Family Law Hub

AE v BE [2014] EWHC 4868 (Fam)

Application for financial provision in a very long marriage case.

  • Case No: FD13D03793

    Neutral Citation Number: [2014] EWHC 4868 (Fam)


    Sitting at the Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: Friday, 7th November 2014

    Before :

    Mr Justice Moor

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    Between :

    AE (Petitioner)

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    BE (Respondent)

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    Mr Robert Peel QC for the Petitioner

    Mr Jonathan Southgate QC for the Respondent

    Hearing dates: 3rd to 7th November 2014

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    1. I have been hearing an application for financial provision made by the Petitioner Wife, AE in Form A dated 17th July 2013. The Respondent is the husband, BE. I will call them Husband and Wife for the sake of convenience. I mean no disrespect by so doing.

    2. The Husband was born on 11th April 1939 in Cyprus of Greek Cypriot origin. He is therefore 75 years of age. He clearly had a hard early life in Cyprus. His mother died when he was only aged nine. He came to this county in 1959 with nothing. He initially intended to study. He has, since 2002, been residing again in Cyprus, Larnaca. He is a businessman, who has made his fortune in property refurbishment and letting.

    3. The Wife was born on 9th March 1939. She is, therefore, also 75 years of age. She is a homemaker. She lives in a property in North London, Property A. The property is held in the name of the parties' son B. It has a value of £1,800,000 but is subject to a mortgage of around £400,000. It is agreed that I should proceed on the basis that she has an entitlement to occupy the property for the rest of her life. This right of occupation has recently been valued at £100,000.

    4. The parties married on 18th June 1960. It was therefore an extremely long marriage. It is accepted that the parties started with nothing. All the assets have accrued during its duration. It was, however, what has come to be referred to as a traditional marriage. The Wife was the homemaker and child-carer. The Husband was the breadwinner.

    5. There are two children. The daughter, A, was born on 13th March 1964. She is therefore aged 50. The son, B, was born on 28th June 1966 so he is aged 48. Both have worked in one capacity or another for the family businesses. Very regrettably, the Husband has fallen out badly with both, but particularly with B. There is significant satellite litigation between them, which is extremely unfortunate. Very sensibly, however, it has been agreed that I should ignore the litigation in deciding this case.

    6. The Husband has another son C, who was born on 8th May 1997. He is therefore aged 17. His mother is Polish. Her relationship with the Husband has broken down but they live in Cyprus. The Husband pays C's' school fees at P High School, Cyprus as well as significant maintenance. I am told that the Husband and C are close.

    The business history

    7. When they met, the parties had no assets of any significance. Both were working in a factory making ladies' belts. They lived for a short period with the Wife's parents before renting their own home. The Husband had a number of different occupations. In February 1962, he began working for an insurance company. Whilst working there, he was able to get a mortgage via his employers at preferential rates. He bought a four storey house in poor condition. He converted the lower ground floor into a self-contained flat for the parties and the upper part of the house into bed-sits that were rented out.

    8. At one point, he owned a factory that was manufacturing ladies' blouses and shirts but he saw the writing on the wall due to the availability of cheap labour overseas to manufacture such garments. He therefore sold the business. He bought another dilapidated property in Finsbury Park which he extended, converted and renovated into a bed and breakfast hotel. He opened an Estate Agency Office in 1989 but was caught by the previous recession, so moved instead into running a letting and management business instead. Within 18 months, he was managing 500 properties, largely as I understand it for the Greek Cypriot community. The business made good profits and he reinvested them in acquiring properties, refurbishing them and renting them out himself.

    9. By the early part of this decade, he recognised that there was going to be an influx of EU citizens, primarily from Eastern Europe, who would require cheap accommodation. He began to specialise in small studio flats.

    10. As he has grown older, however, he has come to realise that residential properties require significantly more management than commercial properties. Given a wish to make life easier as he has got older, he changed policy and decided to begin to sell his residential properties and concentrate on commercial properties where the tenant is responsible for repairs.

    11. There is no doubt that, in this country at least, his business endeavours have been extremely successful. The companies have ended up owning properties worth many tens of millions of pounds and, even after allowance for the loans and mortgages, they have equity that also runs into tens of millions of pounds.

    12. In 2002, the Husband left this country and moved to Cyprus. I am satisfied that, at that point, he ceased to be either resident or domiciled here. It appears that he had three main motives for the move. First, he wanted to return to his roots and spend the latter period of his life in a climate that was, to his eyes, more congenial. He objected to my description of this as retirement although his description of his life there included a significant number of leisure activities. His second reason for going was to be near to his son, C. His third reason was to save tax. He realised that, once he was secure in his non-residence status, he would be able to transfer his shares in the family companies tax free to the children of this marriage, namely A and B, with the intention that B in particular would continue to run the companies.

    13. The Wife, however, did not want to move to Cyprus. She wanted to remain here with the children and grandchildren. At the time, she did not know about the Husband's affair and the existence of C. Although an unusual situation, she therefore continued to live in London, while he lived in Cyprus. They met up at various times both in London and in Cyprus. The Husband's relationship with the Mother of C got into difficulty. In 2008, C's mother contacted the Wife. This must have been a very difficult time for everyone but even then the marriage did not immediately founder.

    The corporate structure

    14. Once he was properly established in Cyprus, the Husband managed to achieve an acceptance by the UK Inland Revenue that he was neither resident nor domiciled here. He then proceeded to transfer part of his shareholding in the companies to the children.

    15. By then, the family businesses were being run through three main companies, X Limited, Y Limited and Z Limited.

    16. X Limited holds around fifty properties, either freehold or leasehold, mostly in North London. It also owns a number of ground rents. Some of the properties are commercial but the majority remain residential. The Single Joint Expert's valuation of these properties comes to some £37.5 million gross. There is £1.6 million on deposit but loans of just under £14 million. Many of these loans expire in 2016 and will need to be repaid or refinanced. The shareholding is now held as to 64% to the Husband (via a BVI company), 12% to the Wife and 12% to each of A and B.

    17. Y Limited holds sixteen mostly residential properties. They are exclusively in North London and have a gross value of £14.8 million. There is £1.7 million on deposit. Although the company does not have any loans or mortgages, there are guarantees in relation to the liabilities of some smaller companies. The shareholding is held as to 52% to the Husband (via a BVI company) and 24% to each of the children.

