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Case Information
Filed
2026-02-03
Docket
60 entries
Parties
Defendant
Hc
Lawyers
Docket Entries
- With the approval of Peel J, I certify that this judgment may be cited (in the context of the decision on pension apportionment and matrimonialisation) in accordance with the Practice Direction on the Citation of Authorities [2001] WLR 1001 and Guidance given by the President of the Family Division dated 24 February 2025 under the heading Citation of Authorities: Judgments of Circuit Judges and District Judges.
- The case proceeded to a final hearing over four days on 12th, 13th, 15th and 16th January 2026. Evidence and submissions were completed by the end of 15th January 2026 and this judgment has been written largely on 16th January 2026 and completed on 19th January 2026.
- Mr Justin Warshaw KC (Counsel instructed by Craig, Solicitors) appeared on behalf of the husband. Mr Edward Boydell KC (Counsel instructed by Ellis Jones, Solicitors) appeared on behalf of the wife. I commend both Counsel for their high levels of skill and persuasiveness and their assiduously hard work on the case. Both parties have been represented by first class legal teams in these proceedings. The wife has incurred a total of 289,104 in legal costs, the husband a total of 304,213. It is very unfortunate that these two intelligent, respectable and pleasant individuals have had to spend nearly 600,000 in legal costs to resolve their financial differences. With a level of 'give and take' on both sides, this case really should have been compromised at an earlier stage.
- The court was presented with three electronic bundles at the outset of the hearing: a core bundle running to 478 pages, a wife's supplemental bundle running to 238 pages and a husband's supplemental bundle running to 244 pages. I have considered the documents presented to me, in particular I have considered:-
- I have also heard oral evidence from the husband and the wife. The time estimate for the hearing was long enough to allow Counsel to have three hours each of time for cross-examination, which fully met their time requests. Overall, I am entirely satisfied that this gave a full and fair opportunity to each party to put forward their own case and challenge that of the other.
- I have also had the benefit of submissions from each Counsel in their respective opening notes and their closing partly oral and partly written submissions.
- The history of the marriage is as follows:-
- The financial remedies proceedings chronology is as follows:-
- In dealing with the applications overall I must, of course, consider the factors set out in Matrimonial Causes Act 1973, section 25 and 25A, together with any relevant case law.
- Matrimonial Causes Act 1973, section 25, reads as follows:-
- Neither party is seeking ongoing spousal periodical payments order so the provisions of section 25A are not relevant to this dispute.
- I now turn to my analysis of the section 25 factors. There being no relevant minor children, I turn first 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", the computational part of my task. In the end, the asset schedule has almost entirely been agreed and I need only make the following limited observations and findings. Otherwise, the asset schedule below is agreed:-
- The only major issue in dispute in the computational part of the case is whether or not I should accede to the add-back arguments advanced by Mr Boydell arising out of a number of payments made by the husband to his adult children since the marriage broke down. The payments said to be in this category are as follows:-
- Mr Boydell's contention is that the monetary amount of these payments should be added back into the husband's column on the asset schedule because (in a case where monies are to be shared equally) it is unfair if one of them makes substantial non-consensual gifts prior to a division of assets because the mathematical effect is that the non-consenting party is paying for half of the gift. He argues that the court should not condone such payments because they amount to an unfair manipulation of the situation. He suggests that the timing of the payments - the earlier tranches coming immediately after the breakdown of the marriage and the latter tranche coming between the PTR and the final hearing - should cause the court to be suspicious. He argues that, whilst a generous gift to an adult child for a wedding is prima facie perfectly commendable, it should be paid from the donor's half of the assets and the non-consenting other party should not be penalised.
- Mr Warshaw reminds me that the legal test for add-backs is a high one - only dissipations which are wanton or reckless and where the spending was deliberately targeted towards diminishing the share of the party will justify such an add-back: see, for example, Norris v Norris [2002] EWHC 296, Vaughan v Vaughan
- [2007] EWCA Civ 1085
- [2015] EWHC 627
- It is right for the court to state clearly that any financial remedies litigant who does engage in manipulative spending between separation and a financial remedies hearing with a view to diminishing the sharing claim of the other does run the risk that the court will add back that the amounts spent to restore mathematical fairness. In the end, however, I have not been persuaded that the facts of the present case cross the line to cause me to do this. In so far that some of the payments by the husband get close to the line - I have in mind the December 2025 gift in particular - I have been persuaded that the counter arguments about the wife's spending should properly be treated as neutralising the position. I have accordingly decided not to make any add-back adjustments in this case.
