Family Law Hub

S v S [2008] EWHC 519 (Fam)

  • Neutral Citation Number: [2008] EWHC 519 (Fam)

    Case No: FD05D04835



    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: 19/03/2008

    Before :



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    Between :



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    Katharine Davidson (instructed by Gordon Dadds) for the Applicant

    Jane Rayson (instructed by Symons & Gay) for the Respondent

    Hearing dates: 11/10/2007

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    This judgment is being handed down in private on 19/03/08 It consists of 12 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.

    The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

    Sir Mark Potter, P :

    1. This is an appeal by a respondent husband against an order made by District Judge Segal perfected on 3 May 2007 upon an ancillary relief application by the applicant wife. The parties were married in 1994 and separated in 2005. There are no children of the marriage. A Decree Nisi was pronounced on 13 January 2006 which, at the time of the hearing before the District Judge, had not been made absolute.

    2. Refreshingly, as recorded by the judge, the proceedings were remarkable for their freedom from acrimony and the honesty and straightforwardness of the parties in their dealings and evidence. No children were involved and the parties had agreed that, after their 11 year marriage, their assets, which included the proceeds of sale of two properties and the parties’ pensions, should be divided equally between them. This was sufficient for each to satisfy their separate housing needs and to be left with a Duxbury fund yielding income for the future, but not at a level sufficient to provide for the wife’s future maintenance needs. The principal matter in issue remained the amount and period for which periodical payments should be ordered, the parties agreeing that the assets and circumstances were such that a clean break order was not appropriate. As recorded by the District Judge at paragraph [27] of his judgment, the questions he had to decide on the basis of the issues as canvassed before him were (i) how much was it reasonable for the wife to spend on a house (ii) what would her income be when she had bought it, (iii) by how much should that income be increased by periodical payments, (iv) should the husband pay periodical payments for joint lives or, as proposed by the husband, for five years only, the amount reducing over the period to allow for and encourage an increase in the wife’s earning capacity. In the event the District Judge made an order for periodical payments at the rate of £50,000 per annum on a joint lives basis.

    3. The circumstances of the parties at the time of the proceedings were as follows. The joint net assets agreed to be shared between the parties were just under £3 million, plus pensions of £350,000-odd. There was also an EBT of doubtful value from which the husband was expected ultimately to benefit and which the parties agreed would be split equally between the parties when that occurred. The principal assets were (1) the proceeds of a flat in Rosary Gardens which had been the matrimonial home in London, where the husband had continued living following the break-up of the marriage. However he had recently sold it for some £900,000 and had moved into rented accommodation pending his purchase of a new home. He put his capital housing need at £900,000, which was accepted by the wife. (2) Shornhill Farm in Gloucestershire, which the parties had bought as their country home and which was suitable to accommodate their horses (three for the wife who is a talented rider participating in eventing, and one for the husband).

    4. During the marriage the parties had split their time between the two properties, the wife spending 2-3 days a week in London and the rest in Gloucestershire, while the husband spent the weekdays in London and joined her at the weekend in Gloucestershire. She was still living in the farm at the time of the proceedings, but it had been for some time been up for sale at an asking price of £1.95 million (£1.89 million after deduction of costs of sale). It has since been sold and the proceeds divided. Before the District Judge, the wife put her capital housing need at between £900,000 and £1.25 million. This would enable her to purchase a property within a reasonable catchment area of Shornhill Farm large enough for her to keep her horses, the husband having put his horse out with friends who looked after it on the basis that they could use it as a hunter.