    18. Z Limited is the administrative company that runs the operation by collecting rents, maintaining the properties and distributing profits to X Limited and Y Limited. The shareholding is 50% to the Wife and 50% to B. The Wife says that she considers she holds her 50% on trust for A. In any event, it does not matter as the company has no intrinsic value.

    19. The Husband began to consider that B was not properly running the companies and, in particular, Z Limited. B was removed as a director of X Limited and Y Limited. He was replaced by A but the Husband's case is that the problems continued, such that he resumed his directorships of both X Limited and Y Limited in February 2013.

    The position in Cyprus

    20. The UK companies have been extremely successful. No doubt the buoyancy of the London property market has had something to do with that but it is equally clear that the Husband was the driving force behind creating very significant wealth. For a man who started with nothing, it was a great achievement. He has undoubtedly been extremely successful albeit that he was fully supported by the Wife behind the scenes as homemaker and child-carer.

    21. Unfortunately, after a few years in Cyprus, he decided to get involved in the Cyprus property market as well. I have no doubt that, at the time, it seemed a good move. The market there appeared to be doing well. Cyprus was about to join the Euro. Property prices were increasing and developers were making lots of money. As a property man himself, it is not surprising that he too wanted to get involved. I cannot criticise him for this. After all, with entrepreneurs, you cannot take advantage of the successes without equally accepting the consequences of failure.

    22. His business ventures in Cyprus fall into a number of different categories. I have come to the conclusion that I can place them into four different categories. First, there are a number of assets in his sole name. Second, there are flats in the Centre of Larnaca that were being rented out in the same way that the UK properties are rented out. Third, there are property developments in which the Husband was building a number of holiday homes for overseas purchasers. Both the second and third categories are held in a number of limited liability Cypriot companies but it is now entirely clear that the Husband has personally guaranteed their entire liabilities. Finally, there is an interest in a gym called T Gym. This was originally run by the Husband's nephew, D and a business associate but it is clear that the Husband is now entirely responsible for this company and the building from which it operates. Again, the Husband has guaranteed the bank debt and, he says, given his personal word to various third parties that he will honour other liabilities.

    23. There is no doubt that all these Cyprus ventures have been an unmitigated disaster. In 2008, the worldwide recession hit. Demand for properties collapsed overnight. Prices fell dramatically. Over extended property developers defaulted on their loans. The banks got into financial difficulty. In Cyprus, the problem has been magnified by the 2013 banking collapse that occurred just as most countries were beginning to recover from the problems. A large bail-out had to be agreed from the EU. Bank B, which had loaned money to the Husband, went under and became part of Bank A.

    24. The Husband defaulted on his loans. Litigation ensued. The property developments and flats in Larnaca are held by four different companies, A Limited, B Limited, C Limited and D Limited. The loans were in favour of Bank C, which is now a part of Bank D. There is a clause in the loan documents that, following default, the bank is entitled to charge interest at 14%. In consequence, the amounts owing in total in sterling are now approximately £12.9 million. Worse, they are continuing to accrue interest at the rate of just over £1.8 million pa.

    25. It is equally clear that the Husband is included as a Defendant in the litigation. A defence has been filed that relies on a number of matters but, in particular, alleged wrongdoing by the Bank in converting the loans from Yen to Euros and an allegation that the rate of interest is extortionate. The Husband says he has made numerous efforts to settle the litigation without success. He offered €8 million which was rejected. The Bank indicated it would be prepared to accept €9 million but when he offered that, it was also rejected. He says that the Bank has been heartened by other cases in which the Cypriot courts have held that interest at the rate of 14% is enforceable.

    26. On 7th October 2014, the Husband's Cypriot lawyers wrote to the parties indicating that the various defences filed on behalf of the Husband and the companies were likely to be rejected. There would probably be a hearing in 2016/7. Any shortfall over and above the value of the property companies would be pursued against the guarantors (namely the Husband).

    27. Antonis Loizou and Associates was instructed as Single Joint Experts to value the various properties. The Reports are dated 21st and 22nd October. A significant number of follow up questions have also been asked. I will have to return to this in due course as well as to the position regarding T Gym.

    The breakdown of the marriage

    28. The Wife's first divorce petition was dated 12th October 2011. On 14th November 2011, she applied and obtained a without notice freezing injunction due to an allegation that the Husband had transferred the shares in the family businesses to offshore entities in the British Virgin Islands. On 28th October 2011, the order was continued following an inter-partes hearing.

    29. On 1st March 2012, however, the first divorce petition was dismissed and the injunction discharged. The Husband had assured the Wife that her financial interests would be protected.

    30. Her second divorce petition is dated 17th July 2013, the same date on which she made her application in Form A for the full range of financial provision and transfer of property orders.

    31. On 22nd August 2013, the Wife applied, again without notice, to Hayden J for a further freezing injunction.

    32. The Wife applied for the injunction because the Husband instructed an employee, E to pay the rents direct into X Limited and Y Limited rather than through Z Limited. He confirmed to A that this is what he intended doing. The Wife was concerned that she would be deprived of her income that came to her, largely, via Z Limited.

    33. On 22nd August 2013, Hayden J ordered that the Husband was not to cause or procure the payments of rent due to be paid to Z Limited to be paid to anyone else. He was not to alter the terms of employment of any employee. He was not to diminish the value of any shares he held in a company without 28 days' notice to the Wife's solicitors, Farrer & Co and was not to dispose of, charge, deal with or diminish the value of any real property without similar notice to Farrer & Co.

    34. On 12th September 2013, the Husband filed a Statement. At that point, he was prepared for the injunction to continue provided various terms were agreed. One was that £110,000 per month should be paid to X Limited and £20,000 per month to Y Limited. I heard the case on 13th September 2013. I accepted the term as to the payments to be made to X Limited and Y Limited but, otherwise, rejected his terms. I continued the injunction. It is important, however, to note that the injunction as to not dealing with properties remained that he should not do so without giving 28 days' notice to the Wife's solicitors. As I had not heard oral evidence, I listed the matter for full consideration in February 2014.

