Case No. EWFC-75

that the husband even owns them. In her statement that was filed very shortly before the hearing she made even more unrealistic proposals [G48 – her claims were as now but also included ‘a lump sum of half the equity available from ‘52 High St and 4 Morland’].15.The husband’s open offer only arrived in closing speeches (he had made no open offer at all before that in the 3 ½ years of this litigation to which I have been referred). When his offer did come (in closing speeches) it had obviously been guided by Mr Miah and so, unsurprisingly, it was, of course (if I may say), a clever offer. The husband’s primary case is that the wife should move back to 36 Beaconsfield Rd with 37 St Michael’s Avenue being sold to pay off debts. Realising the limitations of that primary position due to its impact on the children, Mr Miah postulated that 36 Beaconsfield might be sold and the proceeds divided so that the wife’s cost liabilities might be met and the husband has some capital released to him at this stage. Beyond that, Mr Miah further postulated, in the unusual circumstances of this case and given the wide age range of the children, the court might make a Mesher - type order in relation to 37 St Michael’s Avenue (with only the children’s ages or further order being the trigger points for sale since the wife has already remarried). A division of 80/20% (my example, not Mr Miah’s) in the wife’s favour, would leave her with £400,000 on sale at present values and the husband with £100,000 at a time when the children were all adult. Further, if the wife and her husband wished to buy out the husband’s share, they would be able to do so, if the order were to be drafted in the correct terms (this would require care due to potential CGT implications for the husband that might arise from a charge based order). As Mr Miah submitted, a simple solution that the wife has 37 St Michaels Avenue and the husband has Beaconsfield Rd would be unworkable now, in any event, due to costs and CGT on Beaconsfield Rd.16.The outcome of this judgment – To make the job of reading this long judgment less burdensome, I wish to state now that I have had no difficulty at all in rejecting the trust claims. I have had no difficulty in dealing with the alleged debts. However, I have agonised over the division of the remaining £730,000 worth of assets because of the mess that this case has got itself into. My conclusion is that the only fair solution that is left is to direct the transfer of St Michael’s Avenue to the wife, subject to the mortgage and on the Mesher basis set out above (80/20 in favour of the wife). I also direct the sale of Beaconsfield Rd. I have spent a great deal of time deciding upon the division of the net sale proceeds of that property. The figures relating to the sale proceeds of Beaconsfield Rd work out in this way:17.For reasons that I expand in this judgment and applying my discretion as to what, overall is fair, I have decided to impose the first of those divisions as the outcome of this case. Roughly, a 70/30 split, albeit that the husband will have to wait for his share of the former matrimonial home. 18.The parties will need to obtain advice about how much of a CGT reserve should be set aside from the sale proceeds of Beaconsfield Rd; the 50/50 division should be effected in the first instance after that reserve has been set aside. If there should be a surplus within the reserve after payment of CGT, the surplus should be divided in the same 50/50 proportions. I have not been given any information about the tenancy by which tenants occupy the property and so I will have to assume that vacant possession could be obtained. The contrary was not suggested by anyone when I raised the issue and everyone relied on the vacant possession valuation.19.The parties - This is the table that I have produced of the parties: 20.The trust and business claims. Counsel for the wife said as follows in his opening:It is W’s case that H in respect to the properties and business mentioned at (a) to (c) below (i) has beneficial interest and/or other equitable entitlement (ii) has shares or equitable interests and/or financial or proprietary entitlement from companies and business (iii) and will continue to have financial benefits from such properties, company business now and in the future. The properties and business are identified as follows:(a) 50-52 High Street, Burnham -on-sea TA8 1PD where the business known as The New Chandni Restaurant is operated from (commercial property)(b) Bluebird Restaurant Limited trading as The New Chandni Restaurant, situated at 50-52 High Street, Burnham -on-sea TA8 1PD.(c) 4 Moreland Road, Highbridge, TA9 3ET (residential property)21.Although that is how the wife’s case was put, in fact she does not pursue a suggestion that the husband has a beneficial entitlement in the company, Bluebird Restaurant Ltd, or the shares in it; after a day of submissions on 12th April 2022 that was the wife’s conceded position in relation to the company. She asserts that the husband controls the business and its finances. Further, she asserts that the husband has undisclosed financial benefits from the company, part of which were concealed behind a sham loan agreement with the Fourth Respondent, Mr Haque. 22.Therefore, the disputed trust claims (and size of the interests that W alleges H to have) relate to 50-52 High Street, Burnham (50%) and 4 Morland Rd, where R7 and R8 live (100%) – see C10 for the wife’s statement to that effect. The Respondents involved in each claim, including the husband, deny the wife’s assertions and contend that the husband has no beneficial or financial interest in any of them. 23.In his skeleton argument for this hearing, counsel for the husband has submitted: •‘H denies the assertions which are tantamount to allegations involving a large number of parties engaging in a wide scale conspiracy even prior to separation all colluding to defeat the W’s financial remedy claim and on properties which even historically H had no interest in. The W did not seek to join the Respondents (R’s’) as intervenors within those existing proceedings to determine the extent of any beneficial interest in property but chose to issue proceedings separately under the TOLATA with accompanying Particulars of Claim (‘PoC’) [A3-A6]…The PoC signed by retained counsel for the W does not set out the legal basis for the claims. It is not known how the claimed percentages [in relation to the two properties and R3] are calculated.’•‘The burden of proof is on the W to prove her case and H (as with all the R’s) has been forced to provide fishing and disproportionately intrusive disclosure far over and above that required and relied on by the W through extensive and costly specific disclosure enquiries brought by the W. H, as with the co R’s, has made full and frank disclosure and the W does not suggest that the specific disclosure she has obtained has not been complied with. H provided a detailed statement in response to the allegations [D1-D13] as have the rest of the R’s and witnesses [D20-D29 and G1-G36 and G50-G73]. There is a general duty on the W to prove her case and she has failed to discharge her duty. It would be wrong to draw inferences adverse to the H upon inadequate facts unsupported and with insufficient proof of the standard necessary to meet the seriousness of the allegations made against him and the rest of the R’s.’24.In this judgment I will show why, in relation to the trust claims, I say:i)The procedure that has been followed in this case is misguided. In 2018, H issued his Form A in the divorce proceedings. In August 2019 the wife issued the trust proceedings by way of separate claim form. Thereafter the trust proceedings were treated as the dominant proceedings and pleadings and statements were filed within them. The case was transferred to the Business and Property Court and then to the County Court. Only in November 2021 was it transferred to the Family Court. It was then that I became involved.ii)It is as a result of the procedure that has been adopted and the entrenched conflict between these parties that disproportionate costs have been incurred. Further, basic procedural requirements of financial remedy proceedings have been ignored. The wife has never filed a Form A. As I have described, the husband did not make an open offer at all until I required one. The wife’s open offer was absurd. There is no statement from the wife’s current husband and there was no evidence about his circumstances at all until I required him to attend to give oral evidence. There is no documentation at all in support of the evidence that he gave. No mention at all has been made during this hearing about alternative accommodation for either party, even though evidence has been filed about it [J1-63]. The Forms E of neither party gave full or frank disclosure. The case has been in and out of court due to procedural infighting. In relation to the trust claims the wife has never set out in any meaningful sense how it is that she seeks to justify the claims or the shares that she seeks in the two relevant properties (High St and 4 Morland Rd); for instance, the case of Laskar v Laskar [2008] EWCA Civ 347 (to which I refer later) has simply been ignored by her. iii)The trust claims are hopeless. It is simply not necessary to descend into any form of lengthy analysis of the equitable principles of resulting and constructive trusts. In relation to both properties in issue (50-52 High St and 4 Morland Rd) there is no evidence that the husband made any direct financial contribution to the purchase of either property or to mortgage payments. There is no evidence of a common intention (express, implied or imputed) that he would have a share in them – quite the reverse, since it was the very clear intention that the legal title holders would be the beneficial owners of the two properties. From the start, the trust claims as presented bore the evidential difficulty of the wife (an outsider) seeking to establish that the holders of the legal title and the husband shared beneficial interests in properties that both title holders and the husband denied; that evidential reality has not been reflected in anything that I have heard on her behalf. 