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Family Law

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21 MAR 2014

H v H [2014] EWHC 760 (Fam)

(Family Division, Coleridge J, 18 March 2014)

Financial remedies - Periodical payments - Change of circumstances - Clean break

The full judgment is available below.

The husband and wife divorced after a 22-year-marriage and a financial order was made in favour of the wife in 2005. They had two now adult children together. In 2007 the periodical payments order was increased to the sum of £150,000 pa on a joint lives basis. The husband now planned to retire from work in 2015 when he would be 56 and he sought a termination of the financial order in its entirety. The wife resisted the application on the basis that it was premature and that she did not believe that the husband would completely retire.

The husband's second wife was battling terminal cancer and had only 2 years to live. The husband wished to secure his financial position so that following her death he could parent their two young children full time.

During the proceedings the wife altered her position and now sought fresh orders considering the parties long-term positions. She sought £2.6m in return for a final termination of the periodical payments order to be payable upon the husband's retirement.

The husband now had total capital assets of £5,679,985 (including pensions) while the wife had assets of £2,784,826. The husband would also receive significant payments following his wife's death but the court proceeded without taking those into consideration. For 2013 the husband was expected to earn £800,000. The wife earned a small amount as a counsellor although at the outset of the marriage she was well paid in the financial services industry and had given up her career to be a full-time mother.

This case could be distinguished from McFarlane v McFarlane [2009] 2 FLR 1322 given that the husband was imminently due to retire at which point there would be a dramatic reduction in his earning and his earning capacity. However, there was undoubtedly a compensation element to the case.

The wife had been fairly treated by the courts in the past but if a clean break could be achieved it would be an appropriate time to do so. She had been able to save £1m in previous years from her periodical payments and, therefore, her annual budget could be reduced. A fair and generous annual budget would be for £80,000 per year.

With regard to the wife's entitlement to a compensation element that would be reflected in the treatment of the wife's equity in her home and her savings. The wife had resources of £1.5m, allowing an element of compensation to that figure, those resources provided an annual income of £55,000. The husband was ordered to make a lump sum payment of £400,000 to top up that annual income to £75,000.

The fully referenced, judicially approved judgment and headnote will appear in a forthcoming issue of Family Law Reports. A detailed summary and analysis of the case will appear in Family Law.


Neutral Citation Number: [2014] EWHC 760 (Fam)

Case No: FD04D08250



Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 18/03/2014

Before :


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Between :



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Mr Philip Marshall QC and Mr Harry Oliver (instructed by Payne Hicks Beach) for the Applicant

Mr Patrick Chamberlayne QC (instructed by Stewarts Law) for the Respondent

Hearing dates: 3, 4, 5 and 7 March 2014

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Approved Judgment



[1] I shall call the parties husband and wife although they were divorced by decree absolute as long ago as 2005. This application dated 5th November 2012 is by the husband to terminate the joint lives periodical payments order in favour of the wife made originally in 2005 and later varied on 20th June 2007. The present order is in the sum of £150,000 per annum.

[2] The husband seeks that the order be terminated without any further payment with effect from the date of his actual retirement from full time work as an accountant which he plans to be in the summer of 2015, when he will be 56. Until the second day of this hearing the application was completely resisted by the wife who maintained that it was premature and so should not be heard at all until the husband actually retired. Her reason for maintaining that was because she said that the husband's financial position after retirement was not sufficiently clear or well known, and she did not, in any event, believe that the husband would actually fully retire, in the sense of ceasing to continue to generate earnings altogether.

[3] However, during the course of her oral evidence the wife changed her position. She then said, particularly after questioning from me, that she did now think the court should consider the long term position of the parties and make any new orders accordingly. So, for the first time, when her counsel came to make his final submissions the question of the quantum of a terminating payment was considered and calculated. I think the wife's change of position took Mr Chamberlayne QC, her counsel, a little by surprise and he was therefore constrained to offer submissions by way of actual calculation only for the first time at the very end of the case. He submitted the proper capital payment for the husband to pay in exchange for a final termination of the periodical payments order would be £2.6m by way of addition to the wife's current capital. He maintained that that should be payable upon the husband's retirement in 2015 or "whenever it actually occurs" if later.