    35. The parties filed their Forms E in November 2013. The Wife's Form E showed net assets of £2,055,237, the vast majority of which was her 12% interest in X Limited. She put her income needs at £63,106 pa, which reflected the relatively modest standard of living enjoyed by this family even after the businesses became successful. She indicated that her expenses were financed by B paying the mortgage on her home, Property A, as well as the outgoings. B and A also paid her £3,000 per month from Z Limited. The Husband provided her with £400 per week.

    36. The Husband's Form E deposed to net assets of £12.3 million and a net income of £256,000 pa I will have to make findings in due course as to the exact position. He put his income needs at £13,704 per month (£164,448 pa).

    37. When the matter came back before me in February 2014, the Husband's position was equivocal. He had filed a statement saying he wished the injunction to be discharged but had indicated at other times, including to Roderic Wood J on 6th February 2014, that he merely wanted a variation of some of the terms. By now, he was acting in person. The matter was fully contested before me. There were allegations that he had broken the injunction. I dismissed his application to discharge the injunction. Indeed, I made a fresh order that he was not to dispose of, charge, deal with or diminish the value of any real property without the consent in writing of the Wife's solicitors or an order of the court. I reserved the case to myself. I refused the Husband permission to appeal. So far as I am aware, he did not take the matter further.

    38. On 25th March 2014, a Decree Nisi was pronounced. It has not, as yet, been made Absolute.

    39. When the matter came back before me on 8th May 2014, the Husband was, fortunately, represented. It was clear that he had not complied with an order for directions made by Bodey J. The order recited that there was no reasonable excuse for this. I made further directions, particularly as to valuation and accountancy evidence. Thereafter, the Husband went back in person for a time. He tells me he was suffering from ill health caused by the stress of these proceedings. I have no reason to doubt that but, fortunately, he was restored to full health by the time of this final hearing.

    40. The FDR was heard by Holman J on 10th July 2014. By then, the Husband had instructed his current solicitors, Hughes Fowler Carruthers and leading counsel, Mr Jonathan Southgate QC. The Husband indicated that he wanted to litigate against his son, B. To this end, B was joined as a Second Respondent solely in relation to the potential claim as to the beneficial interest in Property A and the former matrimonial home, Property C, also now held in the name of B. Directions were made as to the filing of pleadings. The original directions had still not been complied with. Further time was given for this to happen.

    41. Both parties made applications on 14th August 2014. The Husband applied for declarations in relation to the two properties but his Points of Claim were served late on B. The Wife applied to commit the Husband to prison for alleged breach of my injunction.

    42. The matter came back before me on 2nd October 2014 on the PTR. To be frank, the case was in a mess. The directions had still not been complied with. Yet it was clear that the case had to proceed before me in November if humanly possible. Sense broke out. It was agreed that the Husband's litigation against the children in relation to three properties (Property B, Property A and Property C) would, if necessary, be dealt with separately in the Chancery Division. Property B is the property where B and his family reside. I very much hope that it will be possible to sort this aspect out without the need for further litigation following my decision. It cannot be good for this litigation to continue between a father and his children.

    43. The basis on which this litigation was "hived-off" was that any proceeds of such claims recovered by the Husband would form no part of these financial remedy proceedings. In other words, the Husband could keep any such money free of claim by the Wife. The only caveats were that the value of Property B subject to the asserted rights of B would be ascertained and I would proceed on the basis that the Wife is entitled to remain in occupation of Property A for the remainder of her lifetime regardless of the outcome of any litigation between the Husband and B. On this basis, B was disjoined as a Party.

    44. I made yet further directions to obtain the expert and other evidence. Fortunately, they were finally complied with. I directed that the Single Joint Expert accountant was to ignore any arguments as to minority discounts. I adjourned the committal application until after the conclusion of this hearing. I therefore make it clear that I am making no findings at all in relation to alleged breaches of my injunction. I have heard no evidence on the subject and have placed the matter completely out of my mind.

    45. The parties filed their respective section 25 statements on 17th and 29th October.

    46. I have already mentioned the valuation of the Cyprus assets. In addition, I have had two further Single Joint Experts' reports. First, I have a report from Harilal Punja Hirani of Anderson Wilde and Harris as to the valuation of the English properties. Second, Mr Charles Simpson of Saffery Champness, a Chartered Accountant, has produced a report as to valuation of the UK companies. He has also produced some supplemental information as to tax.

    The Open Offers

    47. The Wife's Open Offer is dated 27th October 2014. She seeks an equal division of the assets as I find them to be. She argues that the Husband should transfer to her all his interest in Y Limited, whilst she transfers to him all her interest in X Limited. She also seeks transfer of a number of smaller property companies, E Limited, F Limited, G Limited, H Limited, I Limited (held by J Limited) and K Limited Ltd (held by L Shareholdings Ltd). In some cases, this is merely because Y Limited has guaranteed liabilities of these other companies. She sought an indemnity from the Husband for all tax payable on these transfers and a balancing lump sum, including a transfer of Property B. She asks that the Husband pay her costs.

    48. The Husband's Open Offer is dated 29th October 2014. He seeks a transfer of the Wife's interest in X Limited (via M Shareholding Limited) and her 23% shareholding in T Gym Limited to him. He will settle any resulting tax liabilities. He seeks a declaration as to the Wife's life interest/irrevocable licence to occupy Property A, although I am not clear how that can be achieved given that B is no longer a party to this litigation. He argues that he should pay the Wife a lump sum equal to 40% of the assets after liabilities, payable in instalments over five years. There should be no order as to costs.

    The issues

    49. In opening, Mr Robert Peel QC for the Wife made it clear that there were three main issues I had to determine, namely:-

    (a) Computation of the assets. I have to decide the true value of the assets and liabilities. The most significant areas of dispute relate to the value of the Cyprus properties, the correct level of debt in Cyprus and the tax position in the UK.

    (b) Computation of the award. Should the Wife receive half the assets or 40% of the assets as assessed?

    (c) The structure of the award. Should Y Limited and various other companies be transferred to the wife in specie or should she receive a series of lump sums?