    5. There was a substantial underlying issue relating to the determination of the husband’s future income and, in particular, how long he was likely to continue to earn at the levels revealed by his figures for the last three years. The husband was enjoying a successful career as an investment banker. In the years 5 April 2005 to 5 April 2007 inclusive, in addition to his annual gross salary of £100,000 (net: £64,668,) he received bonuses as follows:

    Y/E 5 April 05: £178,200 (net: £113,912)

    5 April 06: £93,300 (net: £59, 781)

    5 April 07: £242,300 (net: £145, 380).

    6. It was his position that he would like to leave the city within a year to eighteen months. He feared he might be made redundant if a recent change of focus in his work was not successful and, while he enjoyed his work, he enjoyed the country more. He said that, as soon as he had sufficient funds to support himself in the country, he would leave his job, preferably within a year to eighteen months, but at any rate before five years. For that purpose he acknowledged that he would have to re-train for a new job, possibly involving animals. The wife was highly sceptical of this position. Her case was that the husband was driven by money, enjoyed his work, and was likely to work even harder when the conclusion of the ancillary proceedings in order to make up for lost ground. She would herself have preferred a clean break but, in the light of (a) the agreement that there was insufficient capital for that to be achieved (b) the standard of living enjoyed throughout the marriage and (c) the wife’s limited earning capacity (which she put at £12,000 per annum) a clean break in relation to maintenance was not appropriate or achievable without the wife experiencing undue financial hardship and the outcome being unfair when balanced against the factors set out in s.25 of the Matrimonial Causes Act 1973 (“the 1973 Act”). She conceded that, if and when the husband was made redundant and/or gave up his job to move to the country there should be a downward variation and/or a clean break but, meanwhile, a joint lives order was appropriate. She sought an award of £56,000 on the basis that, if the husband’s net bonus was taken at the average figure over the previous three years i.e. £106,000, having taken account of investment income, he would have almost double the wife’s net disposable income for himself.

    7. The District Judge accepted the wife’s argument. At paragraph 4 of his judgment he stated:

    “It is common ground … that this is not a clean break case and I have come to the conclusion that it would be risky and unfair to both parties to make findings as to their long-term future incomes… I have come to the conclusion that [the wife] is unlikely to earn more than £15,000 p.a. gross (say £12,000 p.a. net) in the foreseeable future, say during the next two or three years, but she may do so; and that the husband will probably leave the City within two or three years, but that he may not do so. To attempt to see further than this into the future and make a term periodical payments order, I think would or might result in unfairness to one or both of them, if my findings turned out to be wrong. I consider that it would be fairer to both parties to make a joint lives order on the basis of their earnings for the next two or three years, and leave it to them to come back to court if and when their respective circumstances change. I think the expense and nuisance of having to come back to court is potentially less damaging than the risk of making an irreversible order that turns out to be based on incorrect figures.”

    At paragraph 10 of his judgment he added:

    “The husband acknowledges that in order to live in the country he will have to re-train. I should have thought (although this is, of course, entirely a matter for him) that his plan would be to stay in the city for two or three years and accumulate enough money to live on in reasonable comfort while he re-trains. I therefore think it reasonable that he should stay in the city for the next two or three years, it would be short-sighted to leave too soon and that, should he leave too soon this should not, without the fullest enquiry, be allowed to affect the wife financially.”

    8. The District Judge then proceeded on the basis that, if the husband stayed in the City, his total net income over the next two or three years would be £160,000 made up of his net salary of £60,000 plus net bonus of “say £100,000”. The way in which he reached that figure appears from the following passage in his judgment:

    “[8} The 2008 bonus may not be as much as that for 2007, which was £145,380 net but, doing the best I can, I think that he must have a reasonable chance of getting at least as much as his lowest bonus for the last three years i.e. the 2005 bonus, which was £114,000 net which, giving him the benefit of the doubt, I will round down to £100,000 net.”

    9. The District Judge was in fact in error in identifying the 2005 bonus as the lowest of the last three years. The lowest bonus was in 2006, namely some £60,000 net. When this was pointed out to him following receipt of his reserved judgment, he none the less made no adjustment in the award of periodical maintenance for reasons which he set out in an addendum judgment (see further below).