25.The marital background is that the husband and wife were married on 5th August 1997. They have five children. E (female) is now a young adult; she works and pays the wife a small amount each month). G (male) is now an adult also; he is autistic, non-verbal and has other disabilities. The wife says (and I accept) that G ‘needs round the clock supervision and care which I provide without any respite’ [G45]. B (m) is in his mid-teens; he gave evidence which included that he intends to take up an apprenticeship relating to motor cars. C (f) is younger than B but is also in her mid-teens. D (f) is the youngest child and will not be a teenager for some years. 26.All five children live with the wife. The husband suggests that the two eldest children ‘are no longer dependent’ [G41]. He did not acknowledge the very considerable contribution that the wife is making, and will continue to make, in caring for G.27.The husband and wife do not agree as to the date of separation; the wife says that it occurred on 3rd July 2017, the husband says it was in December 2016. The husband says in his Form E [F1] that he and the wife had been sleeping apart for 2-3 years before separation. The precise date of separation is not important, and it is not possible to state it. The separation was defined by a gradual process of the husband spending increasing amounts of time sleeping at 50-52 High St. The decree nisi was made on 6th June 2017 and it became absolute on 13th August 2018. The marriage lasted for between 19 and 20 years from the date of the ceremony until the date of separation. It was therefore a long marriage. The responsibilities that arise from it will be long-term. 28.Initially, at the start of the marriage, the parties lived in rented accommodation in Weston-super-Mare but then moved to a rented property at 110 Churchill Avenue, Clevedon. In 2004 they moved to 36 Beaconsfield Road, Clevedon; it was a council house but was bought in the sole name of the wife in November 2014 and is rented out to third parties. On 9th April 2014 the husband bought 37 St Michaels Avenue, Clevedon in his sole name; the wife, her current husband and the children live there.29.The procedural history of this case extends over 3 ½ years. The husband issued a Form A application in 2018. His Form E was filed on 26th November 2018 with the wife’s being filed on 21st December 2018. On 2nd January 2019 there was a first appointment and on 22nd March 2019 the wife was given permission to join third parties. An FDR was listed before a District Judge on 11th July 2019; he recorded that the hearing could not go ahead due to the ‘wife’s conduct in the litigation’ and so he gave directions. On 28th August 2019 the wife issued her claim form [1] in which she stated that ‘the Claimant brings an action in family proceedings to claim a share of the assets held by the defendants on trust and/or tenants in common and/or joint tenancy of the properties and businesses mentioned in the attached Particulars of Claims…The Claimant seeks a declaration of the nature of the first defendant’s interest in the properties and businesses…under TLATA 1996.’ 30.On 25th September 2019, a defence to the civil proceedings was filed by the husband [18]; he said that he has ‘never at any time had any interest in the property or business situate at 50-52 High Street’ and denied each of the claims. On 26th September 2019 R2 filed her defence [25]; she asserted her ownership of 50-52 High Street and stated: ‘I have never had a business or business interest with Mr Mohammed Alim Uddin who I believe works as an employee at Chandni Restaurant at 50-52 High St.’ On 30th September 2019, R4 (Mr Haque) filed his defence [28] in which he stated: ‘I took the lease from Mrs Rupia Begum on the 1st March 2018 and have been trading as Bluebird Restaurant Ltd since that date. Mr Alim Uddin is an employee of mine who is hard working and an honest person. I pay my rent directly to Mrs Rupia Begum and Mr Uddin has no involvement in this business.’31.R7 filed her defence on the same day, also [33] in which she stated: ‘the land purchase mentioned in Mrs Uddin’s statement was bought jointly by my husband and Mr Uddin but was registered under my name and Mr Uddin, my husband’s uncle….In response to the purchase of 4 Morland Rd, I purchased the property with my brother in law Shakir Jumon on April 22nd 2016 and the mortgage payments are made from our joint mortgage account. Mr Uddin has no involvement or financial interest in this property. I am a single mother of two, who is trying to keep her family happy and content…I have no involvement in the affairs of Mr Uddin or his wife.’ Also on the same day, R8 (Mr Shakir Jumon) filed his defence [35] in which he denied the claims that relate to him and stated that he and his sister-in-law bought 4 Morland Rd – ‘jointly as she and I were unable to purchase any property outright on our own.’32.10th January 2020, a Judge ‘gave permission’ to W to bring a claim under TLATA 1996 and joined R2-R8 as intervenors in the financial remedy proceedings [45]. On 19th March 2020, a judge transferred the proceedings to the Business and Property Court in Bristol [48]. In my opinion and with respect, that is where the procedure went wrong. On 15th September 2020, another Judge directed that the case should remain in the County Court [50]. The case then came before another Judge in the County Court on 18th January 2021 and 7th May 2021, when directions were given. On 24th August 2021, a Judge made further orders for discovery and in relation to costs budgets [64]; he recorded that W’s costs budget was approved at £70,368 plus VAT and that the ‘defendants costs budgets…are approved as stated.’ On 12th November 2021, another Judge transferred the case to the Family Court, where it always belonged, and vacated the six day trial that had been listed to start before him on 4th January 2022 [68]. I then gave directions on 26th November 2021 [71] and, again, on 18th January 2022. On 12th April 2022, I heard the pre-trial review.33.Remarriage – Wife - Counsel for the husband advanced a submission before the commencement of this hearing seeking to suggest that the wife’s financial remedy claims were barred because of her remarriage. The submission went as follows: ‘The W has not applied for a financial remedy order against H prior to her remarriage and therefore financial obligations terminate. The court cannot order a transfer of property to a party who has remarried and who had not made an application for such an order prior to that remarriage. They must make their own application (which may be a cross-application) before they remarry if they wish to seek an order in their favour.’ Reference was made to section 28(3) of The Matrimonial causes Act 1973.34.That argument under section 28(3) had not been raised at the hearing before me on 12th April. An opportunity to raise the argument had been given by the order of DDJ Lucy Reed on 6th February 2019 [B18] but had not been taken up.35.On receipt of the argument I called for production of the wife’s petition. It was emailed to me by the wife’s solicitor. It is dated 31st March 2017. It contains a full prayer for all forms of financial orders (each box is ticked). By reason of Rule 9.4 of The Family Procedure Rules 2010 and Jackson v Jackson [1973] 2 All ER 395 that prayer is sufficient to avoid the provisions of section 28(3) of the 1973 Act being a bar to the financial remedy claims. The wife should have issued a Form A, signalling her intention to continue with her claims but there is no bar against them and the procedure has continued over the past three years in the clear knowledge and understanding that she is pursuing her capital claims under that Act. 36.Remarriage – Husband - In relation to the allegation that the husband is married to R7, there are emphatic denials by both of them. 37.The wife says at C5: ‘In 2008 [the husband] informed me that he was going to Bangladesh under the pretence that he will be buying land and building a house there. In fact, the purpose of the trip was to marry the R7. [The husband] and R7 married each other around early 2009 in Bangladesh notwithstanding that [the husband] was still married to me. Although there is no marriage certificate to evidence this and [the husband] has declared on two occasions that he is not married to R7, I have provided Bangladeshi land registration documents. The documents confirm that R7 is the wife of [the husband]. I can confirm that [the husband] introduced his children with R7 by bringing them to my house on several occasions and [the husband] wanted me to accept our marriage as a polygamous marriage with Sume Begum also being his wife at the same time which I refused…[R7, Ahmed Mosthaque and the husband] have deceived the UK immigration authority and now they are seeking to deceive the court. …R7 came to the UK under a sham marriage then divorced from the sham marriage. She knows very well the reasons for the divorce was to cut her official ties with Ahmed Mosthaque so that she can live with H which they continue to do …I can confirm that I confronted Ahmed Mosthaque after I found out from gossip in the Bangladeshi community that H paid him to get R7 to the UK and he admitted to me that his loyalty was with H, as H had paid him a substantial amount of money. Ahmed Mosthaque then used the money he received from H to set up a restaurant in the Midlands.’38.The land registration documents that the wife produced are at A9. The husband is stated in the documents to be R7’s husband on the fourth line of the document at A10. At A35 there is another document relating to the property in Bangladesh; it is dated 26th April 2017 and refers to ‘Shumi Begum…husband Alim Uddin.’39.At G60 there is what is said to be a ‘deed of amendment’ in Bengali which corrects the document at A9. There is a very poor translation of the document at G57. It states, amongst other things: ‘whereas, there's cause cloud in your title, you want to execute a amendment deed for correction of said cloud, on your request I am being agreed for your future enjoyment and possession to execute this deed of amendment do hereby admit and undertake you the recipient of no. 2’s husband’s name has been wrongly written as Alim Uddin , which is really, it's necessary to write your husband name. Really said Ahlim Uddin is not husband of recipient No. 2 Mrs Sumi Begum.’ The wife’s counsel emailed me after the hearing had ended to say that this document was disclosed for the first time on 8th June 2022 to the Applicant’s solicitors as an appendix to R7’s statement notwithstanding the fact that it is dated 11th March 2020 and the Husband said that he had no knowledge of it until this hearing. That is typical of this case.40.The husband’s account about this land in Bangladesh is given in his statement at D9. He says: ‘The land deed was dated 20th May 2010. I was not in Bangladesh on that date and had someone else to act as my power of attorney. The land deed is in fact dealing with the purchase of a piece of land by myself and Sume Begum from Moniruzzaman Chowdury; It is not land transferred to her by way of a dowry. I do not know why I was referred to as her husband. …I sold my half share of the land to Taslima Akther on 5th January 2015 because the [wife] and I needed to obtain funds. My share of the land was sold to enable me to buy a car for the claimant and to pay for items to equip the current matrimonial home , 37 St Michaels Ave …If the land was transferred to Sume Begum by way of dowry, I would not have been in a position to sell the land as I did on 5th January 2015. I produce marked MAU 6 the land document relating to the sale as well as a translation…The events leading up to the purchase of this land were as follows. I had purchased a piece of land in Bangladesh in my sole name, however the claimant did not like the piece of land and it was sold in 2010 to buy another piece of land straight away. The replacement piece of land was more than the sale price and the land was therefore purchased in the joint names of myself and Sume Begum on 20th May 2010.’41.At G50 there is a statement from Sume Begum (R7) who says that she is not the wife of the husband, denies that the husband is the father of her children and gives a similar account in relation to the land in Bangladesh as the husband. 42.The issues about whether the husband and the seventh Respondent are married overlap with the issues relating to whether the husband is the father of R7’s two children and whether he is a part owner of 4 Morland Rd. During the course of this hearing I required the husband to give evidence that was sworn by him on the Koran to be true that: i) he has never been married to R7; ii) he is not the father of X; iii) he is not the father of Y; iv) he has never been in a sexual relationship with R7 and v) he has not been into a bedroom at 4 Morland Rd with R7. When I asked him to give that evidence on the Koran, he was extremely reluctant to do so, suggested that he was not a man of strong faith and was plainly very anxious. Although what is sometimes condensed into the description of ‘demeanour in the witness box’ is a very poor basis for making an assessment of truthfulness, the way a person converses is part of the everyday assessment that everyone makes when analysing what another person says. It is also part of the advice given to juries that, although they may take notes, they may find it particularly helpful to watch the witnesses and listen carefully to what they are saying. The husband did eventually give the evidence that I required of him on the Koran. R7 gave her evidence on the Koran and gave the same confirmation on those five points.43.On two occasions I raised during the hearing whether there was any application for DNA tests to be carried out in relation to the paternity of X and Y. The second time I raised this was just before Sume Begum gave evidence. I asked Mr Meethan, her counsel, whether she understood that there might be an application for such tests to be carried out. Mr Meethan said that she did understand this and would not argue against DNA tests being obtained, if the court required them. At no point has the wife applied for such tests to be carried out or argued that they should be, even though the issue was raised. My own involvement in this issue first arose when I heard the PTR and strike out application on 12th April 2022. I ordered that Sume Begum should file further evidence, stating who the father of both children was and giving such further particulars as she could. She did so (see section G of the bundle for the three statements that she has filed since 12th April 2022).44.I heard a large amount of evidence on this issue and will analyse it further, later in this judgment. In particular, I heard and read the evidence of the wife and the parties’ son, B and I read the statements of the wife’s other witnesses (all of which I refer to below). Because structuring this judgment in a multi-issue case has not easy, I have decided that I should state my conclusions on this issue of the alleged marriage between the husband and Sume Begum at this stage so a reader can have some idea of where that issue is going. 45.As a matter of law, the wife bears the burden of proof on the issues that she raised as to whether the husband has been married to Sume Begum and also as to whether the husband is the father of the two children. It has not been argued by the wife that the legal burden was transferred to the husband to show that the Bangladeshi documents of title, which record the husband as being married to Ms Begum, were wrong; further, on documentation alone, there is the purported amendment that Ms Begum has produced so recently. All parties have argued this case on the basis that the wife bears the burden of proof on these points. 46.In deciding whether the wife has fulfilled that burden, I have to apply the civil standard of proof. Although there were suggestions at times from counsel for the Respondents that there was some form of heightened civil standard that should be applied due the seriousness of the allegation, I hold, as matter of law, that I must apply the civil standard of proof, the balance of probabilities, without any form of enhancement or qualification – see, for instance, the speech of Lord Hoffman in Re B (Children) [2008] UKHL 35; [2008] 2 FLR 141 in which he said: ‘the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not… There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not.’ When applying the civil standard of proof it is important not to compartmentalise the evidence and to maintain an overview of the evidence as a whole. I have done that.47.Although I will examine the evidence on these issues much more, later in this judgment, I wish to record now that I do not consider that it has been proved to the civil standard of proof that the husband has been married to Sume Begum or that he is the father of her children. However, I do find that:i)The husband and Sume Begum have a strong and close association. He treats her as a part of his family. ii)The husband told me that, at the time that the piece of land in Bangladesh was bought, he had no other capital or property anywhere in the world. The very fact that he was prepared to invest his only capital into a piece of land that was jointly owned by Sume Begum, is one example of how close the connection is. There has not been an explanation as to why her name appeared on the documents of title to that land, rather than the name of Ahmed Mosthaque. I was told that the purchase of this land was funded by the husband and Mr Mosthaque only. The husband’s evidence is that the land did not form part of ‘a dowry’ for her. There is no suggestion that it was part of a dowry relating to her 2010 marriage to Mr Mosthaque. iii)The husband has treated X as if he were a member of the husband’s family. On the evidence of the husband and Sume Begum, X is the son of Ms Begum and Ahmed Mosthaque. Unlike Y, X is not said to be child of a sibling of the husband. I find that the husband does refer to X when speaking to the five children of this marriage by the Bengali word ‘bha’i’. I was told that the word ‘bha’i’ might mean cousin or brother. So, when speaking to B, the father has called X B’s bha’i. A point not pursued by the wife’s counsel in evidence is that X is not the cousin or brother of the five children, on the account given by the husband and Sume Begum. The blood relationship arises because Ahmed Mosthaque is the cousin of the husband’s father; I have constructed a genogram of my own to visualise this and it leaves X as only a very distant relative. More importantly than terminology, is the considerable amount of evidence that X is involved in family occasions and is integrated within the husband’s family network. For instance, he attends birthday parties and family meals.iv)The husband has slept at 4 Morland Rd. In particular, when he has needed somewhere to stay when B was with him (e.g. last summer when B was working at the restaurant) the husband and B stayed there.v)The two men that the husband and Ms Begum say are the fathers of the children are closely linked to the husband. Alom Uddin is his brother and Ahmed Mosthaque worked in the restaurant with him. Neither father sees either child often on the evidence that I have heard. 48.The fact that the husband and Ms Begum have not given a full and frank account of the close relationship between them or of the husband’s commitment to the two children has been an additional factor that I have considered very carefully when reaching my decision on the issue of whether they have been married and also when considering the allegations about the paternity of the two children. Both Ms Begum and the husband swore on the Koran to tell me the truth, the whole truth, and nothing but the truth. I have considered very carefully the Lucas direction in relation to lies (R v Lucas [1981] QB 720). I do not consider that they have given a full account of the closeness of their relationship. However, I do not consider that demonstrates that they were married or that he is the father of the children; it could just as well be explained on the basis that, in the context of this case, neither wished to admit to that closeness. 49.B and E have given evidence that they understood that X was their brother. I intend to direct that the wife may tell them that their father and Ms Sume Begum swore on the Koran that their father is not the father of X or Y. The wife may also tell the other children that the husband and Sume Begum gave that sworn evidence. If the husband, Ms Sume Begum or either of those children should ever assert that the husband is the father of the either child, I would expect their evidence in these proceedings to block that assertion. If the wife should seek a transcript of that part of the evidence of Ms Begum and the husband so that it could be referred to the police or any others involved if such an assertion were to be made, she should so apply. As I warned Ms Sume Begum, if she was not telling the truth, she would either be effectively disinheriting her children in relation to the father or risking investigation for an offence of perjury. 50.The wife’s resources and needs - In her recent statement at G46, she says she has the following income:51.In her Form E, dated 21st December 2018, she had said that her income was as follows [F119 and F120]:52.Thus, according to her documentation, her income has decreased quite considerably since her Form E was filed. The decrease was not explored at all during this hearing as there was such a focus on property matters. I did not hear any submissions based on budgetary factors. That was why I regarded it as important to have some understanding of the financial position of her husband. 53.The wife remarried on 28th November 2018 [G45]. Her Form E was sworn one month later (21st December 2018). It did not reveal that she had remarried. Paragraph 1.8 did not give the date of her remarriage. It stated that she was not living with a new partner; that was right because, at the time, he was still living in the USA. Paragraph 1.9 stated that she did not intend to live with a new partner within the next 6 months; that may also have been correct because she and her husband did not live together for two years. There is no mention of her remarriage elsewhere in the Form. In her oral evidence the wife told me that it was deliberate choice to omit the fact that she had remarried because her husband was not living with her at the time. That is unsatisfactory as she must well know. 54.It is plain, however, that the fact of her marriage was known to the husband by at least 6th February 2019; the remarriage is expressly referred to within the order of that date of DDJ Reed at B18. That being so, I do not understand why it was left to me to direct the attendance of the wife’s husband during this hearing. The only information that I have about him comes from what he said in oral evidence and the passage in the wife’s statement at G45 that Mr Miah, ‘only contributes on average £100 to £150 weekly towards the home.’55.The evidence that Mr Md Juniar Miah gave was unsatisfactory, given that he did not produce any documents to support anything that he said. I raised that there might have to be an application for an adjournment for him to provide better evidence but no one sought one. He said:i)He had been living and working in the USA as an American citizen. He lived in rented accommodation there and worked in a restaurant. He has leave to remain in this country for 2 ½ years.ii)He has $7,000 (about £5,700) in the USA and £6,000 in a bank in this country. He has no other capital assets and does not have any interest in any land or property. Thus, his total capital worth is about £11,700.iii)He has parents and siblings in Bangladesh whom he has been supporting by paying them about £400-450 a month. He has not been married before and does not have any children. iv)He lives at 37 St Michael’s Avenue with the wife and children. He has a strained relationship with B but his relationship with the other children is better. Following their marriage it was always his intention to live with the wife but he was unable to do so for two years (i.e. until February 2021) due to delays in the immigration process. v)He will be returning to work, for a company called Smart Systems, and will be earning about £385 pw. That is £1,668.33 p.m. He has no qualifications.vi)He has given the wife a total of about £11,000 to assist her to pay counsel’s fees.56.When Mr Md Miah is working and living at the house his primary financial obligation will be to that household. If he is earning £385 pw he will have to pay more than £100-150 pw into the home. I see no reason why his income should not be expected to cover at least more than the rent that the wife is currently getting from 36 Beaconsfield Rd – she gets £10,800 p.a. in rent and he will be earning £20,020 p.a.57. In her statement, the wife says that ‘my daughter E also contributes approximately £60 to £70 a week.’ That sum cannot be treated as doing more than contributing to the living expenses of E; it will not create any surplus for the wife. 58.Her counsel’s opening states: ‘it is clear that W is not going to be able to work and G and the other 3 children will be very much dependent on W for a long-time.’ I accept that the wife does not have an earning capacity and there is no likelihood of her being able to take steps to increase that capacity (I have considered the wording of s 25(2)(a) of the 1973 Act). The husband has not suggested that she has any capacity to earn. I accept that G will be dependent upon her for a long time; I do not have any medical evidence about him but, from what I have heard and read, it appears that he will be a lifelong dependent. I accept that C will be dependent on the wife for a few more years and that D will be dependent on her for much longer. I do not accept that B will be a long-term dependent although he may live at home for the immediate future. I very much doubt that B will go to live with his father, as his father suggested, in the light of the differences in their evidence at this court hearing and the divisions that it revealed.59.I am very surprised that this family has been able to have such access to means-tested state benefits for the period that it has. Means tested benefits were being claimed by this family when the husband and wife were living together. It appears that the husband filled out the documentation and the benefits were paid into an account in the wife’s name. How means-tested benefits were paid when the wife has the investment property and income of Beaconsfield Rd, has not been investigated at this hearing. 60.Overall, on the evidence that I have heard and with such limited budgetary evidence from the wife, I consider that the wife and the children would be able to fund their lives to a reasonable standard of living if they remain at St Michael’s Avenue. I do not accept that the wife needs Beaconsfield Rd in order to fund her income needs, albeit that it would make life easier for her and her husband if she did have it. Given the lack of specificity that she has provided in relation to the relevant factors under section 25 of the 1973 and her ability to meet her income needs (and the needs of the children) now that she has remarried, I do not see any basis for her claim that she should have 100% of the capital that exists in this case (i.e. both properties). I recognise that her ability to claim means tested benefits once Mr Md Miah is working may well be affected, although that, again, is another area in which I have no evidence or submissions on her behalf.61.I do think that, given the number of children and the disabilities of G, it is important that the children remain at St Michael’s Avenue if they can, whilst they all remain dependent on the wife. I say that for these reasons:i)It has been their home since 2014 (for eight years).ii)They need a big house, given their number. Fitting this family (now of seven people) into the 3-4 bedroomed former council house, Beaconsfield Rd, would be a marked change for them and would be a squash. iii)G has very particular needs. Beaconsfield Rd may have been adapted to G’s needs when the family lived there eight years ago. However, his needs have changed as he has grown older. iv)The hostility and division that have been displayed through these chronic proceedings has led this to be a divided family. As Balcombe LJ put it in Mullard v Mullard (1982) 3 FLR 330, remaining in the family home will help the children weather the stresses and strains of their parents very messy divorce. v)Fairness between the husband and wife can be achieved in a way that satisfies the overall aim of Section 25 of the Act if the wife remains at the property whilst the children are dependent upon her. 62.I now wish to turn to her capital position. In her sole name is 36 Beaconsfield Rd, Clevedon which is valued at £250,000 [H1 –marketing report by Connells] and is mortgage free. It was bought on 10th November 2014 for £65,500 through the right to buy scheme [D5]. It is described in the report as being a ‘three/four bedroom terraced property with rear garden.’ It can be seen on Google Street View as being in a traditional row of council houses and former council houses. 63.No apparent attempt was made on the wife’s behalf to consider the capital gains tax that would arise on a sale of the property or upon a transfer of it to the husband. It is not the principal place of residence of the wife. It was bought about seven months after 37 St Michael’s Avenue was bought. Because of the low purchase price, there has been a considerable gain even after indexation is taken into account. The parties are now divorced and, therefore, any transfers between them would not be between spouses. I agree with Mr Miah that CGT would be payable if the property were to be sold and, also that there would be likely to be CGT payable if the property were to be transferred from the wife to the husband. The only figure that I have for CGT comes from the back of an envelope calculation that Mr Miah did in his closing speech. As I stated above, he used a net figure of £230k for the sale proceeds of the property after CGT– costs of sale of £5k and CGT of £25k. I suspect that figure is about right although I cannot say more than that. 64.There is no way that the wife would be able to meet the CGT on transfer of Beaconsfield Rd to the husband together with her costs liabilities, if that property were to be transferred to the husband with her keeping St Michael’s Avenue. In my opinion, she has blown that possibility due to the way that she has conducted this litigation. 65.There is a dispute about the source of the money for the purchase of Beaconsfield Rd. The husband says that the money to buy the property was not raised from various businesses, as the wife contends, but was raised from family members. The husband says that, at the time of the purchase, he did not own any businesses and he produces documents showing refusals of mortgages from NatWest and also Lloyds TSB [D6]. As I will set out later, the husband says that he owes his brother, Enu Tazul, £40,000 for a loan received from Mr Tazul towards the purchase of Beaconsfield Rd. In the light of the husband’s dishonesty about the debt that he said that he had to Mr Haque, the intermingling of money within the husband’s family and business associates and the husband’s dishonest portrayal of his role within the business, I do not think that anything that this husband says about his indebtedness to his family is reliable. I will say more about this later but I do not accept that Beaconsfield Rd should be treated as being saddled with any indebtedness and I do not consider that the husband or the wife should be treated as having any remaining debts that relate to it. 66.Therefore, if Beaconsfield Rd is sold and the wife remains in St Michael’s Avenue, the wife will have enough income to meet her needs and there will be the sum of about £230,000 to divide. 67.In her Form E she said that she had debts of £22,132.67 [F112]. That relates to 3 ½ years ago (i.e. the date of her Form E in December 2018). Of that sum, £12,204 related to a car loan and the balance (about £10k) related to other card debts. Her section 25 statement, which is full of repeated contention about the husband, does not give any account of her current indebtedness. I had to insist that she gave some evidence about the current position on that issue. What emerged was unsatisfactory and turned on her oral evidence (which, as a whole, was also unsatisfactory, as was the husband’s oral evidence). Her documentary disclosure in enclosure K suggests these credit card liabilities (to which I was not referred at all during the hearing):68.Initially, in oral evidence, she said that she would not name the friends from whom she had borrowed money, and then said that she had not borrowed any from friends. She then said that she had borrowed £11,000 from her husband; I do not accept that she will have to repay that. She said that she has borrowed £100 from her sister (Shahida Miah), £3,000 from her brother in law and £1,000 from her nieces. There was no breakdown of the origins of the sums that she has paid to her solicitor in costs, although she said that she had paid on her cards. The loans from family members are soft loans. 69.None of that leaves me able to identify where the £49,000 has come from that she has paid to her solicitors. Given the order that I intend, she may be able to pay something off her credit card debts and, at least, avoid some the minimum payments. That will also enhance the ability of the wife and Mr Md Miah to fund St Michael’s Avenue.70.She says that she has no mortgage raising capacity; I accept that is so. At I-1 there is an email from a ‘senior personal banker’ supporting the wife’s contention that she has no mortgage raising capacity. There is no evidence about the mortgage raising ability of Mr Md Miah and so I will have to assume that he has none despite the fact that he will be earning £20k p.a. Even if he paid all of his bank savings to the wife (£11,500), that would only make a small dent in her liabilities. 