[4] The husband does accept that any termination of the current order should only take effect from his actual retirement. He will in any event not seek to disturb the order for periodical payments, which he makes for his daughter currently set at £22,000 per annum. However, his essential case is that he would like to be able to plan and that is the underlying motive he says for his application now. This desire to be able to plan is especially necessary because of one of the truly tragic features of this case. His second (present) wife who is only 41 years old, is very seriously ill with terminal cancer. She has already undergone much long and very painful treatment and the best prognosis that is available is that she is not expected to survive beyond the next 2 years at best. Indeed it might be a much shorter period. And the husband and his present wife have two young children who the husband said that he wished to be in a position to parent full time after the death of his wife, their mother. Understandably he wants to know where he stands.

Background and Chronology

[5] I will now deal with some of the important facts which form the background to this application.

[6] The wife is 55 and the husband will be 55 in June of this year. The parties met in 1980 when they were trainees at a well known accountants firm in the south of England. They were married on 30th July 1983, and the same year the husband qualified as an accountant. The wife also qualified as an accountant in 1984 and initially secured work at a major London department store as the manager of their internal audit department.

[7] As long ago as 12th March 1984 the husband began working for what is now a major city financial service provider, although at the time I think it was one of the firms which later amalgamated with that now enormous international financial services firm. He has remained with that organisation throughout. In 1985 the wife became the group accountant for an investment trust which was the parent company of the department store. In 1985 the husband worked for 2 years on secondment with a bank.

[8] In 1986 the parties moved to west London, where they have both made their home ever since. In the same year they moved to a 3 bedroom property in that area which they bought for £100,000. In 1986 also the wife began to work for a competitor department store as their chief accountant. She continued to do so until 1990 when she ceased her employment, taking favourable redundancy terms. In total therefore the wife worked in steadily improving positions for about 6 years prior to starting to produce a family.

[9] At this stage the wife was pregnant with the parties' first son who was born in July of that year; so that makes him now 23 years old. He is self supporting. In January 1992 the parties moved to the Far East to allow the husband to further his chances of becoming a partner in the firm. The strategy was apparently effective because later in that year he was indeed made a partner in the Far Eastern office. In December of that year their daughter was born so she is now 21 years and 2 months old and she is at university for another year.

[10] In 1995, just prior to the parties returning to this country from the Far East, the parties bought a new home in West London which was their final matrimonial home. In 1996, the parties returned to this country, and in the same year the husband was made a full partner in the parent UK company.

[11] That remained the position until August 2004 when the parties separated and on 22nd December that year the wife presented her petition for divorce. On 17th June 2005 a decree nisi was pronounced.

[12] On 3rd August 2005 the parties settled their financial issues at the FDR appointment. At that time the assets were put at £2.43m and they consisted of the matrimonial home, the husband's pension, the wife's own savings of about £287,000 and the husband's savings of a similar amount. The husband also had an unfunded annuity worth £177,000. At the time his income was said to be £475,000 per year net, and he was destined, he said, to retire at about 55. It is interesting to note the wife then produced a budget of her needs at £115,000 per annum.

[13] As a result of the negotiation the matrimonial home was transferred to the wife and a periodical payments order was made in her favour at the rate of £90,000 per annum. In addition the husband was ordered to pay periodical payments for the children at the rate of £15,000 per annum for their daughter and £5,000 per annum for the son. The husband paid the school fees.

[14] In round terms the wife received £1.37m in cash and equivalent assets. The husband received £1.06m of value but much of this was pensions and his unfunded annuity.

[15] The point has been made by the husband that at that time the wife received over 74% of the liquid assets in the case. But he received the balance and he retained his pension assets as well. There was no pension sharing order because of course the wife was retaining her whole life claim for periodical payments.

[16] Following that order the husband bought his present property, a house nearby the matrimonial home in West London. In the same year, 2005, the husband became the Chief Operation Officer of a major department of his employer and he continued in that role until June 2010.

[17] In May 2006 he married his present wife, i.e. some two years after the parties originally separated.

[18] On 20th July 2006, the wife issued an application for the variation of the periodical payments order. There was some dispute as to her motive for doing that. I do not think there is any doubt that she was provoked into making that application by the decision in the case of Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, which for the first time laid special emphasis on that aspect of a wife's claim which is described as "compensation". It was in that case for the first time that that concept was given full weight.