    10. In relation to the wife’s income and/or earning capacity, the position was as follows. The wife conceded an earning capacity of £12,000 per annum net. At the time of the marriage in 1994 she had been employed full-time as the personal assistant to the Deputy Managing Director of a financial public relations company, earning about £17,500 net per annum. However soon after the marriage the wife gave up that job at the request of the husband. Thereafter she worked part-time, both employed and subsequently self-employed, as an interior decorator. Much of her time was spent in Gloucestershire during the week, overseeing works of renovation and decoration in the successive properties which the parties had in Gloucestershire, she living there as her principal home and looking after the horses which formed a major part of her life.

    11. From the late 1990’s the wife continued her part-time employment as an assistant to an interior designer in Gloucester and did one day a week of book-keeping in London. In 2004 she earned £8,000 net including income from investments and in 2005 £9,500 net on the same basis. She ceased work as a design assistant and during 2006 carried out an interior decorating contract on her own account worth £100,000 gross for which she had recently been paid a 10% fee (i.e.£10,000) at the time of the proceedings. Her estimated income for 2006 was £8,750 net. She intended to continue earning money from interior decorating and put her earning capacity in that respect as around £12,000 net per annum, which was more than she had earned to date.

    12. It was her case that she had given the best years of her career to her eleven year marriage and was not now in a position significantly to increase her earning capacity. She contended that, given the standard and lifestyle enjoyed by the parties during the marriage, it was appropriate that she should be able to re-house herself in accommodation in Gloucestershire in a house with enough land for her two horses. On this basis, if she acquired a property in the range £900,000 - £1,250,000, she would be left with a Duxbury fund yielding £12,000 - £24,000 depending upon the amount of capital used. The shortfall between her estimated income needs of £81,300.00 and the £12,000 - £24,000 yielded by the Duxbury fund by means of periodical payments on a joint lives basis of £44,000 - £56,000 net per annum.

    13. The husband’s budget was comparable – some £84,000 excluding livery for his own horse. His position was that it was not reasonable for the wife to seek a property the price of which was governed by her desire to keep horses. His argument was that, out of the £1.4 million approximately which she would receive, she should spend no more than £600,000 on a house (a sum which would exclude the possibility of sufficient land to keep a horse) and invest £800,000 to produce a Duxbury income of £35,000 to £36,000 per annum. If she wished to keep horses she should pay livery for them. On the basis that, over a five year period, her earning capacity would rise from £12,000.00 per annum net to £30,000.00 per annum net, he offered a five year term maintenance order of £20,000 in year 1, £20,000 in year 2, and £10,000 for years 3, 4 and 5.

    14. As already indicated, upon the evidence before him, and in considering whether or not a term order was appropriate, the judge found himself in a dilemma which he felt unable to resolve because of his uncertainty as to the husband’s intentions and whether or not he would in fact continue his successful City career. He resolved their dilemma in the manner already quoted at paragraph 6 above.

    15. So far as the wife’s earning capacity of £12,000 net for the foreseeable future was concerned, the judge accepted the wife’s case. He observed that the job which she had been in when she married and had given up at the husband’s request had involved very long hours. While she appeared to have good organisational and administrative skills, the advertisements for jobs paying more than £12,000 net which the husband produced and relied upon as appropriate for her were well beyond her compass. At paragraph 12 of his judgment the Judge continued:

    “In any event, the wife does not want a 9-5 job, because this would not give her enough time with her horses. I am not qualified to say whether or not it is because she has no children that she is so devoted to her horses, but it is clear that she is devoted to them. She said: “Horses are my family. I see them everyday. When the older ones see me they whinny at me. You form a very close bond with horses”. The husband very fairly said: “I agree that her major activity outside work is her horses”.

    The judge continued:

    “[13] I do not think that this [is] one of those cases where the wife has to go out to work all the hours she can, or re-train for a job which she does not particularly enjoy, simply to lessen the burden on the husband. I think that for the next two or three years at least, and I can not look further ahead than that, she is entitled to share in the husband’s success, and live as nearly as possible in the way in which she lived during the marriage, see [16] below. If at the end of two or three years, the husband has been made redundant, or has given up working in the City because he cannot stand the pressure any more, then both of them will have to expect to reduced standard of living even if her interior design work is successful.