71.The Wife’s oral evidence –The wife sought to suggest that, because of the blood relationship between Ahmed Mosthaque and Sume Begum, he could not be the father of X. She suggested that ‘you cannot marry your uncle.’ because they would not have been permitted to marry. Whilst writing this judgment, I realised that I needed to check what the blood relationship was thought to be between Sume Begum, Ms Mosthaque and the husband. I emailed counsel to ask. I was told by counsel for the wife in an email dated 21st June 2022: ‘my instructions are as far as my client is concerned, there is no blood relationship between Sume Begum, the husband and the wife, nor is there any blood relationship between Mr Mosthaque Ahmed and Sume Begum’. The other counsel emailed me to agree. Therefore, the point that the wife was making (‘you cannot marry your uncle’) does not make sense in relation to the marriage between Ahmed Mosthaque and Sume Begum. Further, the fact is that she and Mr Mosthaque did marry. The wife also suggested that she knew that Alom Uddin could not be father of Y because he ‘had a child two weeks ago and his wife came from Bangladesh’; that does not make sense, either. 72.She described how, on one occasion, the husband was in bed next to her in 2014. She said that she took his phone and saw that Sume Begum was texting him about G and was asking: ‘how was your day?’ She said: ‘I did not see much of what she was texting. When I saw my son’s name, that they were talking about him, I got suspicious. She sent him 3 beautiful pictures of her. They were just like chatty saying: ‘hi, how are you?’ I got crazy angry. I took the phone and I showed him and I asked: ‘What is going on: why are you talking to her as if she was a wife’. He snatched the phone from me. He took it so fast and looked angry and shattered. I said: ‘I’m sure that she is your wife’. The wife said that the husband saved Sume’s number on his phone under a man’s name, Shumon (Shumon is his cousin). The husband denies it. Although that text exchange (which I accept took place) does suggest that the husband had a sufficiently close connection with Sume Begum to be messaging with her in those terms, it does not go anywhere to show a sexual relationship between them, let alone a marriage.73.The wife said that Sume Begum did come into the restaurant with X for D’s birthday; I observe also that Sume Begum has worked in the restaurant. The wife said that the husband referred to X as his ‘son.’ I think it highly unlikely that the husband would announce in front of the wife that X was his biological son and, therefore, I do not accept her evidence on this point. She said that, culturally, cousins would call each other brother and sister and I accept that is so. I also accept that the husband has treated X, in particular, as if he were part of the family. I also note that, since Sume Begum is not a relative and Ahmed Mosthaque is only a distant relative, that X would only be a distant cousin at most. If Ahmed Mosthaque is the cousin of the husband’s father it would mean that X would be the husband’s second cousin, if Ahmed Mosthaque is the father. 74.As to the restaurant, the wife said that the husband said to her: ‘this is my restaurant. We will make money there’. In cross examination she said: ‘As to the business – I did not see any of the information about the financial position of the business. He said that he was the boss. I can’t be sure who owns the business.’ In my opinion, although it is understandable that the wife should not differentiate in everyday language between ‘boss’, ‘manager’ and ‘owner’, that differentiation should have been made within the formality of court proceedings. 75.I accept that he did say words to the effect that he was the boss of the restaurant. It adds to the picture that is clear from many quarters of the evidence that the husband managed the business with his brother Almas. It does not mean that he owned the building or the shares in Rexvilla or Bluebird Restaurant Ltd. The business, the company and the building are separate. There has been no attempt by the wife to show an understanding that they are separate. Many restaurant managers (and, indeed, some chefs) will refer to restaurants where they work as ‘my restaurant’; it does not mean that they own the building from which the restaurant operates. Nor does it mean that there is no holding company. Many restaurants must operate on just that basis. 76.The wife said that the children grew up with money and that there was ‘lots of money flowing around’. She was asked about this in cross examination and she accepted that, during the marriage, the family claimed state benefits, including means tested benefits (child tax credit and working tax credit). How this family managed to receive that amount of state benefits, I do not know because I do not have the necessary documentation. The wife said that the benefits were paid into a bank account in her sole name but the husband made the benefits claims. With the sort of access to money through the business that I have now been able to identify, the benefits and the rent from 36 Beaconsfield, I consider that this family must have had a standard of living that was at least reasonable, if not more.77.The wife maintained her assertion that the husband has a 75% share in the restaurant. That is based on her understanding of the partnership share that the husband had in the former business that ran from 54 High Street. I do not accept her evidence on this point; she has not studied the existing documents with sufficient care in relation to the issues that she raises about the business, the properties or the company. 78.She considered that the husband has put the children under pressure not to give evidence. She said that, two weeks ago, he came to the home and spoke to the children in the drive way and, recently, bought a car for E. She said that he was saying in a sweet way: ‘don’t give evidence about daddy because if you say it, daddy will be very hurt’. The children, she said, love their mum and their dad. I do not accept that the wife was present when the husband spoke to the children on that occasion; the wife’s account comes from the children. I accept that both parents love the children and that the children have come under pressure from both of them. The wife wanted E and B to give evidence; the husband did not. The children will be well aware of that.79.She said that she had very little knowledge about the lease on 50-52 High Street as the husband did not talk about it and just said that it was his business and that it would give the children a future. She said that she did not ask questions at the time. That has to be compared with paragraph 13 of her statement at C3 where she says that the husband ‘confirmed’ that ‘he had bought the property…and further confirmed that he held a 75% share…in the property.’ In oral evidence she said: ‘he used to say ‘this is my business’’. However, she then went on to say: ‘he never disclosed anything to me. He wanted to keep everything secret’.80.I do not accept that the husband told her that the property, 50-52 High St, was his. The fact is that the property was not his and it never has been. The husband may well have said that the business was his and, in the sense that he and Almas control it, that would have been true. 81.In reply to questions from Mr Meethan, she said: ‘He [the husband] did not mention any money that he was putting into 50-52 High St. I can’t point to any sum that he did put into the property. I would have no idea where the money came from for the purchase of High St, beyond the Natwest mortgage. I don’t know anything about this transaction. I do not know whether Rupia Begum and the aunt, Easmin, bought the property themselves.’ To Mr Miah she said: ‘I don’t know whether Rupia Begum and Easmin bought the property (High St) in 2008. I have not seen the 4th statement by Rupia. I don’t know how the purchase of the property was funded.’82.She said that she did not see Sume Begum with the husband at all. When she asked the husband whether he had married Sume, the husband told her: ‘no, no, no.’ She did not try to contact Ms Begum. Her children came home one time and said: ‘we have a step-mother’ Therefore, about six or seven years ago, she did go to the property where Sume was then living, and spoke to the neighbours, she said. She said that a neighbour told her that the husband and Sume lived there. At C8, paragraph 39, the wife says that the neighbour shouted: ‘you are the ex-partner of Alim Uddin and I have been told to call the police if you harass his wife.’ I think it highly unlikely that the neighbour did say that. The account in paragraph 39 is inaccurate in any event since it suggests that this occurred in Morland Rd, when the wife’s evidence is that it occurred at the previous home of Sume Begum, 15 Beale Way, Burnham-on-Sea.83.As to Morland Rd, she said: ‘I just thought, how can Sume Begum and Shakir Jumon afford to buy a house? Sume had just come back from Bangladesh’. It is plain it is that and her belief that the husband and Sume Begum were married and had children together, rather than any study of the evidence that led her to make her assertions that the husband owns the whole beneficial interest in the property. 