[19] As a result of that application by the wife, on 20th June 2007, the late Baron J varied the previous order for maintenance. It was a consensual variation achieved at an FDR and by that variation the periodical payments order was increased to £150,000 per annum for the wife. The sum was broken into two parts, the first consisted of a payment of £8,333 per month, almost exactly £100,000 per annum, and the balancing payment of £50,000 was to be paid each year on 16th December from balancing payments made to the husband on an annual basis by his partnership. The orders for the children were also increased; for their son to £16,000 per annum and for their daughter to £16,000 per annum.

[20] And it is that order for periodical payment for the wife which is the subject matter of this application to vary and terminate.

[21] On 26th June 2008, the husband and his current wife had their first daughter and so she is now 5½ years old. In 2011, as I have already indicated, his current wife was diagnosed with incurable cancer and it is that which has dominated much of the debate in this application. On 1st January 2012, in other words after diagnosis, the husband's second daughter was born so she is now of the tender age of just over 2.

[22] In July 2012, the husband's solicitors informed the wife of his intention to retire as a partner when he was 56 and he issued his application, as I indicated at the outset, on 5th November 2012.

[23] Those are the salient background facts to this matter. The forensic positions of the parties I have already indicated. As I say it is the husband's case that the order should now be terminated without further payment and it is the wife's case that she should be paid a very significant further lump sum if a termination is to take place.

[24] Let me mention some of the evidence which I have read and heard. The written evidence is contained in no less than five lever arch files. Many of the documents in the files relate to the previous applications. As I have already indicated, this is now the third time that these parties have had their financial position considered in full following their separation and divorce. Apart from the written documentation, I had detailed written submissions at the outset and I heard oral evidence from both parties and was furnished with very helpful, detailed asset schedules, tables of spending and the like.

[25] The present facts and figures are not significantly in dispute. Their precise significance and the parties' future plans and arrangements are the areas where agreement has not been possible. The main issue is as to the husband's future position both after retirement and after his wife's death and in this regard the extent to which he will be preoccupied with looking after his two young daughters and the extent to which he may take some form of employment even though he has retired from the demands of his present partnership.

The husband's evidence and case

[26] The husband struck me as manifestly honest and straightforward. He has been the Chief Operating Officer at of the tax practice at his employers since 2005, until June 2010. As he explained to me that is not really a client facing job but one in which he is involved in the management of teams within this enormous partnership. It is plain for all to see that he has acquired huge skills and this is attested to by his consistently high bonus rating, as Mr Chamberlayne emphasised. This high bonus rating is one of the factors which drives what is in effect his annual bonus. He explained to me why he was determined to retire next year. The reasons are a combination of factors linked to his age, the age of his contemporaries and of course his particular domestic circumstances, including his wife's illness and the needs of his two young daughters after their mother's death. It was, if I may say so, extremely poignant evidence and I accept it unhesitatingly.

[27] It was put to him in cross-examination that he had been consistently pessimistic when forecasting his future annual income. There is some force in that point when with the benefit of hindsight it is possible to compare his future predictions with their actual outturn. However, I find nothing sinister about that. It seemed to me to be nothing more than a natural tendency to disbelieve that the prospects for the firm will remain as rosy as they have been in the past. It is only with hindsight that it can be seen that his predictions tend to be low. He also explained why he had not yet retired despite his wife's appalling illness. This was bound up, he said, with the coping strategies which he had had to develop as a result of his wife's illness. Again I accept his evidence unhesitatingly, as I also do in relation to his future wish to be fully involved in the upbringing of his children after his wife's foreseeable death.