    [14] The quality of life for both parties is an important consideration. While the husband works long, demanding – but rewarding – hours in the City, he is entitled to enjoy what he earns and live in a £900,000 flat in London but then, in my judgment, the wife is equally entitled to live in the house of her choice, with immediate access to her horses – which requires a few acres of land – rather than having them at livery. I think that a reasonable sum for her to spend on house and land would be £1 million. This would leave her with £400,000.00 to invest i.e. a Duxbury income of say £20,000.00 p.a.

    [16] The wife’s budget is just under £80,000 p.a. including her horses, and the husband’s just over £80,000 excluding his horse. I do not consider either budget to be unreasonable… I do not think that this is a needs case. I take into account that the parties’ high standard of living during the marriage – the husband said that they spent about £140,000 to £150,000 p.a. – and I do not think that £50,000.00 p.a. is too much for the wife. This would give her a net income of £82,000 p.a., leaving the husband with £110,000 year net, plus his investment income from that part of his share of the £1,400.000 which he does not spend on a house or flat in London. If, as he would like to do, he spends £900,000 on accommodation, he is left with a Duxbury of £500,000, say £25,000 a year, giving him a net income of £185,000 p.a. including bonus or, after paying his wife £50,000, £135.000 p.a. Even if I am over optimistic in finding that he is likely to get £100,000 bonus for 2008, he will certainly get a bonus, and if I allow him, say £75,000 bonus (half his 2007 bonus), he will never the less earn £160,000 p.a. so that, after paying the wife £50,000 he will be left with £110.000 p.a. I am satisfied that in any event his net income will be more than the wife’s for the next two or three years, and I think that periodical payments of £50,000 are entirely reasonable.

    16. I have added emphasis to the last paragraph quoted because of its significance when considering the submission of Miss Rayson for the husband that the District Judge’s mistake as to the husband’s bonus figure for 2005 goes to the heart of the judgment.

    17. The District Judge certainly did not think so. Having been informed of his error on 21 March 2007 he stated as follows in a written addendum judgment:

    “[2] My intention was that [the wife] should have £50,000.00p.a., provided that her total net income, which I put at £82,000.00 p.a. was not more than [the husband’s] I did, in fact, round £114,000.00 down to £100,000.00, and considered an even lower figure i.e. £75,000.00 because of the amount of speculation involved. [This was a reference to the italicised passage in his judgment to which I have referred]. If I take [the husband’s] bonus as £60,000.00 this gives him an annual net income of £60,000.00 salary plus £60,000.00 bonus plus £25,000.00 Duxbury income – total - £145,000.00 so that, if he pays [the wife] £50,000.00 p.a. she gets £82,000.00 p.a. and he is left with £95,000.00 p.a., which is not as much as I thought he would have, but nevertheless 54% as compared with her 46% which, particularly bearing in mind this order is likely to be reviewed in the next few years is, I think, entirely fair.”

    18. In attacking the District Judge’s award, Miss Rayson advances five strands of argument. First, she relies strongly upon the provisions of s.25A of the 1973 Act which emphasises (i) the duty of the court to consider whether it would be appropriate so to exercise its powers that the financial obligations of each party towards each other will be terminated as soon after the grant of a decree as the court considers a just and reasonable and (ii) that where the court decides to make a periodical payments order, it should in particular consider whether it would be appropriate to require those payments to be made only for such term as would in the court’s opinion be sufficient to enable the party in whose favour the order is made to adjust without undue financial hardship to the determination of his or her financial dependence from the other party.

    19. S.25A has or course recently been described by Baroness Hale in McFarlane v McFarlane [2006] 1 FLR 1186 as:

    “… a powerful encouragement towards securing the court’s objective by way of lump sum and capital adjustment rather than by continuing periodical payments. This is good practical sense. Periodical payments are a continuing source of stress for both parties. They are also insecure. With the best will in the world, the paying party may fall upon hard times and not be able to keep them up [130] … it is also the logical consequence of the retreat from the principle of the lifelong obligation. Independent finances and self-sufficiency are the aims.” [133].