    The Law

    50. I am asked to make orders pursuant to the Matrimonial Causes Act 1973. My powers are to be found in sections 23 and 24. In order to decide whether or not to make such an order, I must apply section 25. It is the duty of the court to have regard to all the circumstances of the case. Both the children here are now adults, so they are no longer my first consideration. I must then have particular regard to the matters set out in subsection (2), namely:-

    (a) The income, earning capacity, property and other financial resources 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;

    (b) The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

    (c) The standard of living enjoyed by the family before the breakdown of the marriage;

    (d) The age of each party to the marriage and the duration of the marriage;

    (e) Any physical or mental disability of either of the parties to the marriage;

    (f) The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;

    (g) The conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it; and

    (h) The value to each of the parties to the marriage of any benefit which, by reason of the dissolution …of the marriage, that party will lose the chance of acquiring.

    51. I will return to many of these sub-sections hereafter. Overall, I must be fair to both parties in the way that I approach my task. At this point, I only need to refer briefly to two of the section 25 factors. First, it is rightly not alleged that conduct is relevant in this case. Second, the contributions of both parties to the marriage have undoubtedly been equal. It was made clear in the seminal House of Lords decision of White v White [2001] 1 AC 596 that there is to be no discrimination in Financial Remedy cases between the breadwinner and the homemaker, as each, in their respective roles, contribute equally to the family. Indeed, White goes on to decide that, in the absence of good reason to the contrary, the fruits of the marriage are to be divided equally. This is commonly referred to as the sharing principle. It is undoubtedly fully engaged in this case albeit that the Husband argues that there are good reasons for departing from equality. I will obviously return to this in due course.

    52. The authorities, particularly Miller/McFarlane [2006] UKHL 24; [2006] 1 FLR 1186, establish two other principles, namely satisfying the needs of the parties and compensation. Fortunately, the assets in this case are more than sufficient to cater for the needs of both these parties, whatever assessment I make of their true assets and liabilities. It follows that I do not need to consider that aspect further. The principle of compensation does not apply in this case as neither party gave up a significant earning capacity as a consequence of their respective roles within the marriage.

    53. I have been referred to a number of other authorities by counsel in the course of their written and oral submissions. Amongst others:-

    (a) So far as the valuation of the assets is concerned, I accept that I should make findings as to the present market value at the date of the trial (see Mostyn J in FZ v SZ [2010] EWHC 1630; [2011] 1 FLR 64 at Paragraph 118);

    (b) The court must look at the reality of the parties' financial affairs and intentions (see Mostyn J in BJ v MJ [2012] 1 FLR 667 at Paragraph 69);

    (c) Risk in relation to the valuation of an asset should, in general, be reflected in the valuation ascribed to the asset rather than by giving an increased share of the assets to the party retaining that asset (my decision in SK v TK [2013] EWHC 834 at Paragraph 52);

    (d) In general, fair sharing is achieved by a fair division of both the copper-bottomed assets and the illiquid and risk-laden assets (Thorpe LJ in Wells v Wells [2002] EWCA Civ 476; [2002] 2 FLR 97); and

    (e) The court should give considerable weight to the property arrangements made during the marriage (Thorpe LJ in Parra v Parra [2002] EWCA Civ 1886; [2003] 1 FLR 942.

    The respective assets schedules

    54. Perhaps inevitably, the respective contentions as to the correct schedule of assets and liabilities changed on both sides on a number of occasions during the hearing.

    55. By the conclusion of the submissions, the Wife was arguing for total assets, net of liabilities of £24,621,411. She was therefore seeking an overall award of £12,310,705. She provided detailed submissions as to how that should be achieved. In essence, it included the transfer of the Husband's 52% in Y Limited (£7,045,777); his 100% interest in K Limited (£2,418,941) and a balancing lump sum.

    56. The Husband, on the other hand, was contending for net assets of £9,922,917. By implication, he was arguing for an award of £3,969,166 payable over five years with the main payments being towards the end of that period. No figures were put forward for my consideration although Mr Southgate acknowledged candidly that, even if I was with him as to approach, I might decide to truncate the period for payment or, at the very least, require more to be paid at an earlier stage.

    57. It can be seen that there is therefore some £14.7 million between the parties' respective schedules. Although there are a number of smaller issues, the main differences are:-

    (a) £6.3 million in latent CGT payable, says the Husband, on a sale of the various companies;

    (b) £8.1 million in net Cyprus liabilities that the Wife almost entirely ignores; and

    (c) £300,000 relating to a company called N Limited that the Husband says I should ignore as the asset has been promised to a longstanding company employee.

    My assessment of the parties

    58. The Wife's evidence was, I think, the shortest I have heard in a hearing of this kind. Quite properly, the Husband did not challenge her save in a number of very minor respects. She was quite frank in telling me that she did not know about facts and figures. She was, however, adamant that she wanted Y Limited transferred to her. She made the very fair point that, if she had cash, she would have to invest it, so it made more sense for her to have some of the properties that are already there and live off the income they provide. She accepted that B and A would manage the properties for her but I am quite clear that this is not a reason for not giving her Y Limited, notwithstanding the differences between the Husband and the children. After all, if she had cash and bought properties, she would need a managing agent. She could easily appoint B or A to perform that function. It is entirely a matter for her what she does with her share of the assets.

    59. I make it quite clear that I accept her evidence. She is understandably distressed by the litigation between her Husband and the children. She wants it to end but, in essence, she supports the children. That is her right. She has made a full contribution to this marriage as child-carer and homemaker. She is entitled to a fair share of the assets generated during the marriage.

    60. Turning to the Husband, I was somewhat surprised by the way in which he gave his evidence. He has clearly done himself no favours by the way in which he has run the litigation up until recently. His evidence before me, however, was given with dignity. I consider him to be generally an honest witness who, subject to a few small points, did his best to give a full and frank account of his financial position and liabilities. He was polite and courteous. He gave consideration to his Wife's position. He was far more positive about the children than I had expected. At one point, he even said it would give him pleasure if they were able to help the Wife with her finances. He added that he would always be there to provide for them if they needed him. I have to say that I am not sure I believed him in that regard, certainly in relation to B.

    61. I have already indicated that I consider he is now restored to full health. I suspect this has helped him get a better perspective of the matter although it is entirely right to say that he did not indicate that he intended to do anything other than pursue his litigation against B to the end. He is a very able man. He still has enthusiasm for his work. He told me that, if you find a job that you love, you are not working when you do that job. The Cyprus situation does not appear to have overly disheartened him although I consider the breakdown of his marriage did get close to causing him to have a breakdown. It is to his credit that he has got through that period.