[28] He is very doubtful that he will in the future after retirement seek or obtain any other employment, although he does not rule it out entirely as a possibility. He predicts that he will have no, or almost no, earnings in the future. I am not so sure about that. There is no doubt, in my judgment, that he retains a very significant earning capacity, although it will be of dwindling value as he gets older and the longer he is out of the City. I think it is more than just a possibility that he will in due course, when all the ghastly events predicted for the next few years have passed, that he will, when the children are settled in school, in a more permanent way obtain some post or posts. However my prediction is that it will not be at anything like his current very high levels and I bear in mind that of course, once he is out of the swim of the City others will quickly move in to take his place. His skills are undoubtedly current and marketable now, but there are, I am quite sure, many others of his age and skills in the iconic square mile which he mainly inhabits. I accept that he has special demands on his time at the moment and they will get worse. I also bear in mind fully that he has very significant long term financial obligations to his two young daughters and to a far lesser extent of course to the children from his first marriage. It is idle to suggest that children cease to make any financial demands on their parents the moment their education has ceased.

The wife's evidence

[29] Turning to the wife and her evidence. She too struck me as a good and on the whole reliable witness. In oral evidence she did not add much to her written presentation except in relation to her radical change of stance about the desirability now of concluding things financially if that was possible. She was rightly criticised for dredging up old allegations of non-disclosure which in the event had never been proved. However, I acquit her to the extent that I think the inclusion of those allegations was probably as a result of advice she received. She feels very strongly that she is an ex-wife who sacrificed a serious professional career for the sake of the family and the children and she feels that that fact should continue to be recognised now as it has been in the past. To that end, in a rather superficial assessment of her claim, she feels she is entitled to continue to be supported indefinitely at the full current level of periodical payments.

Financial position of the husband and wife

[30] Both sides have produced schedules of assets. The financial picture is not complex. There does, on the face of it, appear to be a significant difference in the bottom line attributed to the parties by each side. The husband's counsel maintains that looked at overall the husband's capital assets amount to some £5,679,985 (including the value of the husband's pensions) and that the wife's assets amount to some £2,784,826.

[31] So far as the wife's present position is concerned, there is no dispute, it is made up of her interest in her home, the former matrimonial home of the parties with an agreed value of £1.8m, and that is almost entirely equity save for some sale costs. She also has savings of just over £1m.

[32] The wife contends that the husband's position is very much more ample than he maintains. In this regard, Mr Chamberlayne has produced a simplified schedule which values the husband's overall assets at some £8,913,924.

[33] There is no real difference between the parties on the underlying figures. The difference between the parties is as to the extent to which it is appropriate simply to add to the husband's position the payments he will receive in the coming years both from receipts he will receive from life assurance on the life (and subsequent death) of his wife, the value of the wife's share in the parties' French property and, particularly significantly, the ongoing value of the payments he will receive from his employers over the course of the next 10 years as part of his terms of retirement. By that route, as I say, the overall figure the wife's counsel calculates is nearer £9m.

[34] I think that both presentations are accurate as far as they go. The husband's presentation takes no account of these future receipts, but as Mr Marshall QC says they are yet to be received and would in any event be received years after the parties separated and so are not properly included, he says, in this particular calculation. For the wife, merely to include them on the schedule as at today's date as if they were money already available to the husband is a little simplistic.

[35] I shall approach this case on the basis that the husband has present assets worth in the region of £5.68m, but in the not too distant future and over the course of the next 10 years he will be entitled to receive further and in some respects significant payments.

[36] The other shortcoming in the wife's presentation is that she includes all the future receipts from the his employer's unfunded annuity without reference to the fact that income tax, of course, will be paid on those receipts as and when they are received.

[37] So far as the parties' income positions are concerned, the husband has been receiving very large income distributions over the course of the years since 2007 and as predicted in 2007. Mr Chamberlayne, as I have indicated, has pointed out that his predictions year on year tended to be low. But the full extent of them has resulted in each of the years from 2007 onwards in the husband being in receipt of net income of in excess of £650,000 per annum and in peculiarly good years significantly more than that. The prediction for 2013 is that he will receive a net income of some £800,000 or a little more.

[38] In the 10 years following 2015, when the husband retires, he will receive net of tax from his unfunded annuities about £237,000 per annum for the first four years, £167,000 in year five and then for the final four years £71,708. It is those figures when aggregated that drive Mr Chamberlayne to include the figure of £2,352,000 as the gross value of these annuity payments to the husband going forward.

[39] So far as the wife's income position is concerned, she is earning a very small amount, which I shall ignore, as a counsellor.