    20. Miss Rayson submits that the District Judge must clearly have failed to have these provisions in mind. He allowed the structure of the periodical payments order (joint lives rather than for a term) to be dictated by his findings as to what it would be reasonable for the wife to earn and how much she could reasonably spend on housing. Miss Rayson submits this was not a case in which the resources were so plentiful that the wife could be permitted the luxury of not working full-time 9 to 5 so that she could spend time with her horses, while at the same time spending the greater part of her capital fund on housing, a measure governed by her wish to provide accommodation for her horses.

    21. Second, Miss Rayson submits that in dealing with the wife’s earning capacity, the District Judge’s conclusion that she was unlikely to earn more than £12,000 net during the next two or three years was not reasonable. She had worked full-time at the beginning of the marriage and her move to part-time work was not influenced by any factors such as the need to provide childcare. To assess her earning capacity at such a low figure and build in no expectation that she would take steps to increase it within a defined period, and by refusing to impose a staged term order as advocated by the husband, was to accord the wife insufficient incentive to achieve independence and was out of kilter with the S.25A objective.

    22. Third, as to the question of housing need, by allowing the wife’s devotion to her horses to dictate her housing needs (i.e. requiring a stable and a small paddock) was to augment the price of an appropriate property to an unreasonable degree. His finding that she needs £1m to rehouse herself with horses was unreasonable in that it limited her investment fund to only £400,000. If he had put her housing need at £600,000 she would have had £800,000 to invest, producing some £35,000 per year.

    23. Fourth, while Miss Rayson concedes that the District Judge was entitled to take into account the parties’ standard of living during the marriage, she submits that in effect he promoted the wife’s standard of living at the expense of the husband. The effect of the order was to leave the wife’s lifestyle virtually unchanged (and indeed that was the intention of the Judge) while leaving the husband based in the City for the next few years when he too had a desire to withdraw to the country.

    24. Finally, Miss Rayson submits that, so far as the quantum of periodical payments is concerned, even if the Judge was right in his conservative findings as to earning capacity, it could not be right that he did not adjust the figures contained in his main judgment downwards when the mathematical error in his calculations was pointed out to him. She notes that the Judge himself stated that the husband would have “not as much as I thought he would have” but nevertheless declined to change the figure.

    25. In approaching these submissions, I bear in mind the principle emphasised by Miss Davidson in the course of argument that, for an appeal from a district judge to be successful, it should be demonstrated that there has been some procedural irregularity or that, in conducting the necessary balancing exercise, the district judge has taken into account matters which were irrelevant or ignored matters which were relevant or has otherwise arrived at a conclusion which was plainly wrong and could only have been reached if the Judge erred in the balancing exercise (see Cordell v Cordell [2002] 1 FLR 207). I also bear in mind the observations of the House of Lords in Piglowska v Piglowski [1999] 2 FLR 763 concerning the advantage of the first instance judge in seeing and hearing the parties and evaluating the facts on the basis of their evidence and the importance of assuming that, unless the judge has demonstrated to the contrary, he was aware of the functions he should perform and the matters he should take into account. She submits, and I would agree, that that principle is of some importance in this case and not least in relation to S.25A.

    26. As to Miss Rayson’s first submission, I do not think I can or should conclude that the District Judge failed to have in mind the provisions of that section. While the District Judge did not in terms refer to it, the overall context of the parties’ dispute, the principal matter at issue between them and the whole tenor of the judgment are directed to the question of how far a clean break was appropriate or feasible, and whether a term or joint lives order was appropriate in the particular circumstance of the case.