    62. I accept that he is a man of honour. He told me he wishes to do right by his creditors. Whilst I accept that, I do not believe that he considers he needs to discharge his liabilities to banks if he can legitimately avoid those liabilities. For example, I accept Mr Peel's submission that he invariably put the least favourable slant on his liabilities and, at times, exaggerated them. For example, he told me that it would cost him €250,000 to demolish a house he was building in Cyprus whereas Mr Loizou subsequently put the cost of demolition at €30,000. Although I have since been told that the Husband misunderstood what the €250,000 covered, I thought it was too high at the time and so it proved. On another occasion, he told me he owed €130,000 to a company called Company 1 in relation to works done at T Gym. He said the total liability was €190,000 but he had paid €60,000. When pressed, he said that this was just an estimate and a significant part of the work had not, as yet, been done. For example, the swimming pool ceiling was dangerous and had to be removed but the new ceiling has not yet been installed. Equally, a further liability was placed in the schedule of €123,200 for building a new floor at the gym. Close questioning by Mr Peel satisfied me that this was a quote, not a liability.

    63. He was also at pains to get me to accept that he will have to return to reside in the United Kingdom to sort out the companies and will thus be responsible for large amounts of tax. I do not accept this. He has always done everything in his power to avoid tax, entirely legitimately. He left the UK and received confirmation from the Inland Revenue that he was non-resident and non-domiciled such that he did not have to file tax returns. Indeed, he does not appear to have filed tax returns anywhere. Entirely legitimately, he moved his shareholdings to the BVI and transferred shares to the children tax free as a result of his status. He has used Cyprus, the Bahamas and Malta to avoid becoming habitually resident. He even considered using the Cook Islands.

    64. I accept that he has been in this country for more days this year than he would have wished but he has been dealing with his divorce. I do not know whether this assists him as I have not had expert evidence on the point but I am clear that he does not wish to remain here. He told me he did not want to live in England. I am satisfied he will find a manager for his businesses here and then move away again. Even if he was to become resident here, he will undoubtedly remain non-domiciled and so will only be charged to tax on the remittance basis provided he pays the annual charge, currently £30,000 pa.

    65. It follows that I have reservations as to parts of his evidence as to his liabilities although I entirely accept that the court cannot simply ignore them. I will have to assess each individually and reach a conclusion as to how to deal with them.

    Contingent award

    66. There was some discussion as to whether or not there could be contingent lump sums, or lump sum claims could be adjourned or the Wife could be given a share of the Cyprus assets. Having heard the case, I am satisfied that these possibilities are neither practicable nor sensible. There needs to be a clean break between these parties. This litigation has been hard fought and expensive. There is a significant lack of trust. The Husband controls the position in Cyprus so the Wife would be at a huge disadvantage. The offshore structure gives rise to all sorts of complications in the event of a contingent approach. Adjourning claims raises the realistic spectre of yet further litigation. In fairness, by the end of the submissions, neither party was arguing for such an approach. I therefore reject it. I must do the best I can.

    My conclusions as to tax

    67. It is accepted that there will be no tax on the transfer of the Wife's interest in X Limited to the Husband. She acquired the shares in 2011 during the re-arrangement of the shareholdings at a value greater than the value today. She can therefore transfer them to the Husband free of tax.

    68. The Husband includes in his schedule large figures for contingent CGT in the event of sale of the UK companies. The figures are £1,964,068 for Y Limited; £3,616,981 for X Limited; £75,446 for a company called N Limited; £51,357 for I Limited and £668,553 for K Limited. These total £6,376,405. In fairness, Mr Southgate recognised that I would be reluctant to take these figures at their full face value. Instead, he asked me to assess a fair figure.

    69. In one sense, the most significant is the figure of £1,964,068 in relation to Y Limited. The Wife is asking me to transfer this company to her now. If the tax was due, it would crystallise on the order for transfer. Mr Charles Simpson of Saffery Champness was asked to deal with this overnight before submissions. His response is dated 6th November 2014 and is in the following terms:-

    (a) The shares in the BVI incorporated companies would be treated as non-UK situs assets for CGT and IHT purposes provided the shares are registered in the BVI and the BVI is where the share register is maintained. This means that any gain realised by the Husband on disposal of the shares to the Wife would be a non-UK gain.

    (b) Even if the Husband was UK resident (as a result of the time he has spent here this year) but non-UK domiciled (as he clearly is) and he pays the remittance charge for the tax year in which the gain arises, the gain arising on the transfer of his shares will not be taxable on him provided the transfer is made outside the UK and provided the Wife does not liquidate the company and bring the proceeds of liquidation (which would include the gain realised on transfer) to the UK before decree absolute. In these circumstances, the BVI companies will not be making a disposal so there will be no gain in the companies to attribute to UK resident shareholders under s13 TCGA 1992.

    70. This corresponds with my own understanding. I am therefore satisfied that, if I do order a transfer of the shares to the Wife, there will be no tax charge to the Husband.

    71. So far as the general point is concerned, I am again satisfied that I should not include the latent CGT against any company the Husband is to retain. I am quite satisfied the Husband will never pay any such tax. First, his case is that he does not want to liquidate these companies as they are his life's work. It follows that this liability will not, in the absence of some completely unforeseen eventuality, accrue. I recognise, however, that the authorities require me to include such latent liabilities if the reality is that the asset's value is reduced by such amount. I am quite satisfied that, if the Husband ever did have to sell, he would ensure that he did not have to pay this tax. He has taken great care with his tax arrangements. He will ensure he is not resident at the time of sale. There is no reason for him to be here long-term. He can appoint managers and run the companies, so far as necessary, from abroad. Even if he was resident, which I consider highly unlikely, he would not be domiciled here. I am satisfied that he would not remit the proceeds save as absolutely necessary for his modest living requirements. It follows that it would be entirely artificial for me to include these extremely large amounts of tax. Indeed, I noted with interest that, in his statement, he said that one of the reasons he had to be here was so he could make proper provision for the Wife. It would be the height of irony if this enabled him to avoid paying to her half of some £6 million.

