Alireza v Radwan & Ors, Court of Appeal - Civil Division, October 12, 2017, [2017] EWCA Civ 1545,[2017] WLR(D) 653

Resolution Date:October 12, 2017
Issuing Organization:Civil Division
Actores:Alireza v Radwan & Ors
 
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Neutral Citation Number: [2017] EWCA Civ 1545

Case No: B6/2016/0414

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

FAMILY DIVISION

(Roberts J)

Case No: FD13D04178

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 12/10/2017

Before:

LADY JUSTICE GLOSTER

LORD JUSTICE LEWISON

and

LADY JUSTICE KING

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Between :

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Robert Peel QC and Amber Sheridan (instructed by Payne Hicks Beach) for the Appellant

Richard Todd QC and Max Lewis (instructed by Grosvenor Law) for the First Respondent

The Second to Fourth Respondents were not represented and did not appear

Hearing date: 19 July 2017

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Judgment Approved

LAD Y JUSTICE KING:

  1. This is an appeal against the order of Mrs Justice Roberts dated 4 August 2016 in respect of the Appellant's (``the wife'') application for financial remedies following the breakdown of her marriage with the First Respondent (``the husband'').

  2. The judge ordered, uncontroversially, payment by the husband to the wife of a lump sum of £2m by way of capitalised maintenance, payments of child maintenance and the children's on-going educational costs, together with a s um for a replacement motor vehicle.

  3. In addition, and the subject of this appeal, the judge ordered that ongoing provision for housing for the wife (and children during their minority) would be made by giving her a time- limited occupational interest in two flats in South Kensington (the larger of which was the parties' matrimonial home and principal residence, the smaller of which was used for the housing of domestic staff and guests). The wife's right to occupy the staff flat was to come to an end in three years' time and in respect of the principal residence upon either the wife's remarriage or the death of her father whichever be the sooner.

  4. The issues before the Court of Appeal are:

    i) whether the judge was right in law to regard the wife's future inheritance from her father as a resource that she was likely to have in the foreseeable future under Section 25(2)(a) Matrimonial Causes Act 1973 (``MCA 1973''); and

    ii) Whether the judge had been wrong in making an order granting the wife an occupational interest in the former matrimonial home rather than ordering the husband to pay a lump sum to the wife sufficient to enable her to buy a property of her own.

    Background

  5. The parties, both of whom are dual nationals of the United Kingdom and the Kingdom of Saudi Arabia, were married in London on 20 May 1999. The husband was then in his late 20s, working in international banking; the wife was 21 years old. The husband has an earning capacity of in excess of £350,000pa. The wife has not worked outside the home and it is agreed between the parties that she has no separate earning capacity of her own.

  6. Both families are, by any ordinary standards, extremely wealthy. The husband asserted that the scale of wealth of the wife's family is in a wholly different league from that of the husband.

  7. Following the marriage, the parties moved into a three bedroom flat in South Kensington: [an address], (``10 AHM''). The leasehold interest in the property had been purchased in October 1998 by the Second Respondent, (``Hosamco''). Hosamco is an offshore limited company which was incorporated in St Vincent and the Grenadines by the husband's father in May 1978 and which is now controlled by the Verité Trust, whose ultimate beneficiaries are the First, Third and Fourth Respondents (the husband, his mother and his sister respectively). Hosamco provided a vehicle through which a number of UK and international property acquisitions were channelled.

  8. The husband's father died intestate on 24 November 1991, although in 1989 he had set out his testamentary intentions in a formal letter of wishes.

  9. Following the death of his father, under Sharia law the husband was entitled to 58.33% of his father's estate. The husband however, in accordance with his father's wishes, agreed to forego his entitleme nt and instead the family arranged its affairs on the basis of the joint or collective ownership of all the family property (``the family arrangement''), continuing to use Hosamco as an acquisition vehicle. The Second, Third and Fourth Respondents were added as parties to the litigation in order to permit the resolution of a dispute between the husband and the wife as to the extent of the husband's beneficial ownership of, amongst other things, the South Kensington properties and as to whether it was open to the court to make a property adjustment order under s.24(1)(c) MCA 1973 (variation of an ante- nuptial or post- nuptial settlement).