    27. The District Judge’s reasoning in that respect was dictated by his view that, on the evidence before him, he was unable to make a finding as to whether or not the husband would indeed leave the City in two or three years time in accordance with his expressed intention, which was of course critical to the likely level of the husband’s future income. I consider that the District Judge was entitled to take the course he did if, as he stated, he regarded it as the fairest course, compared with the alternative of a term periodical payments order which was likely to result in unfairness to one or both of the parties. While the terms of s.25A require the court to consider carefully the making of a term order, nothing in that section, nor the observations of Baroness Hale to which I have referred, suggest that the court is required to depart from the overall requirement of fairness between the parties as reasonably perceived by the District Judge. I do not consider it unreasonable for him to have taken the view that a term order was inappropriate. If, despite the husband’s declared intentions before the District Judge, he continued to work successfully and be well remunerated in the City, then the order would continue to be appropriate. If the husband did indeed make his move to the country with a consequent downward turn in his financial position, the District Judge was expressly recognising the need for a return to court in the absence of agreement. His view that this was overall less likely to produce unfairness than the husband’s proposals was a tenable view. Last, while it is arguable that the District Judge’s decision went against the grain of s.25 (A), it is common ground that a lump sum order was not available as a solution and the District Judge’s approach , as clearly stated at paragraph 4 of his judgment (see para. 6 above), certainly cannot be said to be plainly wrong.

    28. As to the wife’s future earning capacity, the position was as follows. Apart from the first couple of months of the marriage when she was still working full time in financial public relations and making £17,500 per year, she did not at any stage have anything approaching the earning capacity of £12,000 net per annum which she conceded and the Judge consequently accepted. Because of the pressure of long hours demanded by the job, within a couple of months of the marriage taking place, she resigned in order to concentrate more on their married life together. It was her evidence, (though the husband disputed it), that she resigned at his request. In subsequent part-time work in interior design and/or basic bookkeeping, she had earned £7,000 net in 2004, £8,200 net in 2005, and £9,000 net in 2006. The District Judge accepted her evidence that she lacked enough recent experience to do any of the jobs the husband was suggesting and that it would not be worth while her applying. I see no basis for disturbing the Judge’s finding as to her earning capacity.

    29. The wife’s wish was to continue to work at more or less the same rate and in the same fields (interior design, book-keeping etc) as she had worked throughout the marriage, which would enable her to continue enjoying her horses. In short, she asked to be able to enjoy a similar, albeit somewhat reduced, standard of living to that enjoyed throughout marriage. The District Judge clearly took the view that resources in the case were such that that was an achievable and reasonable aim for the time being. The wife’s evidence was that she had worked for four days a week for some years in differing capacities i.e. most days as an interior designer, one day a week as a bookkeeper and, more recently, one day a week as a personal assistant. At the date of the hearing, she was looking for part time office work to supplement her interior design work and the District Judge plainly accepted that her efforts were reasonable. I do not consider that there is any good reason to disturb his findings that, on anything less than a full time employment basis, her earning capacity in the next few years was no more than £12,000 net. Nor, as I have already indicated, do I fault the District Judge’s view that, for so long as the husband remains working in the City with an income to match (which the District Judge took to be a minimum of two or three years) it was not right to expect the wife to work full time so that she was left with no time for her horses or her eventing, which both parties acknowledged had reasonably, and by common desire, been a major feature of their lives while the marriage subsisted.

    30. As to Miss Rayson’s third and fourth submissions, I accept that, had the means of the parties been insufficient to permit the husband comfortably to accommodate the wife’s continuing desire to keep up her life with horses, then it would have been unreasonable for the District Judge to assess a figure for her housing needs sufficient to accommodate them. However, so long as the husband continues in the City at a level of income well able to accommodate the wife in respect of an aspect of her life which was integral to the marriage, I am not prepared to hold the District Judge’s solution was unreasonable or unfair.