84.The wife was plainly very distressed about the circumstances in which she finds herself and also because she feels that the husband has formed a secret involvement with Sume Begum. I did not find her oral evidence helpful. Much of it was not accurate and suggested that she had not analysed the documents that have been filed. 85.The husband’s disclosed position – he stated in his Form E that he had an income of £9,216 p.a [276]. In his statement at G39 he says that his current income is £1,417.99 each month, net. He says that he works for an average of 43.33 hours a week and describes himself as being at the ‘pinnacle’ of his employment and not able to earn more [G39]. He produces some of his P60’s for the years 20/21 and 21/22 at K312-313 and some of his pay statements at K313 – K356. The pay statement at K356 relates to the four week period ending 30 April 2022 and shows a net income of £1417.99. The pay statements show that he is paid every four weeks, not monthly, therefore, his total net income would be £18,433.87 net p.a. on that basis. After paying £243.64 in child maintenance (i.e. £2923.68 p.a.), he would be left with about £15,500 net p.a. He does not pay rent for his accommodation at 50-52 High Street, nor does he pay any utility bills there. He has access to food from the restaurant also. 86.The husband’s true income was something that received very little attention in cross examination that was focussed on the trust claims. It was me who called for the accounts of the company, Bluebird Restaurant Ltd and who asked the main body of questions about them. I examine those accounts later (under the heading of the company’s name below). Overall I am sure (sic) that the husband has under-declared his income and that he is taking far more out of the business than he has stated. 87.In his statement, he said that he needs to be housed in a one-two bedroom property in Burnham and that a suitable property would cost between £219,950 and £250,000. He says that his borrowing capacity is very limited, given his income and liabilities. At I-4 there is a letter from Lloyds Bank suggesting that, on the basis of an income of £19,761 and maintenance payments of £137 p.m. (sic) it would lend him £34,360. The issue of his housing needs and mortgage raising ability was not pursued at all during the hearing; I was not referred to any property details although I will set out the bundle contents on that issue later. 88.I think it highly unlikely that this husband will buy a property. He is much more likely to live within the tightly united and intermingled society of his family and work colleagues at 50-52 High St whilst using accommodation at the homes of others, including Ms Sume Begum, when he feels the need to do so.89.He holds the former matrimonial home, 37 St Michaels Ave, Clevedon in his sole name. It was bought on 11th March 2014. It has been valued by Connells at ‘£500,000+ and an initial asking price in the region of £525,000’ [H8]. The husband says at G39 that it was bought ‘in part by using a private mortgage of £60,000 (charged against the property) and further unsecured loans from family members. The monthly repayments were originally £2,240; as a result of the pandemic, these have been reduced to £550 and now £540 per month. I have always and continue to pay the full monthly mortgage payments. I am reliant on family members to assist me each month in paying these. ’ I have already stated that any loans that he does have are ‘very soft’. 90.The property is subject to a mortgage to a Brian and Annette Buckley. During the hearing I was handed a copy of the Land Registry document headed ‘Land Registry – Legal charge of a registered estate – CH1’, dated 11th March 2014. That document records the terms of the charge over the property in favour of Mr and Mrs Buckley. I was also handed a copy of the Official Copy of the register of title relating to this property. It records that the husband is the sole proprietor and also that there is a registered charge in favour of the Buckleys.91.At D6 the husband says that he ‘obtained a private mortgage from Brian Ward Buckley and his wife Annette Kathleen Buckley for £170,000 [sic] plus interest. The charge was drawn up by their solicitor Mr S Pritchard of Menmeer Shuttleworth, Bexhill. I attach, marked MAU 2, a copy of the legal charge dated 11th March 2014, Land registry Form CH1 dated 11th March 2014 and Office Copy entries in relation to 37 St Michael’s Avenue. I borrowed monies from family members to deal with the balance of the purchase monies from family members to deal with the balance …and attach marked MAU3 copies of the two cheques from J Begum totalling £70,000 and a bank transfer from my brother’s wife of £50,000.’92.The wife says: ‘there is a soft loan mortgage agreement where a payment of £2,240 is made monthly to a Mr & Mrs Buckley. The declared income of D1 namely £739.00 per month, demonstrates that there was no way he was able to meet a monthly mortgage payment of £2,240 without additional monthly income which C says was derived from the two-business interest which D1 had throughout their marriage.’93.There is no doubt that the mortgage exists and is a proper, hard loan that has to be repaid. The charge is recorded on the Official Copy of the register. Since the wife has never filed a Form A, she cannot have complied with Rule 9.13 (3) of the 2010 Rules and so, if necessary, I will delay the issue of the order in this case whilst that is done. The wife made this assertion about the mortgage at C2 ‘as far as I understand, the purchase was cash from monies we had from the various businesses. But little did I know he has made a secret document to show that he had a mortgage from some friend; this is not true, this is a fictitious arrangement between H, Brain Buckley and Annette Buckley.’ It is not ‘fictitious’ at all; her assertion is an example of her not having studied essential documents before making allegations in these proceedings. 94.There is no current documentary evidence about the amount of the mortgage. At F421 there is a letter from Mr and Mrs Buckley, dated 21st February 2019, which reads: ‘this is to confirm that the capital balance owing on your mortgage contract regarding 37 St Michael’s Avenue, Clevedon…between you and Brian and Annette Buckley…is £50,000.’ When I asked, I was told that the mortgage now stands at about £10,000. That means that it appears that the mortgage reduced from £170k (if that be the correct figure) in 2014 to £10k in 2022 – a repayment of capital alone of £160k in eight years. Plainly, on the income that the husband has disclosed, that sum could not have been paid from his wages since the capital repayments alone would average out at £20k p.a.95.In his Form E the husband says that he has debts of £260,909.36. In his statement at G40 he says that he owes:96.The husband seeks to suggest that the debts to Mr Haque and to Jalal Uddin (a work colleague) arose from money that he borrowed to pay the mortgage on St Michael’s Avenue.97.At K492 there is a letter from Mr Haque (R4, sometimes call Hoque) in which he says that the husband is borrowing £2,000 every month from him for his mortgage repayments. He says: ‘this is to help him get through his difficult time as he is getting a divorce. This money will be paid back to me once everything is sorted. I have been making this payment since 1/3/2017 to 4/5/2020. I have stopped making payment because I am struggling to pay Alim Uddin as the pandemic has affected me a lot. The total amount that Alim owns [sic] me is hundred and eight thousand pounds [sic]. However, I have been struggling to maintain my monthly expenditure. I would sincerely appreciate Alim Uddin returns my money as soon as possible either via sale of the property or further lending.’98.I will set out in much more detail the evidence that Mr Haque gave about this. However, one aspect of that evidence was that Mr Haque was sure that the period in which he had been paying £2,000 p.m. was from 1st March 2017 to 4th May 2020. In his Form E, the husband sought to suggest that Mr Haque had been lending him £2,000 p.m. since March 2014, when St Michael’s Avenue was bought. Thus, not only is there an unexplained (and unexplored by W) difference in the suggested periods of the alleged loan but the evidence revealed that Mr Haque was earning no more than £1600 a month in the initial stages of the loan period that he alleges (2017 to July 2018) and did not have the resources to make any such loan. Although I set this out in detail later, Mr Haque was working part-time at the Tesco’s checkout and also as a waiter at the restaurant. 