incentive mechanisms and a good portion of his income for a particular year is decided in the January of the following year and is based on performance in the previous year. In recent years his income has been, in overall terms, the following:-
- The husband has taken every opportunity to suggest that this income is heading on an alarmingly downwards spiral. A key client of his died in 2021. The husband was unwell for a while in 2021 and has a bad back as well. He has informed the bank that he wants to take four weeks unpaid leave each year with his children. At age 48 he is getting to the end of his career in a young person's business. His 'book of business' has been partially distributed to others. He has been warned that the January 2023 meeting will give him bad news. It may be that there is something in some or even all of these pessimistic observations, but (as Mr Calhaem was able to establish in cross-examination) he has something of a record for making unduly pessimistic predictions and I sense some significant strategic positioning here as well. Even if his income falls to some extent in the years ahead, I don't think it is unreasonable to predict that (unless he chooses otherwise) he will most likely remain by most standards a very high earner for a significant number of years ahead. As Mr Calhaem has illustrated, even if he retires at age 60, or even age 55, he should still have been able to save a good deal of money from his substantial surplus of income over expenses, even assuming that he pays full child maintenance and child education costs.
- I therefore turn to the wife's past, present and likely future income and the related question of whether this is a case for a compensation award.
- It has been established to my satisfaction that in the years leading up to 2007 the wife was a high earner in a not dissimilar bracket to the husband (recalling that these figures date back nearly 20 years when she was in her 30's). Her income first at an American bank in New York and then at an English bank in London was substantial:-
- It is correct, as Ms Faggionato has submitted, that there was a diminution in the wife's income in 2007; but it seems to me that this was mostly attributable to her move to London in December 2006 to be with her new husband and her move from the American bank to the English bank (which was also hampered by the effects of the global financial crisis at that time). In 2008 the wife was pregnant with A, then took maternity leave and was then made redundant by the English bank and the wife has never worked in this field again. It was, for me, an unfortunate feature of the husband's presentation that he urged that I should somehow conclude from the events of 2007 and 2008 that the wife had lost her way and lost her status as a potential high earner. I have little doubt that the wife remained a potentially high earner and the reasons for the loss of her position were first the move to London to be with the husband and secondly the arrival of her first child in 2008 and her decision to devote herself to the child-care role – both in my view relationship-generated sacrifices by the wife. If neither of these things had happened, I am satisfied that she would have remained a very high earner, probably in New York.
- In my view the wife's ability to be a high earner was further inhibited by two further relationship-generated developments - the arrival of their second child in 2011 and the move to the Middle East between 2010 and 2016. In this context the letter sent by the husband to his employers in 2011 in the context of negotiations about his remuneration after the move between Middle East countries is, in my view, of significance. It may be that the wife had a hand in its drafting, but that doesn't detract from the point. In this letter the husband says:-
- There is a clear indication here, in 2011, of the husband accepting that the move to the Middle East involved a hefty career sacrifice for the wife, so justifying higher pay for him. There is no indication here of his belief that she had lost her earnings touch in 2006 or 2007.
- In the meantime, the wife set up a fabric business through a company owned by her,. It has made a little money from its trades but doesn't seem likely (even on the most favourable analysis) to bring in an income of more than £15,000 to £20,000 per annum for the wife and its current performance may be much lower than even this.
- It was put to the wife by Ms Faggionato that she could and should now return to the investment finance world at a high level (probably inconsistently with the submission that the wife had in fact lost her touch in 2007/2008), but the wife did not think this possible and I agree with her that this is unlikely at age 50 after 15 years out of that field, certainly not at anything like the pay levels she used to receive. It does not follow from this that she has no earning capacity at all or even no earning capacity beyond that which she could earn through her company. She is intelligent, resilient and well qualified in business, still not old and in reasonable health and her need to be devoting time to child-care is diminishing and will diminish further when B becomes a boarding pupil next year. Although there was little evidence before me targeted towards this, I would suggest that, if she so decided, it is more likely than not that the wife could find remunerative employment at perhaps £50,000 per annum gross in a business-related employment and quite possibly significantly more than that.
- As I have already said, a combination of this earning capacity and the capital assets with which she will be left under the sharing principle means that, for me, there is no sustainable basis for any further provision based on need; but what then of a compensation claim?
- Ms Faggionato has suggested on behalf of the husband that no such claim should be contemplated by the court. Mr Calhaem on behalf of the wife has contended for an award expressed in a CPI linked spousal periodical payments award of £212,668 per annum for seven years without a section 28(1A) bar. This would be worth c.£1,500,000 in capital terms.
- A return to the core guidance set out above from the House of Lords in Miller v. Miller; McFarlane v McFarlane [2006] UKHL 24 (for example Lord Nicholls comment that "Compensation and financial needs often overlap in practice, so double-counting has to be avoided. But they are distinct concepts, and they are far from co-terminous") suggests that a compensation award can be made even where needs are fully met; but I observe that later authorities at High Court level were discouraging to compensation claims.