  10. On 15 July 2000, approximately a year after the parties moved into 10AHM, their eldest son, Y, was born. His younger brother, A, was born on 19 December 2002. Y has significant learning disabilities and it is unclear to what extent he will be able to lead an independent life in adulthood. In the summer of 2004 the parties moved to New York in order to secure for Y what they considered to be the best treatment available for him. The family returned to live in London at 10AHM in the summer of 2006 and in January 2008, Hosamco bought an additional, slightly smaller property (``10A'') in the same building as 10AHM, for the use of the husband and wife's domestic staff (and in particular their nanny) and guests.

  11. Tensions appeared in the parties' marriage in 2008, and for a number of months, the wife moved out of 10AHM and stayed with the children in her parents' London home. The family subsequently moved to Jeddah, Saudi Arabia in the summer of 2009, where the husband and wife became reconciled. On 7 August 2011, the youngest child, a son, T, was born. On 29 August 2012 the wife returned to this country with the children and took up residence at 10AHM.

    Events leading up to the financial remedy proceedings

  12. On 29 August 2013 the wife issued a divorce petition and a Form A, seeking financial remedies upon divorce. The marriage was dissolved upon the decree absolute being granted in July 2014.

  13. In November 2013, agreement was reached between the parties in relation to interim maintenance whereby the husband would meet the wife's household outgoings, the children's school fees, and other expenses together with maintenance of £8,000 per month. The agreement was subsequently incorporated into an order by DJ Hess on 7 March 2014. Since the making of the order the wife has been obliged to apply, on four separate occasions, for the enforcement of arrears of maintenance by way of judgment summons.

  14. Shortly before the case came before Roberts J for trial, the parties each produced an asset schedule. It was not in dispute that the wife had no assets of her own. She put the husband's assets, held by him absolutely or beneficially, at slightly under £17.4 million. The husband for his part said that his assets amounted to only a little over £1.75 million, less his own liabilities (in the form of loans to be repaid to his mother and his brother-in- law) and the sum the wife said that she owed to her father in respect of her legal costs (a figure of in excess of £1m).

    The hearing before Roberts J

  15. At the commencement of the final hearing in mid-November 2015, the wife sought a lump sum of £7.5 million (a housing fund of £5.5 million and an income fund of £2 million), or the outright transfer of the title to the Kensington properties in part satisfaction of that sum. Mr Peel QC on behalf of the wife accepted that largely due to her age (37 at the date of trial) the wife would not be entitled to a full Duxbury award on the basis of a lifetime entitlement to maintenance: instead she sought an amount to provide her with 14 years' income, which would last until T's majority. In his written opening Mr Peel said:

    ``Plainly W's income fund will be exhausted upon the children reaching the end of their minority. She will then have to fall back on her property for her remaining income needs for the rest of her life''.

    This, Mr Peel said in submissions in the appeal, had been the wife's case at first instance, namely that the ho use was to serve a dual purpose: a home whilst the children were minors and thereafter to provide a smaller house for herself with funds released from the sale of 10AHM (or its replacement) to provide a reduced income for the wife thereafter.

  16. The wife also sought £1.2 million for her costs, £25,000 for a new car and child maintenance of £15,000 per year per child.

  17. The Husband's open position at the beginning of the trial was that he would offer £2.5 million as a cash settlement, with the wife and the children to remain in sole occupation of 10AHM until their eldest son, Y, reached the age of 18. (That is to say three years' time at which time T, the youngest child, would be 6 years of age). The husband offered child maintenance at the rate of £12,000 per year each.

  18. It was not until the fourth day of the hearing that anything like the full picture in relation to the husband's `family arrangement' emerged following the cross examination of the husband and his mother. By the time Mr Todd QC, on behalf of the husband, made his closing submissions it was accepted by him that his share of assets inherited on the death of his father amounted to £8m and not £1.75m. In fact, as the judge subsequently held, the husband's beneficially owned assets were substantially more than £8m. The judge held that the husband's disclosure had been `woefully deficient in many respects'. This late discovery of substantial additional assets (most of which were liquid) led to a revised offer of settlement. The husband now proposed to meet the wife's income needs whilst the children were minors in full (i.e £2m in free capital), but this was on the basis that he would not be required to raise any further capital from his family. In relation...

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