    N Limited

    72. N Limited is owned 100% by the Husband. It holds one property, Property D worth £310,000. This is an ex-Council House which was bought with the benefit of a discount from the previous tenant. At first, the case was advanced on the basis that the Husband owed a share of the proceeds to the previous tenant but this was sensibly abandoned. The previous tenant has been out of the property, I believe overseas, for some twenty two years without having been paid. Moreover, such a claim is inconsistent with the Husband's case that he has given the beneficial interest in the property to his faithful employee, F.

    73. F filed a statement dated 31st October 2014. The statement says that the Husband had promised F that the property "is my home and that it will always be mine". It also says that A said in 2012 that the Husband had said he would give it to him and that B had assured him it would remain his home. I decided to permit the statement to be adduced in evidence, even though it was very late. Mr Peel then decided he did not need to cross-examine F.

    74. I have rightly not been addressed as to the legal position although I doubt very much that F could claim a beneficial interest in the property on the basis of his statement. It is, however, true that he has been a very loyal employee and has resided in the property rent free for 22 years. I am satisfied that the Husband has an obligation to F to house him so long as he remains in his employ and, possibly, for life. I am dealing with these assets on the basis of their value to these parties. There is no intention to sell this property. If it had a value, it would be in its rental income but there is no rent due to the obligation to F. It may be that a different property has to be purchased for him given that his family has now expanded to three children but any such new property will not generate an income either.

    75. Mr Peel tried to argue that the Husband can do what he wants with his share of the assets but cannot dispose of the Wife's share. This would be a good argument were it not for the fact that I am satisfied that this moral obligation to F pre-dates the breakdown of the marriage by a large number of years. I have therefore decided to exclude this asset from the Schedule. I had considered part excluding it but took the view it would be too complicated to calculate some sort of discount. It is, however, to the Husband's advantage that I have excluded it altogether.

    Overall conclusion as to Company valuation

    76. It follows that I conclude that I should take the respective net values of the various shareholdings in the UK property assets as follows:-

    (a) Husband's 64% in X Ltd
    (b) Wife's 12% in X Ltd
    (c) Husband's 52% in Y Ltd
    (d) Husband's 100% in I Ltd
    (e) Husband's 100% in K Ltd
    (f) Husband's 100% in G Ltd
    (g) Husband's 100% in F Ltd
    (h) Husband's 100% of E Ltd
    (i) Husband's 100% of H Ltd

    The Cyprus properties

    77. Mr Loizou produced a series of reports as to the valuations of the Cyprus properties. The valuations are impressive. They are detailed and comprehensive. Mr Loizou is clearly very experienced and reliable so far as the Cyprus property market is concerned. It is, however, clear that he has found the exercise extremely difficult. I am satisfied that the Cypriot property market has basically collapsed. There is a very significant excess of supply over demand. I suspect that it is difficult to get mortgages. Cash will therefore be king. So far as the fourteen apartments in Larnaca are concerned, the Husband told me that he had been unable to secure payment of rent. He had taken possession proceedings but they had been very expensive and elongated. He was unable to enforce his money judgment for the arrears and he had therefore allowed the flats to be occupied rent free by the needy. Whilst this may not have been sensible, I gained the impression that he had basically given up trying to make it work.

    78. Mr Loizou recounted all the difficulties and said that the "unprecedented measures has had its effect on local property demand and values which is not, as yet, clear". He therefore based his opinion "more on past experience as opposed to present days [non available] data". Having valued the properties, he said he would expect a sales period not earlier than 1 ? years and it "depends on lowering of prices which would be as high as 30%". This evidence does not surprise me in the least.

    79. He applied the same techniques in relation to the property developments. Indeed, in relation to some of these, he said "Considering all the above, as well as the downward trend of values, frequent reassessment of the property is recommended. Therefore, the property offered can be regarded, under the circumstances, as being not a reasonable marketable asset." In one case, he even talked about lowering prices "which would be as high as 30% to 35%". This does not surprise me either. So far as these developments are concerned, the Husband managed to sell three properties before the crash but has not sold any since. Whilst I do not think he had made any determined effort to do so, I am clear that there were not ready purchasers and that, if he had sold, it would undoubtedly have been at knock down prices.

    80. Further questions were put to Mr Loizou. I think he found it hard to answer them. In a letter dated 5th November, he said that "you are giving me a hard time as you can appreciate". He indicated that single sales might lead to lower discounts of around 15%, stating that the 30% figure was for a sale of the whole. Whilst I accept his evidence, I do not believe that there are individual purchasers for all these units. Moreover, I accept that the position in relation to the litigation with the bank is now critical. The rate of interest accruing requires very rapid sales. The Husband should undoubtedly be considered a forced seller. I have come to the clear conclusion that I should allow discounts of the full 30% as suggested by Mr Southgate for the Husband.

    The Building on I Street

    81. I have indicated that the Husband owns three properties in Cyprus in his sole name. These are Property E, a shop in Protaras and land/part built property at I Street.

    82. The land/part built property at I Street has caused a further issue. The Husband says that the part built property has to be demolished as it is not as he wishes and was built in breach of planning permission. He says he cannot sue the architect as it was one of his nephews.

    83. The Husband has made numerous mistakes in Cyprus, most of which will have led to a reduction in the Wife's award due to the liabilities. I have already made the point that an applicant has to take the rough with the smooth. I consider, however, that the land at I Street is a mistake too far. The Husband is a property man. He should have been supervising this development. I am going to deny the demolition costs (now known to be €30,000) and add in the value of the existing building (€100,000) on the basis that these problems could and should have been avoided.

    84. I accept that these three properties are security for the T Gym Limited liabilities but I am taking those into account elsewhere. It follows that the valuations of the solely owned Cyprus properties are:-

    (a) Property E
    (b) Shop in Protaras
    (c) Land at I Street
    (d) Building on Land

    T Gym

    85. T Gym has been another disaster. I accept that the Husband got involved for the best of motives due to a wish to help another nephew, D. Vast sums of money, however, had been spent on building a gym on land owned by a citizen of Northern Cyprus. D is only a tenant with the land administered via the Turkish Cypriot Administration. The Husband had to guarantee the loans but argues that he does not have the benefit of the value of the tenancy, put by Mr Loizou at €200,000.