- Coleridge J in RP v RP
- [2006] EWHC 3409
- Mostyn J in SA v PA
- [2014] EWHC 392
- Although not a case specifically about compensation, Moylan LJ's judgment in Waggott v Waggott
- [2018] EWCA Civ 727
- Despite this line of authorities discouraging the pursuit of compensation claims, I have found Moor J's judgment in RC v JC
- [2020] EWHC 466
- In my view the present case presents very similar facts to those in RC v JC and I have reached the conclusion that the present case is one of those rare and truly exceptional cases where a discrete compensation award is appropriate. I have no difficulty on the facts of this case in concluding that the wife has made a relationship-generated sacrifice of her high earning career in investment finance to devote herself to supporting her husband's career choices and providing child-care for her children. I have concluded that, whilst she should be able to find reasonable work now, this is very unlikely to get her back to anything like where she would have been if she had not made that relationship-generated sacrifice. In the search for fairness, in the context of the House of Lords guidance in Miller v. Miller; McFarlane v McFarlane, my view is that this sacrifice should be reflected in the outcome of this case.
- How should this compensation claim be quantified? Like Moor J, I have found this the most difficult part of the exercise. The award must reflect the fact that the wife in this case has to a significant extent benefited through the sharing exercise from the upside of her sacrifice – the accretion of capital from the husband's high earnings, including the fruits of the absence of income tax in the Middle East. I must take care not to fix the award in a way which amounts to a sharing award of the husband's high income. I bear in mind that the wife made a voluntary choice to do what she did with her career. Although a compensation claim is an income-related claim I need to bear in mind the statutory steer in favour of a clean break arising from Matrimonial Causes Act 1973, section 25A – and there is enough capital in the husband's hands to achieve this fairly. In the end I have concluded that I should broadly follow a similar route to the one adopted by Moor J in relation to the wife's compensation claim. To achieve a fair outcome I propose to add five tranches of £100,000, a total of £500,000 to the wife's award and to order that they be paid now as a lump sum on a clean break basis.
- Accordingly I propose to make the following capital orders in this case:-
- Such a division, using my asset schedule above, should produce the following outcome:-
- I have reached the conclusion that the reasons I have set out above amount to good justification for this fairly modest departure of equality on capital.
- It remains for me to determine the unagreed child periodical payments order issues to which I drew attention above.
- As far as the quantum of child periodical payments is concerned, I propose to follow the approach of Mostyn J in CB v KB
- [2019] EWFC 78
- My view is that the order should follow the orthodox pattern of continuing until the children respectively cease full-time education, including tertiary education up to a first degree and including one pre-university gap year. For periods after the completion of secondary education two thirds of this sum should be paid to the respective child directly and one third should be paid to the wife as a roofing allowance.
- It is common ground that the husband will pay all future school fees for both children, but there is a difference of view about university tuition fees. The issue is complicated by the fact that there might very well be a difference of opinion as to whether the children should pursue their tertiary education in the UK or the USA. Typically, tuition fees are cheaper in the UK and there is usually a government loan available. In the USA tuition fees are typically much more expensive, but there are not infrequently scholarships available. Further, especially in B's case, decisions about tertiary education are some years away and the respective income positions may look very different when the time comes to make those decisions. For me to make an all-encompassing order now for the husband to pay university tuition fees, whatever they may be, I fear runs the risk of pre-judging the sensible child-focused decision which should be made at that time. In the circumstances I propose to make an order which leaves open the question of how university tuition fees are funded to be decided as and when the time arrives. I trust that these two well-educated and intelligent adults, who love their children dearly, will make sure that their differences do not in due course get in the way of the children's obvious needs to engage in suitable and good quality tertiary education.
- This is my decision and I invite counsel to produce a draft order which matches these conclusions. I am handing this judgment down by email in the late morning of 2nd December 2022 and will reconvene the hearing at 2.00 pm, at which I trust we will be able to settle a final order.
- I have not in this judgment specifically discussed the issue of costs, but in view of FPR 2010 Rule 28 this is a case where 'no order for costs' is the general rule and my provisional view is that neither of the respective open offers justify any departure from this general rule. Further, my provisional view is that there are no relevant conduct issues here. I will receive any further submissions on this if either party wishes to make them.
Get Free Case Details
Enter your email to receive case information including parties, docket entries, and status updates.
By submitting you agree to our Privacy Policy.
Need this case removed? Enter your email above — the confirmation email includes a case removal link.
Full Analytics Report
- Complete case narrative
- Judge details and rulings
- Case disposition and outcome
- Related cases and filings
$20
One-time purchase
Legal Analytics Has Been Featured In
