Financial provision – Divorce – Matrimonial home – Mesher order not made – Husband’s failure to disclose, and disposal of assets – Husband’s abduction of child – Relevance of husband’s conduct – Whether departure from equality justified
[2002] 1 FLR 555
Family Division
Connell J
15 October 2001
The husband and wife, who had met and married in Sicily, separated after a 6-year marriage. They had one child, who was one year old at the time of separation. Shortly after decree absolute the husband abducted the child, now 4 years old. The child and mother were reunited in a matter of weeks, but the husband was subsequently convicted of the offence of child abduction, and sentenced to 18 months’ imprisonment.
In the ancillary relief proceedings the only asset within the jurisdiction was the matrimonial home, with a net value of £124,000. The husband, who had been occupying the home until his arrest, refused to co-operate with the sale of the property, so the sale documents had to be signed by the judge.
The other relevant asset was a building society account, which the husband had failed to disclose, and from which he had removed £37,000. The money had been sent to the husband’s mother in Sicily; the husband claimed that this was in repayment of a loan, but the district judge took the view that the sum was a material asset and that there was no loan to take priority over the wife and child’s housing needs.
The district judge found that the wife, currently on state benefits but hoping to return to hairdressing, would never have a high income. The husband’s evidence that he had no income and no earning capacity was not accepted. The district judge ordered that the whole of the equity in the matrimonial home be transferred to the wife.
The husband appealed, arguing that the district judge ought to have given the husband some part of the equity, either immediately, or on a deferred basis by means of a Mesher order.
Held – dismissing the appeal – the award to the wife of the entire net value of the matrimonial home was justified by the need to house the child of the marriage to a reasonable standard.
A Mesher order was not appropriate, taking into account not only the contributions of the parties, particularly the wife’s ongoing contribution to the care of the child, but also the parties’ conduct. The wife was entitled to rely on various aspects of the husband’s conduct, including: his litigation conduct in not disclosing the removal of moneys from the jurisdiction; his actual conduct in preventing the court from having any meaningful say in the disposition of those moneys; the reality that the burden of maintaining the child was likely to rest with the mother alone; and the husband’s abduction of the child.
The husband’s conduct was particularly relevant when considering the court’s duty to give first consideration to the welfare of the child. Although it was appropriate for the court to look at the question of equality, and to depart from equality only if there was good reason for doing so, the court’s overriding duty was to reach a solution which, in all the circumstances, was fair.
Applying the s 25 criteria to the facts, the conduct and contributions of the parties, together with the desirability of a clean break order, provided good reasons for departing from equality.
Statutory provisions considered
Matrimonial Causes Act 1973, ss 25, 37
Hague Convention on the Civil Aspects of International Child Abduction 1980