[40] I have already dealt with the possibility that the husband will indeed obtain some employment at a far lesser rate at a somewhat unpredictable time in the future. However, although it is a distinct possibility, I do not regard it as a probability.

[41] So that is the background to this application and the financial position as it has developed over the years and is now available to the parties.

[42] So far as the parties' submissions are concerned, the husband maintains that the time has come when his obligations to his wife should be recognised as having been fulfilled, or at least as having been fulfilled by the time of his retirement. He maintains that his wife has been properly and fully rewarded by the previous orders which expected the wife to save and indeed that is precisely what she has done. Accordingly, says the husband, she should now redeploy all the capital which she has amassed and, by moving house release about £700,000, which should be used as part of her long term income fund amortised on the conventional Duxbury basis. She can rehouse, he says for less than £1m.

[43] His case is summarised in the very last paragraphs of his statement produced for this application. At paragraph 107 he says this:

"I believe that it would be unfair to expect me to continue to pay maintenance to my former wife post June 2015 in circumstances where:-

a. I wish to retire given my age, my wife's ill health and the expected retirement arrangements at my work;

b. My capital and pension (including my annuities) were taken into account in the original proceedings where my former wife received an unequal division of the assets in her favour despite also receiving ongoing maintenance; and

c. My former wife is significantly over-housed and should be expected to downsize and release capital to help meet her income needs;

d. My former wife has accrued substantial savings out of income I have provided to her and which where intended to be and should be used to meet her needs.

I therefore respectfully invite the court to make an order that my maintenance obligation to my former wife ends in June 2015 or in alternative upon my retirement from work and that there is a clean break between us."

[44] The husband also emphasises, as I have said that, going forward because of his particular obligations to his very young children, he has far greater needs, financially, than his former wife.

[45] The wife's case is now put in this way. She submits that all the money that has been earned was earned, as it were, by both of them. It was because of her sacrifice in giving up her work that the husband was enabled to generate these very significant capital assets. Accordingly she should not, she says, be put under any financial pressure particularly as the husband still has an earning capacity. On this basis she invites the court to capitalise any award on the basis of her existing £150,000 per annum. Her original "compensation" claim she maintains should be fully recognised as the upward variation in 2007 was particularly made to reflect the sacrifices that she had made. She says she forfeited her substantial earning capacity for the family and thereby made a significant contribution which should be recognised under this heading of "compensation". She emphasises that as a result of the husband's very high earnings he has been able to save at a very great rate year on year, and so she should be allowed to retain her savings and they should not be factored at all into any calculation.

The legal framework

[46] The section which of course drives this application is section 31(7)(a) of the Amended Matrimonial Causes Act 1973. That reads and I quote:

"in the case of a periodical payments or secured payments order made on or after the grant of a decree of divorce... the court shall consider whether in all the circumstances and after having regard to any such change it would be appropriate to vary the order so that payments under the order are required to be made or secured only for such further period as will in the opinion of the court be sufficient (in the light of any proposed exercise by the court where the marriage has been dissolved of its powers under section (7)(b) below) to enable the party in whose favour the order was made to adjust without undue hardship to the termination of those payments."

Section (7)(b) of course is the section which gives the court power to order a further lump sum in favour of a party to the marriage to cushion the effects of any termination to avoid hardship.

[47] Mr Chamberlayne has drawn my attention especially to the case of McFarlane v McFarlane [2009] 2 FLR 1322 sometimes known as McFarlane Number 2, a decision of Charles J in a case which has some factual similarities to the present one and of course was the second hearing of the case which gave rise to the concept of "compensation". Mr Chamberlayne invites me to draw a direct comparison or parallel with that case but I decline to do so. The circumstances in that case were quite different (as they always are). Some of the figures may coincidentally be similar, but it seems to me to be no particular precedent, and only an illustration of how that meticulous judge decided to try and achieve fairness in the then circumstances of that case. Charles J was laying out a road map into the future to try and predict a situation years down the line when the wife might be in a position to have saved sufficiently to enable a termination under section 31. This case is very different. The husband's employment is imminently and predictably going to cease, as I find, and so there will be a dramatic reduction in his earnings and earning capacity.