- The other issues requiring a determination are comparably minor issues. I have decided to include a debt figure of 27,000 advanced by the husband for his CGT debt due on his sale of T PLC shares. On this I propose to accept the husband's evidence that this is the likely figure and that the debt is genuine in preference to the wife's case that this has not been properly documented. I have, however decided not to include the debt figures advanced by the husband of 3,400 for accountancy fees (I was persuaded they were properly in the husband's costs figures), 453 for AB utility fees (I regard this as part of a continuum which should not be in this snapshot schedule) and 9,036 for London rent (again, this is a part of a continuum which should not be in the snapshot schedule and in any event it is not due until 16th February 2026). My schedule records all these figures as zero.
- I can accordingly complete the computational part of my task by tabulating the current financial position as follows:-
- There is a particular argument about pensions, of which more below, but both parties agree that a persuasive starting point for the division of the non-pension assets, all of which it is accepted should be regarded as matrimonial property, is to divide them equally, to respect the sharing principle which is that, as a starting point in the division of capital after a long marriage, fairness and equality usually ride hand in hand so that matrimonial property should be divided equally. In the words of Lord Nicholls in White v White
- [2000] UKHL 54
- [2006] UKHL 24
- The mechanics of equal sharing in this case of the non-pension assets would in my view be best achieved by an order that includes the transfer of the Bristol property to the wife and a transfer of AB to the husband with a balancing lump sum from the husband to the wife to equalise the bottom line on the figures. I have been told that an offer has been accepted for AB but that contracts have not been exchanged. The husband has said that, whilst his earlier position had been that he wanted to retain AB, his present position is that it should be sold. I have decided that my order will be structured in a way which gives him the option as to what should happen to AB. The order will give him the choice between having AB transferred to him outright and an order for sale with him receiving 100% of the net proceeds. On the mathematics, equality of the non-pension assets would be achieved by the husband paying to the wife a balancing lump sum of 724,654, the mathematics of which is illustrated by the following table:-
- Mr Warshaw accepts that such a lump sum is appropriate. Mr Boydell argues that there should be a needs-based additional lump sum paid to the wife; but the mathematics of such a claim is entwined with the arguments about the extent to which the wife has a sharing-based claim to the husband's pensions, to which I shall now turn.
- It is common ground that the husband now has pensions of substantial value ( 3,063,841) and the wife has pensions of limited value ( 35,363).
- At the heart of this case is the dispute as to the extent to which the husband's pensions should be regarded as matrimonial property (and thus subject to the sharing principle) or non-matrimonial property (and thus only to be invaded on a needs basis). This difference in turn raises the disputes both as to the extent to which the pensions should be treated as having accrued during the marriage (i.e. 2009 to 2024) and the extent to which the portion which accrued outside the marriage (i.e. before 2009) should be treated as having been subsequently 'matrimonialised'. For a variety of reasons, in the present case these are not simple questions; but they do require an answer.
- The chronology for the acquisition of the husband's pension rights, and of the growth of the actuarial value of those rights, is complicated and unusual and has been carefully and helpfully tracked by Mr Nobbs in his PODE report. I make the following comments and findings about this chronology:-
- The question therefore arises as to how to fit these facts into a reasonable assessment of the extent to which the pension should be treated as having accrued during the marriage (i.e. 2009 to 2024) in the context of assessing whether they should be regarded as marital acquest. In the words of the Supreme Court in Standish v Standish
- [2025] UKSC 26
- In the context of pensions, the question is often referred to as one of "apportionment". It is right to note (as did Mr Nobbs) that this issue has been addressed by the Pensions Advisory Group, most recently in its report of January 2024, known as PAG2
- [6]
- Mr Nobbs' view was that the 'funding approach' analysis has some difficulties because many pensions being divided do not, in fact, have funding in place, but are not necessarily regarded as being underfunded (for example most public sector pension schemes). His view was that the other two approaches were more likely to be persuasive but took the view (really following PAG2) that it was a matter for the court to reach a fair decision based on a balance between the other two approaches. He did not consider that the question could be answered actuarily. I agree with this view and his overall approach and I express the view that his figures are helpful and illustrative of what was happening here.
