Divorce case highlights complexity of dealing with maintenance and assets split

By
Lenore Rice

A recent financial remedy application that came before the Family Court highlights the difficulties of separating out complex assets following divorce, identifying the difference between needs and standard of living, and dealing with an uncooperative spouse who fails to engage with the process.

In AF v SF [2019] the couple were in a cohabiting relationship since 2002 and were married two years later, with two children aged 12 and 14 by the time of their separation. While there was a large sum of wealth on the husband’s side it was almost entirely held in a family dynastic trust which included a valuable property portfolio. The husband and the other family members were life tenants of the trust and held largely similar shares, with the husband in this case having a share valued at approximately £106million, with an estimated net income over the next 5 years to be around £1.185 million a year.

Other substantial assets were the matrimonial home valued at £2.63million and a holiday home in South America which the husband did not facilitate to be valued, but was estimated by the wife to be worth approximately £772,500.

The wife had a freezing order granted in respect of some of the husband’s funds, though was not requesting any money from the Trust fund, but did ask the Court for a “sensible, fair and reliable way of having an income fund made available to her which doesn't involve a lot of future litigation".

The Court considered the matter of the Marital Standard of Living together with the wife’s needs, and said that the previous standard of living is not determinative, and that the court should also consider if it was excessive. It rejected the wife’s claim that she needed a second home in London on the basis that the couple had not had a second home there for the majority of the marriage. The Court also accepted that most of the assets emanated from the husband’s family estate and would not form part of the matrimonial pot, and as such the sharing principle would not be applied. It determined that any settlement the wife would receive would far outweigh any amount that she would have earned had she not given up on her good career in order to raise their children.

The court did however make a total award of £7million made up of a lump sum of £4.25million with the remainder being paid in annual instalments of £500,000 for 5 years. It did so to reflect the standard of living and the length of the marriage, and the fact that she was now the principal carer of the children and resident parent.

On a side note on this case, the husband failed to engage in the proceedings to the extent that he was deemed to lack capacity to conduct litigation and an Official Solicitor was appointed. The Court may in such circumstances take the view that the husband is not making full and frank disclosure and that adverse inferences could be drawn, but in this case it determined that the assets were as outlined by the wife and no adverse inference was drawn.

The case highlights just a number of the complexities that face the court and couples going through a separation when it comes to agreeing financial maintenance and division of assets. It is important to note that enlisting the expertise of a divorce solicitor is not the reserve of couples who are having a bitter or contested divorce, and that it is always prudent to get expert legal advice from a family law solicitor when dealing with complex finances, even if the separation is amicable.

If you require legal advice from a divorce solicitor in Northern Ireland contact Wilson Nesbitt in Belfast or Bangor by clicking here.