    31. During the marriage, the horses plainly played a major part in the wife’s life with the consent and encouragement of the husband. All the more so, after she lost a baby in 2001 and the husband gave her a third horse (a foal), to celebrate their 10th Wedding Anniversary in 2004, to add to her own two horses, which she had bought herself for £20,000 out of a personal inheritance in order to develop her eventing. It was the husband’s case that, on break up of the marriage, the horses were an unjustified extravagance and that the wife’s housing needs could be properly satisfied by purchase of a house which had no facilities to keep horses for about £600,000, and that she should keep one horse only which could be put out to livery while she worked a full time week. The wife, on the other hand, (who did not accept that £600,000 was enough in any event and whose rejection of the examples of houses produced by the husband in that price bracket the judge appears to have accepted) wished to keep her three horses. The husband conceded that, whether the wife had two or three horses, it was cheaper to keep them at home with a full time groom than to put them out to livery. The wife did not in fact claim for the cost of a full time groom. On the basis that she only worked part time, her claim in respect of the cost of her three horses only included a part time helper. There were thus two competing “packages” of proposals. The wife’s case was that she should be permitted to keep up her life style with horses so long as the husband’s means permitted, and the husband’s case was that there should be an immediate change to a long term pattern, whereby the wife’s previously consuming interest and activity in eventing should be abandoned in favour of a requirement to take a full time job, maintaining a single horse simply for the purpose of weekend recreation and exercise. The District Judge accepted the package put forward by the wife as constituting the fair solution, so long as the husband’s income level was maintained.

    32. The District Judge plainly also accepted that, if the husband’s stated intention to quit his job and withdraw to the country was in fact realised, then a drastic reappraisal and adjustment would be necessary. However, short of that occurrence, fairness dictated an award which gave the wife the means to retain her horses and to afford her the opportunity to enjoy them and to continue her eventing activity on the basis of part-time employment only. I do not consider it right to characterise that position as promoting the wife’s standard of living at the expense of the husband, but rather as holding that it was fair in the circumstances for the wife to continue to enjoy what had been such an important feature of the parties’ life together, given the husband’s current and continuing ability, short of withdrawal from the City, to continue to finance it.

    33. What the District Judge did not say, and it is important that the wife should appreciate this, was that, if the husband was made redundant or in fact acted upon his stated desire for an early retirement in two or three years time, it would be reasonable for the wife to continue to maintain her horses at his expense. On the contrary, in those circumstances they would become an unjustifiable extravagance. For my part, I would observe that the wife should realise that it would be both foolish and ill-advised not to start planning for her future now on the basis that, if the level of the husband’s income drops substantially, and she wishes to retain her horses, she will need to devise her own ways and means of doing so out of her own earning capacity or her ability to exploit the property which she buys in order to retain them, whether by the supply of livery to others or by such other means as she can devise.

    34. Finally, I do not consider that the mistake of the District Judge in identifying the year and amount of the lowest bonus received by the husband between 2005 and 2007 should be regarded as invalidating his eventual conclusion.

    35. Miss Rayson has not argued (and even, had she argued, I would not have accepted) that the reasoning of the District Judge as stated in his addendum judgment, namely his underlying intention that the wife should have £50,000 per annum provided that her total net income did not exceed her husband’s, should not be accepted at face value.

    36. I do accept from the terms of the judgment and the addendum judgment taken together that the District Judge considered it right to make his award upon the basis of the minimum bonus received by the husband during the previous three years, rather than the average figure for which the wife had argued and which, in my view, would have been a reasonable figure to take. However, the Judge made clear in his addendum judgment that he had indeed, acted on a broad brush basis, rounding down the figure of £114,000 (which he believed to be the minimum figure) to £100,000 and even considering a lower figure than that. Had the District Judge effected his calculations on the basis of the husband’s average bonus, which would have been reasonable approach, the final strand of Miss Rayson’s submissions would have been unarguable. By maintaining his original view following reconsideration, even though it meant that the husband would receive less than he thought, I do not consider that the final outcome can be regarded as plainly wrong, or that it is one with which I should be persuaded to interfere.

    37. This was an unusual case, the result of which depended upon the particular position of a wife whose talent with, and love for, horses had during the marriage been a prominent and accepted feature of the parties’ lives. In my view it was peculiarly one for the “feel” of the District Judge in the particular circumstances and, for the reasons I have stated, I would dismiss this appeal.

Judgment, published: 19/03/2008


Published: 19/03/2008


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