News

JM v KK 6/9/21[5] - First instance financial remedy - foreign element - low value assets - high costs - departure from equality of both liquid assets and pension - pension treated separately - child maintenance dealt with.

The parties were married in one ceremony in India in February 2005 and one in England in April 2005; they separated after 14 years of marriage.  They had one child nearly 13.  They had had a comfortable lifestyle often living abroad.  H was 50 and W 41.  H was earning £23,000 and W’s income currently negligible.  H’s pension value was £80,000.

In December 2019 H flew to England with the child.  Various family applications ensued.

On 23 December 2020, H petitioned for divorce (8 days before Brexit).

Children Act proceedings determined that the child should live with W but spend two months with H in England, H to collect and deliver back.

By the time of the final financial remedy hearing the parties had spent £150,000 on legal fees.

The remaining realisable assets (excluding H’s pension) consisted of:-  a two bedroom flat in Kent, in H’s name value £215,000, equity £130,000, two properties in India, one which W lived in with the child, with a net equity of £23,000 (discounted as W wanted to buy a parking space).  This was a 3 bed new build more spacious and modern property than H’s flat.  The other Indian property had negligible equity which W didn’t want.

Total realisable assets were £154,000.

W claimed that the EU Maintenance regulation (No 4/2009) applied.

The court held:-

  • the child needed the parents to be both adequately housed
  • in some circumstances equality might not produce a fair result; a diversion from equality was justified in the child’s interests so that each parent had adequate housing to look after the child when in their care
  • the courts discretion was not removed by the EU Maintenance regulation (No 4/2009) -  which required an arithmetical approach.

The court ordered:-

  • the Kent property to remain in H’s name
  • H pay W a lump sum of £48,000 made up of £43,200 plus £6,800 to assist her maintain herself for one year after which the court expected her to be self supporting
  • W retain the properties in India
  • The court considered the net effect:-
  • H would receive circa £80,000,
  • W would receive £23,000 equity (or 28,000 equity if she didn’t buy a parking space), plus £48,000 lump sum (less immediate debts).

In considering child maintenance, W sought one third of H’s income but the court had regard to the child maintenance formula and deducted the costs of flights to India, to effect a calculation.

In dealing with pensions separately, the court decided, and the parties agreed that 2/11 was built up during the marriage, but the judge departed from equality and awarded W a 25% share of H’s pension as being fair in the circumstances.

It is rare to find a case where the values are low and in line with many cases that come before us in Hampshire.  It seems clear that the judge was influenced by the standard of living provided by each of the parties accommodation, and not by values.

The fuller Lexis report can be found at https://www.lexisnexis.com/uk/legal/auth/checkbrowser.do?t=1631021035237&bhcp=1

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[1] The Lexis report does not specify the judge.  There is no report on BAIILI at time of writing.