- Mr Boydell invited me to concentrate my attention on the CE approach and he has drawn from this that the vast majority of the CE value can be attributed to the period of the marriage - perhaps the figure of 91.5%, i.e. 100% less the 8.5% accruing on the
- Mr Warshaw on the other hand has contended that the right way forward here is to look primarily at the service approach, i.e. to look at when the service was performed by the husband which led to the accrual in pension rights. The valuation of these rights is, he says, no more than a sideshow. This approach would suggest that 14.4% of the pension should be treated as being accrued during the marriage. He said that if I was to look at the CE approach figures at all, I should be cognisant of the facts that of the figure of 64.1% (representing the 2012 to 2021 period on the CE approach), Mr Nobbs' calculations suggest that only 23.7% of this is attributable to the payments in by the company, the remaining 40.4% being attributable to actuarial matters such as interest rates and valuation methodology assumptions, including demographic assumptions. Further, the 26.5% post 2021 increase on the CE approach is solely attributable to passive growth, not marital endeavour. At its highest, says Mr Warshaw, 14.4% plus 23.7% of the pension, i.e. 38.1% of the pension could be regarded as being marital endeavour.
- I remind myself at this stage also of the earlier Court of Appeal decision in Hart v Hart
- [2017] EWCA Civ 1306
- My view is that the above question should not solely be answered by reference to one mathematical analysis. Although the mathematical analysis is a helpful and important ingredient, the search for fairness requires a broader weighing of the competing arguments. In some cases one of the formulaic approaches might seem fairer, in other cases a different formulaic approach might seem fairer and in other cases a blend of approaches might be fairest. The unusual facts of the current case illustrate the dilemma. Weighing all of the above matters, I have reached the broad conclusion that it is fair to regard 55% of the husband's pensions as having accrued during the marriage and 45% as having accrued outside the marriage.
- In the present case, the search for fairness also requires consideration of whether a higher figure could be introduced by reference to matrimonialisation. The court needs to consider the extent to which (whatever portion of the pension started as a non-matrimonial asset) the husband's pension has become 'matrimonialised'. Again, the recent Supreme Court decision in Standish v Standish
- [2025] UKSC 26
- The wife's case advanced by Mr Boydell is that the husband's pension, whatever its origins, has become wholly matrimonialised (although I note that the mathematics of his open position at trial was pitched at a level which assumed it was less than wholly matrimonialised). I have had some very detailed submissions on the respective contributions that the parties have made to this marriage. The husband's pension aside, it is clear that both parties have made substantial contributions. The wife received a gift from her father in July 2013 of 1,500,000, although a contribution from outside the marriage which she could have kept separate, has been contributed to the matrimonial pot in its entirety. She has also contributed an asset of considerable value - free use of the East London property for the family from 2009 to 2020. The husband has also made substantial contributions from the sale of shares in the family business which he accepts are part of the matrimonial pot (even though they have their origins in assets held prior to the marriage or inheritances during the marriage). On the quantification of the net value of the share sale proceeds I accept the husband's explanation that the figure was 1,562,181, notwithstanding a rather lower figure on the forms D81 filed in the 2019 proceedings with the husband's first wife. Further, the husband had the benefit in 2012 of the proceeds of sale of a gifted property called X Cottage, which were something over 200,000 and went into the marriage pot. The husband also earned a substantial income between 2009 and 2021 which he contributed to the marriage, although for a long time he had to make substantial payments to his first wife. The wife did not do much paid work but she did considerable work on refurbishing various properties, most obviously CD. My task is not, however, to weigh these contributions to provide a result after along marriage and some of the evidence in this case has come dangerously close to amounting to the "rummage in the attic" that Coleridge J warned against in G v G [2002] EWHC 1339.
- The issue of matrimonialisation is, in my view, rather a different one. Rights in a pension, unlike cash or property, rarely become 'mingled' during a marriage. They remain in the sole name of the person who earned the pension rights - that is just a feature of how pensions are held. They are never put into joint names. Where, as here, the pension rights have not been drawn down at all then they remain an un-mixed and un-utilised asset, but the source of future income. What does it take for it to be fair to treat such an asset as having been matrimonialised? Mr Warshaw has argued that, since the pension fund remains untouched, it can in no sense meet the Supreme Court test in Standish because it has not yet been translated into 'actual use and enjoyment'. In my view, whilst I recognise that these words do appear in the Standish judgment, this is too literal an interpretation. An actual use and enjoyment provides a clearer example, but a common intention to put the asset into use and enjoyment in the future could also in my view give rise to matrimonialisation if that intention was relied upon by the other party to his or her detriment. As I put it to Mr Warshaw in argument here, if, for example, one spouse said to the other words to the effect of, "if I contribute my 1,000,000 of cash to purchase a family home in joint names will you agree to treat your 1,000,000 pension as a joint asset, even if it remains in your name" and the other spouse agrees then (notwithstanding that the pension has not yet been put into actual use and enjoyment) that would amount to matrimonialisation in my view. A different conclusion would not be fair.