    86. I accept that the Husband could not have foreseen the economic collapse but he is now keeping open a gym that appears to be losing €13,000 per month and is in a state of disrepair. There is no roof on the swimming pool as it had to be removed because it was dangerous. He also argues that he has had to take on a number of other liabilities including one for €183,642 to an organisation called C Organisation, which appears to have been for the installation of an air conditioning system and other similar works. There is no documentation to support this debt, nor the amounts to Company 1 re: the swimming pool roof and the new floor.

    87. I accept, as does Mr Peel, that the liabilities to Bank A must be included. They total some £707,708. I do not, however, accept that the other liabilities should be included. I am not convinced that all have yet been incurred (such as the cost of the new swimming pool roof) or are reasonable (such as the further floor). In so far as they are genuine, I intend to offset them against the value of the gym (€200,000). The Husband cannot argue that he is responsible for all the liabilities but D should be treated as having the benefit of the tenancy. It follows that T Gym will be included at a liability of (£707,708).

    The liabilities to Bank C

    88. I now turn to the issue of the liabilities to Bank C. After allowance for the value of the properties (discounted by 30%), the negative equity is a staggering £7,378,422. Worse, it continues to increase at a rate of £1,805,381 pa.

    89. I entirely recognise that the Husband had hoped to conclude a deal at a total liability of €9 million but this has been rejected. The advice of his lawyers is that he will lose the case and Bank C is emboldened by their success in previous cases in establishing that an interest rate of 14% is fair.

    90. Hughes Fowler Carruthers for the Husband wrote to the Husband's Cypriot lawyers on 31st October to ask for further information. The reply is dated 4th November. It confirms that the Husband is a personal guarantor and that the Bank can proceed against him personally. This includes applying for him to be made bankrupt. The letter indicates that the writer considers this likely given the disastrous financial position in Cyprus. The one bit of good news is that the Bank will not be able to proceed against two other Cyprus registered companies, K Limited Ltd and I Ltd that hold properties here as "these companies are not related with the loans in any way". The letter indicates that this extends to his English assets. I take this to mean the English companies as it goes on to say that:-

    "When the judgments will be issued by the Courts in Cyprus and there are no appeals filed against the said judgments, NBG is entitled to proceeds (sic) in England with all the relevant measures for recognition and enforcement of the issued judgments pursuant to EU Regulation 44/2001 or EU Regulation 805/2004 for European Enforcement Orders."

    91. I have found this the most difficult part of this case. I have, with some reservations, come to the conclusion that I should allow the entirety of the debt as at today's date. I recognise that the Husband may be able to do a deal at a lower figure. This, however, has to be balanced against the fact that the interest continues to accrue at an alarming rate. There is no obvious immediate way of stemming the interest as he has, in essence, to discharge the UK loans (£14 million) before he can ship money out to Cyprus from London property sales. I suspect the vast majority of the creditors of the Bank in Cyprus will have virtually no other assets. This is most certainly not true of this Husband. If they pursue anyone overseas, it is likely to be him.

    92. Section 25 requires me to consider "the financial needs, obligations and responsibilities" of the parties. These personally guaranteed debts in Cyprus are undoubtedly an obligation and responsibility of the Husband. Whilst I realise that the court has to be realistic as to this, I accept that this Husband is an honourable man. I consider he will take all reasonable steps to reduce this liability (and he may succeed) but I am proceeding on the basis that he has been and will continue to have at the very least, a presence in Cyprus. I take the view that this court cannot divide the assets on the basis that one party can be made bankrupt and that does not matter. It does matter. He has built up the assets and must be in a position to discharge his liabilities. Therefore, by the narrowest of margins, I have decided to allow the liability in full. I will not, however, be allowing future interest. This is an aspect he must now sort out for himself. On the balance of probabilities, I find that he will be able to do so.

    93. I have already indicated that he may be able to succeed in doing a deal with the Bank. Having allowed the liability in full, I consider that this is relevant to the issue of risk in general. The Husband cannot say that the court should factor in risk by reducing the Wife's share when the court has already deducted the liabilities that give rise to that risk in full.

    94. It follows that the liabilities of the various Cyprus property companies are as follows:-

    (a) A Ltd (£5,513,630)

    (b) B Ltd (£1,761,544)

    (c) O Ltd (£87,955)

    (d) C Ltd (£15,293)

    (e) T Gym Limited (£707,708)

    Total (£8,086,130)

    Overall computation of the assets

    95. I have not mentioned some of the other assets/liabilities. For example, the Husband has cash deposits at various banks (converted to sterling) of £771,927. He has liabilities of (£1,188,416) of which (£1,102,111) is owed to the bank and (£86,305) in costs. He also mentioned various accountancy and legal debts. Although not evidenced in writing, I have no reason to doubt he has incurred such liabilities in dealing with the Cyprus litigation. I allow them at (£65,000).

    96. The Wife has the right to occupy Property A, valued at £100,000. She has bank accounts containing £38,370 but owes (£260,000) in costs.

    97. Using the spreadsheet provided by the respective counsel, I calculate the totals as follows:-

    (a) Husband £14,425,075

    (b) Wife £2,305,433

    Total £16,730,508

    Computation of the award

    98. I have come to the clear conclusion that, having computed the assets, this is a clear case for equal division. I have factored risk into my assessment of the Husband's liabilities. I do not see how, thereafter, he can ask me to do so again in relation to departure from equality. In any event, the only remaining risk is the fact that X Limited has £14 million of loans that Y Limited does not have. I cannot see how this is a risk that justifies departure from equality given that X Limited has the assets to repay these loans in full.

    99. The Husband will be receiving the Wife's shareholding in X Limited (12%). He already holds 64%. He will therefore have control with 76%. Again, he cannot argue that this is a risk factor.

    100. This was almost as long a marriage as comes before these courts. Both parties have made a full and equal contribution, albeit in their different spheres. Special contribution, which was tentatively put forward by the Husband at one point, was rightly abandoned. Indeed, given my findings as to the Cyprus debacle, it would be impossible for the Husband to argue for a departure on this ground.

    101. It therefore follows that the Wife is entitled to an award of £8,365,254.

    Structure of the award

    102. I have come to a very clear conclusion as to the correct structure of the award. I reject as being unfair and wrong the submission that the Wife should receive only cash. I accept Mr Peel's submissions that any such solution is fraught with difficulty. This is perhaps best evidenced by the fact that Mr Southgate, for reasons that I entirely understand, has been unable to put forward any figures or timescales for payment. This Husband has to sort out the very considerable difficulties in Cyprus. He has to find £14 million to discharge the loans to the banks on X Limited that fall due in 2016. I simply cannot accept that the right solution is to require him to find a further sum in excess of £8 million to pay to his Wife just so that he can hold on to Y Limited as well.

