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ANCILLARY RELIEF: MD v D [2008] EWHC 1929 (Fam)

Date:23 DEC 2008

(Family Division; Sir Mark Potter P; 19 December 2008)

After a 4 year childless marriage the wife sought financial relief from the husband. The wife, aged 52, was a recently qualified barrister; the husband a circuit judge aged 70. The wife had assets of £45,479, the husband assets of £562,272; there were in addition jointly owned assets, excluding pensions, of £895,151. A complication was that the husband had forfeited part of his pension to provide the wife with a widow's pension, the benefit of which had been lost on divorce. Although currently the husband's income was higher than his needs, it was likely to reduce to match his needs within a year or two, on retirement. The wife's income was currently below her needs, but rising. The judge considered that the wife needed to supplement her pension provision for the future, and provision for her housing needs, which he commented were 'significantly more than £260,000', the sum suggested by the husband. The judge went on to award the wife a property, subject to mortgage, with equity of £287,400, (about 37% of the joint assets) on the basis that this left her over housed, plus periodical payments of £20,000 for the first year, £15,000 for the second year, £10,000 for the third year, and thereafter a clean break. The wife appealed, arguing that this was insufficient to meet her acknowledged pension need.

This was a difficult case, in which there were insufficient assets to meet both parties' reasonable needs without a substantial reduction in the expectations on both sides. The district judge had failed to specify the amount the wife would need to rehouse herself. The district judge should have produced rough calculations to see whether or not fairness had been achieved, focusing particularly on their respective needs rather than on the distinction between the matrimonial property or 'acquest' and the property brought into the marriage. Assuming a minimum housing figure of £310,000, the judge's award left the wife with something in the region of £15,000 to use in pension provision, on any view an inadequate sum. A fair order would have provided £50,000 by way of a kick-start to the wife's future pension provision. This would have left the wife with 41% of the joint assets, and would have achieved overall fairness. The husband was therefore required to pay an additional £35,000, within 18 months of the date of the order, bearing in mind the current difficulties in the financial and property markets.