- So has this happened here? What is essentially relied upon here by the wife is a conversation which took place in 2013 when she received the gift of 1,500,000 from her father. It was agreed that there would be a purchase of CD, which was to cost 838,000 plus purchase costs and was then to have substantial refurbishment costs, initially at least funded by the wife to the extent of several hundred thousand pounds, and was eventually sold in 2023 for 1,600,000. This issue arose as to whether CD would be placed in the wife's sole name (since she was paying for it) or in joint names. The wife says, and I accept her evidence on this, that the husband asked for the property to be placed in joint names and said words to the effect of "it doesn't matter that I am not contributing to the purchase price because we will share everything equally in our marriage, everything comes and goes out of the same pot". It is not suggested that he made any specific reference to his pension in this conversation and there were other assets to which he could have been, and probably was, referring, most obviously his company shares (which eventually sold for a sum which was broadly equal to the wife's father's gift). It is a difficult question, but I have not been persuaded on the facts of the present case that these words could fairly give rise to the husband's pension rights thereby became matrimonialised. More, in my view, would be required to meet the Standish test.
- The consequence of these findings is that in terms of the justification for a pension sharing order on a sharing (as opposed to needs) basis only 55% of the husband's pensions should be taken into account. Translating this into a pension sharing figure (talking a broad rather than precise mathematical basis since Mr Nobbs' report doesn't precisely cover this eventuality, but broadly treating the arguments about the wife's Standard Life pension and lower state pension as cancelling out against the parties' age difference and the husband's Reassure AVC), this would translate into a pension sharing order of 27.5% of the husband's Quilter SIPP (with its current CE value of 3,043,327).
- It follows from all the above that I assess the wife's sharing claim as being for:-
- Mr Boydell has argued that the wife can make out a needs claim for in excess of this provision. In order to decide whether he is right about this I need to assess what the above provision will produce for the wife.
- In approaching this calculation, I need first to make a decision about her housing needs. Having heard and read all the evidence on this subject, and having taken into account the standard of living that the parties jointly enjoyed during the marriage, the ages of the parties, the duration of the marriage and the respective contributions, I have reached the clear conclusion that her reasonable housing needs are met by her remaining at the Bristol property . It is a reasonably modest city terraced home (I have seen the photographs) and in the context of this case it is reasonable for her to have this as her home. The husband will be able to afford something similar if he so chooses, or he could decide to retain AB and have a less valuable flat in London. I do not accept Mr Warshaw's argument that the wife should be required (as part of an analysis of reasonableness) to downsize her accommodation and I regarded the husband's case on this (with the provision of housing particulars for unsatisfactory, inadequate properties in Bristol) as a weak part of his argument.
- Further, I need to make a decision about her earning capacity, including 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. Of course she could earn something if it was absolutely vital; but this is a question of reasonableness. Given her age and health issues and the fact that she hasn't worked for more than a decade and the fact that the husband himself decided substantially to retire when he was about the same age as the wife is now, I have in all the circumstances decided that it is not appropriate for me to place into these calculations any figure for an earning capacity and it is reasonable to assume that she will have no earned income in the future. What she ultimately chooses to do is, of course, a matter for her, as it is for the husband.
- It follows from the above that it will almost certainly be necessary for the wife to take her pension income straight away (i.e. now rather than at her state pension age). I have the benefit of Mr Nobbs' calculations as to what particular levels of pension sharing order would provide for the wife in terms of gross annual income (including taking her own Standard Life pension taken straight away and her state pension when she reaches the age of 67). According to Mr Nobbs' table, a 27.1% pension sharing order would produce an annual gross income of about 50,000 per annum from all these sources in the event that she does turn a pension sharing order into an income now. Accordingly, a 27.5% pension sharing order would produce a little more than this, perhaps something in the region of 40,000 per annum net to meet her normal living expenses.