[48] At the end of the day, as is always emphasised in these cases, the court is in the business of trying to achieve fairness between the parties in the light of the past, in the light of the present circumstances and in the light of the future facts in so far as they can be predicted. It is in applying proper weight to all those factors that the concept of fairness can be fathomed, in my judgment. I do not think such an exercise is improved by an attempt to descend into great precision. Such precise predictions are as likely to be wrong in their outworking as a more broad assessment. It is always important to realise that such a multifaceted assessment is inevitably shot through with uncertainty. Any attempt, in my judgment, to apply some kind of formulaic approach is spurious and merely an attempt to fix the unfixable or pin down the unpin-downable. Part of the process necessarily involves economic forecasting which is on any view the blackest of arts and as everyone knows notoriously unreliable and necessarily inaccurate.

[49] Having carefully considered all the various facts, figures and arguments, so ably advanced by counsel, these are the primary conclusions which I have thus far reached.

i) The wife in this case has been properly and fairly treated thus far by the previous orders. It is entirely wrong to try and back track and reargue or reopen the provision which was made in the then circumstances and where it has been received and accepted and there has been no appeal;

ii) It is highly desirable especially in the circumstances of this case for the financial dependency of the parties to be brought to an end if it can be done fairly. Achieving a clean break now is, in my judgment, a huge benefit to both the parties, not only financially but, as importantly, psychologically. I remind myself that this is no less than the third time that the parties have had their financial affairs examined by the court. If I had adopted the wife's initial approach or suggestion it would have necessitated a yet fourth outing in a year or two's time. The court has a duty to try and stop that waste of time and money, not only for the parties but also for the sake of the court, providing that can be done and achieved reasonably fairly;

iii) The parties have been apart now for 10 years and the husband, in particular, has a new family and is quite understandably extremely keen to finalise and have certainty around his financial future. I bear in mind also that much of the wealth that has been generated has been generated since the parties' separation and the wife has been able to benefit via the high periodical payments order;

iv) The husband's retirement is around the corner and clearly now in prospect. He is sensible to want to know what his position is post retirement, particularly in his particular circumstances. It is never necessary to wait until a particular event occurs before seeking a reassessment either by agreement or by the court's intervention. It is perfectly possible, as here, for any termination to take effect on the happening of a particular event rather than a particular date.

v) The husband's present wife's appalling illness combined with having two young children make it even more desirable from a human and also a planning point of view to achieve a termination;

vi) I detect that there is still acrimony in this case even after this amount of time. I am told the parties still don't communicate at all. That is not good for either side and is especially not good for the husband's present family,

vii) In the end I am quite satisfied that it is both possible and right to terminate the order now and without causing undue hardship. If I look at both parties' economies, look back at the past but also prospectively and bear in mind that no actual termination will take place until actual retirement in 2015 or possibly later, a termination is achievable. The question is upon what terms precisely should that termination take place;

viii) This case does retain a tangible, obvious compensation element which deserves recognition one way or another even at this stage. It has been factored in up to now and there is no reason why it should now simply be ignored.

[50] Against those primary findings, I make the following calculations. First, there is no basis for simply adopting the current periodical payments order as the starting point. That order was based on the husband's very significant earnings and my assumption is that they will cease.

[51] A number of figures have been produced for what might be said to be the wife's budget or actual spending. Mr Oliver, junior counsel for the husband, has produced a master spreadsheet (schedule) setting out the wife's budgets in 2006 and 2013 and suggestions were also made in that master schedule about what reasonable reductions could be made. That schedule demonstrates that without any very draconian pruning, to adopt Mr Oliver's expression, the wife's budget could be expressed at a level of £70,000 per annum.

[52] Interestingly too, that figure is easily cross-checked because it has been possible to see at what rate the wife has been able to save out of the periodical payments order which she was awarded in 2007. The husband's calculations reveal that between 2007 and the current hearing the wife has been able to increase her savings from about £350,000 to about £1,050,000. In other words, over the seven year period, she has accumulated savings of about £700,000.

[53] Some of that increase (a small amount) can be attributed to inflationary factors and natural increase in funds, but the vast majority is straight saving from the periodical payments. By way therefore of a cross check it is possible to see that the wife has been living on figures very much lower than the ones which she has put forward in the past for her annual income needs and which range from £136,000 in 2005 through to £189,000 for 2013.