    103. I do not accept the Husband's arguments that giving the Wife shares in Y Limited would fall foul of the authorities in any way. After all, it would be a fair sharing of the resources by type (per Wells). She already has shares in X Limited so it does not fall foul of the decision in Parra either. Given that the Husband will be able to continue running X limited , it is not inconsistent with the other authorities raised by Mr Southgate, such as D v D & B Ltd [2007] 2 FLR 653 (Charles J) to the effect that a wish to permit a party to continue to run a company should be permitted if at all possible.

    104. I do not consider that the Wife's lack of experience in managing a property portfolio is sufficient reason either. The recipients of awards in the Family Court have to invest the resources they receive. Investing in residential property is as good a way of proceeding as any. If the Wife received a lump sum, she could simply buy residential properties. It is then entirely up to her to decide on who should manage them. Over ten years ago, the Husband reposed trust in B. Whether he was mistaken in doing so (or not) is not a matter for me but there is no reason why the Wife should not repose such trust in him as well. Even if the Husband is right, she is an adult and "on her own head be it".

    105. I have already mentioned that my solution does not prevent the Husband from continuing to run a property business. Moreover, X Limited has assets worth over double that of Y Limited. I reject the suggestion that the borrowing outstanding on X Limited means it is unfair to give Y Limited to the Wife. The Corporation Tax on sales of all the assets has been taken into account. I see no real difference between X Limited and Y Limited just because X Limited has loans that Y Limited does not have. This is not awarding one party the plums and the other the duff. Property companies can easily generate liquidity by sales. Relatively quickly, X Limited could be in exactly the same position as Y Limited, namely loan free. It is also of some note that the Husband's strategy is to sell residential properties and move to commercial ones. It is therefore not inconsistent with this strategy to transfer the largely residential properties in Y Limited to the Wife.

    106. I have therefore come to the clear conclusion that I should transfer the Husband's shareholding in Y Limited (held via P Limited) to the Wife. This amounts to £7,045,777 of her award. It is sensible that she should also receive I Limited (via transfer of the shareholding in J Limited) as it owns the property occupied by A. She should also get G Limited, F Limited, E Limited and H Limited as there are cross-guarantees in relation to those companies. In some cases, this involves her taking on liabilities.

    107. I have decided that she should not receive K Limited. It holds largely commercial properties, which is the Husband's area of expertise.

    108. The Wife asked for a transfer of B's property at Property B, which is owned by X Limited. I decline to so order. Apart from the issue of jurisdiction, I accept Mr Southgate's submission that it would be in breach of the agreement to exclude anything to do with the litigation between the Husband and B.

    109. The Wife's interest in X Limited (£2,427,063) will be transferred to the Husband. It is held in a company called M Shareholdings Limited. It therefore follows that the Wife's award is computed as follows:-

    (a) Property A
    (b) Her bank accounts 
    (c) Her liabilities 
    (d) Y Ltd
    (e) I Ltd
    (f) G Ltd
    (g) F Ltd
    (h) E Ltd
    (i) H Limited
    (j) Lump sum

    Other provisions

    110. I propose that the Husband pay the lump sum in fifteen months from today. There will be interest by way of maintenance until payment in full at the rate of £80,000 pa reducing proportionately if there is a part payment in advance of the one year deadline. There will be a section 28(1A) direction to prevent extension of the term. If payment is not made on the due date (namely 7th February 2016), interest will accrue at the High Court Judgment Debt Rate of 8% (which is over £128,000 pa).

    111. The transfers are to take place within 28 days but they are to occur before Decree Absolute. This will be on the Wife's undertaking not to repatriate the shareholdings to the jurisdiction until after Decree Absolute. On that basis, there is no need for indemnities in relation to either set of transfers. I recognise that the Husband cannot be ordered to transfer the shares prior to Decree Absolute. If he fails to do so, however, he will be taking an enormous risk. There is no indemnity. The Wife will be free to apply for Decree Absolute in 28 days and, if necessary, the court can sign the transfer forms. The Husband would then be responsible for any tax unnecessarily incurred.

    112. The Wife will transfer her shares in X Limited to the Husband forthwith on his transferring his shares in the other companies to the Wife.

    113. The Wife holds 100% of the shares in T Gym Limited. There is a document indicating 23% of this are held on trust for D. She is to transfer all the shares to the Husband forthwith after she has received the shares in the other companies. There cannot be any tax so I am not ordering an indemnity.

    114. There will be a clean break in life and death on payment in full so far as the Wife is concerned and immediately on transfer of the shares in X Limited and T Gym Limited, so far as the Husband is concerned.

    115. Mr Peel has set out a number of other provisions in his draft order. I have not heard Mr Southgate on these matters so will not rule on them at this stage. I indicate, however, that provided the Husband complies in full with the share transfers by the due date, I am not presently minded to order further security. I consider it would not be practicable to do so. The properties remain in this jurisdiction so I do not see that it is a significant concern for the Wife.

    116. There are joint and several personal guarantees given by the parties in relation to a number of the companies. They are set out in the bundle at C-182. I very much hope the parties will agree cross-indemnities but, if they do not, there will be a contingent lump sum in the amount of any guarantees involving X Limited or K Limited that have to be paid by the Wife and for Y Limited and the other companies if paid by the Husband.

    117. The freezing injunction in relation to X Limited, K Limited, N Limited and Cyprus will stand discharged. It will remain in relation to Y Limited and the other companies the Wife is to receive until compliance with the transfers.

    118. I have decided to make no order as to costs. There is a presumption of no order. I have taken outstanding costs fully into account in my calculations. I accept that the Husband has, at times, litigated unreasonably but he was ordered to pay the costs of the injunction proceedings, in part on an indemnity basis. I consider that to be a sufficient penalty.

    119. I am very grateful to both advocates and their instructing solicitors for the immense help given in relation to this difficult case. Nothing more could have been said or done on behalf of either party.

Judgment, published: 19/10/2015


Published: 19/10/2015


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