- Apart from her housing provision, most of the wife's remaining capital will need to be deployed to produce income. She will need to pay off her substantial debts ( 329,888) so the above provision will leave her living mortgage-free in the Bristol Property with cash of 394,766 ( 724,654 less 329,888). If I allow her a small cushion of cash (perhaps to have her wrist operations, though this is a matter for her) then she will have a Duxbury fund of about 375,000. Using the 2025-26 At A Glance tables, this would produce something in the region of 25,000 per annum net for 19 years or 20,000 per annum net for 26 years. It is, of course, a matter for her as to how she deploys the money in fact.
- I now need to decide whether the wife could properly mount a needs-based claim for more than this. Mr Warshaw would say no, because he suggests that all she needs to live on is about 44,000 per annum. Mr Boydell would say yes, because he suggests that the wife needs 84,000 per annum on which to live. It is not unusual in these cases for these figures to be manipulated to fit a case - on one side upwards and on the other side downwards - and in my view this has happened here in both directions. Having seen her spending budget and heard her giving oral evidence about it, and making a reasonable assessment of the wife's income needs in the context of the standard of living that the parties jointly enjoyed during the marriage and all the other circumstances (I accept the conventionality of the suggestion that it is reasonable to live off a little less when becoming older, though it doesn't always follow to any great extent), I reach the conclusion that a reasonable figure for the wife to have to meet her reasonable spending needs is in the range of 60,000 to 65,000 per annum.
- As it happens, this broadly matches the figures I have set out above on what income she will have on my determination of the case on a sharing basis. Many of these figures are, of course, approximations, but my broad conclusion is that on the facts of this case, the wife could not fairly justify a needs claim above the level of the sharing claim. On my analysis, the sharing claim and the needs claim produce broadly the same result and that is the solution which I propose to adopt. In my view an equal sharing of the non-pension assets combined with a 27.5% pension sharing order produces a fair outcome here.
- Accordingly, my order will be that:-
- I did not receive any submissions from Counsel on costs issues on the basis of alternative outcomes; but in view of the fact that the outcome of the case is somewhere between the two positions (the husband offered half of the non-pension assets and a pension sharing order of 8%; the wife sought half of the non-pension assets and a pension sharing order of 44% or a 38% pension sharing order and an extra lump sum), and in the context of the starting point of no order as to costs under FPR 2010 Part 28, I would like to give a provisional indication that the right order here is that there should be no order as to costs. If either side wishes to argue otherwise I will receive written submissions in the first instance.
- The only other issue I need to decide is the issue of chattels. The vast majority of the chattels issues were agreed between the parties and only a limited number of them was I asked to determine. I have listened to what each side said about this in their oral evidence and my decision (albeit fairly arbitrary) is as follows:-
- This is my decision and I invite Counsel to produce a draft order which matches these conclusions. I would ask that this should be done within 14 days and, if there are outstanding disputes, a report should be made to me setting out what the disputes are by the end of that 14 day period. I would accordingly request to have a response not later than 12 noon on 2nd February 2026.
- I am formally handing down this judgment by way of email on 19th January 2026 and the appeal period will run for 21 days from that date.
- Subject to any further submissions either party may wish to make, I propose to publish this judgment in anonymised form on The National Archives and invite Counsel to agree an anonymised and redacted version of this judgment for publication to prevent the identification of the parties by any reader; but allowing the reader to understand the decision and the reasons for it.
- Subsequent to sending out my judgment, and pursuant to paragraph 46 above, I have received detailed submissions from each counsel on costs. The wife has sought a costs order but the husband has been content to go along with my provisional indication of no order as to costs (albeit saying that he has a better case on costs than the wife). Although I have admired the tenacity and articulacy of the submissions, I have in the end not been persuaded to change my initial view that the fair outcome here is for me to make no order as to costs. In reaching this conclusion I have been cognisant of the FPR 2010 Part 28 starting point of no order as to costs and also that the eventual outcome was between the two open positions and the result had the feel more of a 'score draw' than a win for either party, each party succeeding on some issues but not on others. Further, also in the context of FPR 2010 Part 28, I have not been persuaded that I should make a separate or distinct order in relation to the relatively small costs incurred in each counsel producing written submissions on costs.
- Counsel have agreed an anonymised version of my judgment in accordance with paragraph 50 above which I am content to adopt for publication purposes. Neither party wishes the judgment to appear without anonymisation and redaction and I see no reason why I should override this position.
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