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20 AUG 2013

FINANCIAL REMEDIES: M v M and Others [2013] EWHC 2534 (Fam)

(Family Division, Eleanor King J, 14 August 2013)

The wife applied for financial provision following divorce in Russia under Part III of the Matrimonial and Family Proceedings Act 1984 from total assets of £107m, all of which were acquired during the 17-year marriage. £91.6m was held in 11 commercial properties used by the husband to trade from. The remainder was held in 8 English properties which it was claimed were held legally and beneficially by three companies and, therefore, the wife was not entitled to seek a transfer in satisfaction of her claim.

The wife claimed that the husband had retained the beneficial interest of four properties including his London home and she sought an order transferring to her all of the properties in this jurisdiction plus a lump sum order which she could attempt to enforce in other jurisdictions.

For the past 18 months the husband had failed to engage in proceedings and was in contempt on numerous counts including in failing to pay interim maintenance. He had however been moving company structures from one offshore haven to another.

The evidence pointed towards the husband retaining beneficial ownership of the properties. He had provided all of the purchase monies and files in relation to the properties were opened in his name. When it suited him, he placed property in his son's name. This had not been a tax mitigation scheme.

In applying the reasoning in Petrodel v Prest, the circumstances in which the properties were bought raised the presumption of a resulting trust. In light of the husband's failure to attend court or give evidence and repeated contempt the court was capable of drawing adverse inferences against him. The court had no difficulty in concluding that the inherent probabilities were that the husband and his companies had attempted to defeat the wife's claims and sought to disguise the fact that he retained the beneficial ownership of the UK properties.

Adverse inferences could also be drawn against the companies in their failure to file evidence, attend court and to proceed with a case of a tax mitigation scheme which did not exist.

The judge was satisfied that the husband had at all times retained the beneficial interest of the properties and the presumption did not arise. On the facts, the court could infer a common intention constructive trust.

The starting point for the wife's claim was that the assets were acquired during the marriage and therefore, should be shared equally and the husband had failed to present evidence to the contrary. The wife was awarded all of the UK properties including the husband's share of the balance of sale proceeds from the matrimonial home. In addition, notwithstanding the potential difficulties of enforcement, the wife was awarded a lump sum of £38m. In total she received £53m representing a half share of the ascertainable assets. Child maintenance for the two children of the marriage was awarded at £20,000 pa.


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