[54] I should say also that in applying that cross check I do not detect that the wife has been living particularly frugally, only sensibly and with an eye to the future. I suspect she has had a justifiable underlying concern that the good times, and whatever may be the theoretical possibilities, will not in reality continue for ever. She is a prudent financial planner and accordingly she has sensibly saved and now finds herself with savings in excess of £1m.

[55] Taking all those factors into account I calculate the wife's actual budget going forward at about £70,000. However, I shall add £10,000 per annum to that to ensure that it is generous to her.

[56] I ask myself only two subsidiary questions in relation to the provision of that annual income. First, to what extent should there be a "step down" in the future as she approaches normal retirement age for instance; and secondly to what extent should her present home and her other capital be seen as a source of income producing capital to fund her current expenditure in the future.

[57] The husband's position, as I have made clear, is that the wife should now be expected to move house to release capital which should form the basis of income producing capital on a fully amortised Duxbury basis.

[58] Generally speaking, such a submission is a reasonable one but in this case I do not propose to adopt it as fully as I might otherwise do. The reason for that is, as I have said, because the "compensation" element of this case I find calls for an approach which reflects that element.

[59] In my judgment, in this case (and I emphasise "in this case" because there can be no hard and fast rule) I think the compensation element is properly recognised in the way in which wife's current capital is factored into any assessment of her future position. By that method the court can recognise that she has more than just an entitlement, arising from the marriage, to have her reasonable needs met on a simple lifetime basis.

[60] Accordingly, I shall recognise it in four ways. First, I shall attribute only £500,000 of the equity in her home as a part of her long term income fund, and I shall only ascribe to it a reasonable annual return of 3.75% net per annum. In other words, I shall not assume she has recourse to the actual capital in the way that a Duxbury calculation does. Secondly, by the same logic, I shall take the whole of the £1m which she has saved as being available to her but also on the same annual basis of 3.75% and not on a fully amortised capital basis. 3.75% net, in my judgment, is a medium level return over a long period without necessarily factoring inflation into the calculation. Thirdly, I shall not factor in any step down at a later date. And fourthly, I shall ignore in the calculation any extra savings which she makes between now and when the husband actually retires. Accordingly, if she is able to save another £100,000 or thereabouts, that is a bonus to her. And I have already indicated the budget figure has been increased.

[61] In overall terms therefore, the wife has, or could have £1.5m of her own resources to provide an unearned income which on the basis of a strict 3.75% per annum net is £56,250. I shall round that down to £55,000

[62] To achieve the £80,000 per annum which I have calculated as her reasonable (generous) income requirement she is short by £25,000 per annum. At this point a simple Duxbury calculation is required to make up that gap, and on a Duxbury basis, £400,000 is require to provide to the wife the £25,000 per annum for the remainder of the wife's predicted life expectancy.

[63] That is the figure which I shall require the husband to pay upon his retirement if he wishes to have a termination. The order therefore will be for the husband to pay the wife a lump sum of £400,000 on his retirement, but not before next year, or if it is postponed when it actually occurs. In net terms the wife will then have about £1.4m of free capital which on a simple Duxbury basis is itself £75,000 per annum but without recourse to her home.

[64] The husband on the other hand will have his home, his interest in the French property and not less than about £4m of cash and pensions on top, which figures take account of the sums which he will receive in the years to come either by his pension payments or on inheritance after the death of his wife.

[65] I have done the best I can to balance the parties' positions and recognise fully their past contributions to the family and in the wife's case the particular sacrifices she made.

[66] I should only finally say that I agree with recent pronouncements about the dangers inherent in attributing special weight to arguments about compensation. However, there remain a very small number of cases where it stares the court in the face and to ignore it and simply approach the case on the basis of the more simplistic "needs" arguments does not do full justice to a wife who has sacrificed the added security of generating her own substantial earning capacity, as this wife undoubtedly did. I doubt in the end she is any worse off financially because her investment in the family enabled the husband to generate these enormous returns which she has fully participated in. However, the building up of a secure earning capacity over a working life is a greater security to an individual spouse, whether husband or wife, than merely being dependent on the future income generating resources of one's former partner however successful.

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