Financial Remedies Case Study
Black Antelope Law was instructed by LW (the wife), to file for divorce and make a financial remedies application against AW (the husband). The parties had one son, who was 9 at the beginning of the case.
After the firm’s attempts to negotiate with AW re finances without the need for court proceedings failed due to AW’s failure to engage, Black Antelope Law filed a financial remedies application with the Family Court. Our instructions were that AW had a substantial workplace pension that would be due to be paid out in the near future and that this was the sole matrimonial asset. Approximately 1/3rd of the value of the pension had been accrued during the duration of the marriage.
The Court made the usual financial disclosure orders to include the filing of the Form E. At the First Appointment, LW had complied whilst AW was in breach. In Court, AW also confirmed LW’s suspicion that he had inherited some monies recently (£10,000). AW was warned by the Judge not to dissipate his inheritance pending the proceedings, with the caveat that he could use some of the monies to cover funeral costs he had incurred and to deal with any necessary expenses. AW was also given an extension of time to file his Form E and supporting evidence before the Financial Dispute Resolution hearing (“FDR”). A costs order was made against AW.
In breach of the court’s order, AW again failed to file his financial disclosure and was given another extension of time to file his form and evidence ahead of the FDR. At the FDR, AW was still in breach and as a result, an unless order was made that if he did not file and serve his Form E and supporting information, to include evidence of his pension CETV (or at least proof he had requested the pension documents) he would be debarred from producing evidence in the proceedings and the court would be at liberty to make a final order. The case was listed for a final hearing in a few months time.
Although AW eventually filed some documents ahead of the revised Court deadline, it was not the complete documents ordered by the Court and no evidence that he had tried to obtain his pension value was filed. In breach of the court order, a month before the final hearing, AW filed substantial financial documents, including information about his substantial pension (the only sizeable asset in the case), but did not make an application for relief. AW also disclosed that he had received a tax free lump sum payment of £112,000 a week ago from his total pension of £550,000. AW’s financial disclosure showed that he had spent all his inheritance monies and that he had been gambling some of his monies away.
Without prejudice to the fact AW was in breach, Black Antelope was instructed by our client LW to negotiate a settlement in the lead up to the final hearing now that the pension value was known. Both parties exchanged open offers with LW wanting both a capital (cash) lump sum and a pension share settlement of almost equal value broadly equivalent sum to X% of the assets. AW’s position is that he wanted to offer LW’s a small capital sum and a relatively larger sum by way of a pension sharing order broadly equivalent to X% of the assets on the basis of the length of the marriage and the fact he needed to purchase a boat to live in as he was set to lose his workplace accommodation on retirement shortly. The parties were unable to reach a settlement outside of court.
2 working days before the final hearing, AW disclosed that he had spent half of his lump sum pension payment on a boat purchase and therefore, he would be unable to offer LW a substantial capital sum and offered to make up the balance of his offer with monies from the pension share.
Regrettably, the day before the trial, the court adjourned the case due to a lack of judicial availability and a new date was not for several months. Distressed, LW instructed Black Antelope Law to make a without prejudice offer to settle the case on enhanced terms as a result of AW’s conduct. The settlement proposal was accepted by AW, but given AW’s conduct to-date, Black Antelope Law insisted that the capital element of the new settlement should be held by AW’s solicitors to ensure he did not dissipate his assets any further pending an updated CETV and the lodging of a consent order with the Court. Although the new condition was agreed by AW, he subsequently breached this by failing to make payment of the cash sum agreed to his solicitors to hold to his order pending a final sealed order.
As a result, Black Antelope Law was instructed by LW to withdraw her without prejudice offer and make an application to court for the unless order to be given effect to. As a result of the AW failing to provide his updated CETV, a final order was not achievable, but the court ordered AW to pay LW £30,000 on account and reserved the issue of costs to the final hearing. The firm was also to obtain an order requiring AW’s pension provider to disclose to us directly the CETV details.
At the final hearing, AW failed to file a s.25 statement and provided limited updating disclosure. His open offer was that in addition to the cash sum paid on account, LW should receive a pension sharing order of 12.33% of his remaining pension as only 1/3rd of the pension had been built up during the marriage. The firm’s position on behalf of LW was that taking into account all the circumstances of the case (including AW’s litigation conduct and lack of ability to pay any costs order), LW should be awarded 33.1% of the remaining pension.
At hearing the evidence of both parties and submissions, the Judge made a pension sharing award of 33.28% in LW’s favour (the additional award was made on the basis that in the Judge’s opinion, AW would be unable to contribute to the administrative costs of administering the pension award).