99.Another immediate aspect of the unreliability of the evidence about the Haque ‘loan’ is that the husband said in his Form E that Mr Haque was owed £82,000 in relation to it [F8]. The Form E is dated 26th November 2018 but the financial information about the loans was said in the Form E to show the position as at August 2018 (see para 2.9 at F8). Payments of £2,000 a month from 1st March 2017 until August 2018 would have totalled £36,000, not £82,000. 100.One of the most painful parts of this hearing was watching Mr Haque giving his embarrassingly untruthful evidence and being faced with the documentation that shows that he was used by the husband as a conduit for the husband to draw money out of the business. There is no loan from Mr Haque or Bluebird Restaurant Ltd to the husband, of that I am satisfied so that I am sure (i.e. to the criminal standard of proof). The fact that the falsely called ‘loan’ was stated to be from Mr Haque to the husband and not from Bluebird Restaurant Ltd shows that the two were viewed as being interchangeable. 101.At K493 there is a letter from Jalal Uddin, dated 27th February 2019 (sic) in which he says: ‘this letter is to confirm that I…help Alim Uddin…every month for his mortgage payment. I borrow [sic] Alim £460 every month to help him, to pay his mortgage…as promised this will be paid back to me once he is back on his good term again.’. The husband referred to this in his Form E [F8]. Given the state of the husband’s evidence, the dishonesty of the evidence that was given in relation to the Haque ‘loan’ and the fact that I do not have any oral evidence from Jalal Uddin, it would be perverse to accept the existence of a loan in favour of Mr Jalal Uddin. If there is such a loan, it is very soft, I find. 102.That being so in relation to the figurehead, Mr Haque, who was given the position of nominal owner of the business in 2018, I think it highly likely that the same applies in relation to the previous nominal owner of the business, Rexvilla Ltd of whom Enu Tazul was the sole shareholder and director. Nothing that I have heard or read persuades me that there is any true loan from Enu Tazul to the husband. 103.There is another point about the husband’s evidence in relation to the mortgage payments. In his statement at G41. He says that, until the pandemic, he was borrowing £2,000 p.m. from Mr Haque for the mortgage payments and £460 p.m. from Mr J Uddin. Those payments that were purported being paid to the husband by Jalal Uddin and Mr Haque totalled £2,460 p.m. and stopped in March 2020. In his statement, the husband says: ‘I now pay £540 less towards the monthly mortgage payments’. Thus, he is seeking to suggest that, on the resources that he has had, he paid £2460-£540 p.m. = £1,920 p.m. Since March 2020 his four-weekly net income has ranged between £1,278.68 p.m. [K329] and £1,417.99 [K356], with it often being no more than £1,085.24 [K339]. Thus the mortgage payments that he says that he was making exceeded his total net income, according to his disclosure. The only way in which he could have done that is by continuing to take additional money out of the business, as he did when using Mr Haque as the conduit for that stream of money. 104.I wish to emphasise that I find that, in the case of the alleged debt to Mr Haque, the evidence given by the husband and Mr Haque was dishonest. There is no other word for it. 105.The husband’s evidence about his other debts – The evidence that the husband provided about his other debts is hopelessly inadequate and unreliable. 106.Amongst the other evidence that I have about the husband’s alleged debts, are the following:i)At K489 there is a letter from a Juthsna Begum (H’s cousin’s sister) in which she says: ‘I have borrowed [she means loaned] Alim Uddin…£70,000 to purchase his house on 5th December 2012. On the sale of the property, Alim Uddin will return the money borrowed to him’. She goes on to say that she has experienced financial hardship and has fallen into arrears on her own mortgage. Therefore, she says, ‘I would sincerely appreciate Alim Uddin returns my money as soon as possible.’ Neither property was bought in 2012. The debt that she asserts is 9 ½ years old and is said to have been made by a member of the family within which there is considerable intermingling of financial interests. If any of this money had been loaned and was repaid I would not expect the husband to give a truthful account of that. I have not seen Ms Justhna Begum. At most, this is a very soft loan.ii)At K490 there is a letter from Almas Uddin (H’s brother, who was married to Easmin) which states: ‘this letter is to confirm that I…have borrowed [he means loaned] Alim Uddin £50,000 to buy his house in 37 St Michaels Ave, Clevedon. We have agreed a term that when it comes to me purchasing a house for myself, I will be asking Alim for the money I have borrowed him, to obtain money for my house deposit. I would highly appreciate if Mr Alim Uddin would be able to return the money as soon as possible.’ Almas Uddin and the husband are very tightly knitted together. The husband and Almas are the driving forces of the business. The way that their finances are run and intermingled with the business leaves me in a position where I could not possibly accept the suggestion that this husband owes money to his brother from eight years ago. Again, if he does, it is a very soft loan. iii)As to the suggested loan from Enu Miah Tazul [H’s younger brother] of which I have already spoken, above, there is a letter at K491 which states: ‘this letter is to confirm that I…will lend [sic] Alim Uddin £40,000 to buy a house in 36 Beaconsfield Rd, Clevedon…We have agreed a term that when it comes to me purchasing a house for myself, I will be asking Alim for the money I have borrowed him, to obtain money for my house deposit. However, times have severely changed over time and the global impact from the pandemic has left me in desperate need and I would be more grateful as to Alim Uddin sourcing means in returning the funds borrowed as soon as possible.’ I have already rejected the evidence of this alleged loan and said that, if I am wrong, this would be a very soft debt.107.Husband’s oral evidence - The husband gave extensive oral evidence. It included the following salient points:i)He accepted in evidence that he was the manager of the restaurant and also the chef. He referred to a conversation when he spoke to B about the restaurant. B says that the husband called himself the ‘boss’ of the business. The husband says that he told B that he was the manager; the difference between their evidence is unimportant as I have stated albeit that I think ‘boss’ is more likely. ii)He did not mention the Chandni Catering Ltd involvement. He said that the company that owns the business is Bluebird Restaurant. The involvement of Chandni Catering Ltd only emerged from the subsequent evidence of Mr Haque. That involvement only appeared within the documentation from the payslips of the husband which, from October 2021, have the name of Chandni Catering Ltd written in the top right corner [K350], in place of Bluebird Restaurant Ltd [K349]. Beyond that, the only other possible reference was in Mr Meethan’s opening document where he said in paragraph 7: ‘Counsel understands that there is currently a trial period for a sale to another company’iii)He said that he has no other sources of income besides the declared wages (i.e. the £1,417.99 – K456) that are paid to him from the restaurant. I do not accept that evidence for reasons that I have explained and explain further when looking at the business accounts below.iv)He said that Mr Haque expects him to repay the money that he has lent him. He maintained the fiction that this was a loan.v)In relation to the land in Bangladesh [A10], he said that this was the only property or capital asset that he had at the time of the purchase. He put something between £9-14,000 into the purchase from the sale of other land that he had there and which, he said, the wife did not like. He said that Sume Begum’s name was on the document of title in relation to the land because she was in Bangladesh at the time of the purchase and Ahmed Mosthaque was not; that explanation does not bear scrutiny because the husband was also in the UK at the time of the purchase and his name appears on the documents of title. I do not have a satisfactory explanation from the husband or Ms Begum as to why Ms Begum’s name appears in the documents. vi)He said that he has been to 4 Morland Rd but does not have any belongings there. He said that he has stayed there only a couple of times when his children were with him, because he did not have space for them in his quarters at 50-52 High St. I accept B’s evidence that the husband did have belongings at the house and slept there more than just a ‘couple of times’.vii)He said that B had been told to say what he did in his evidence and in his statement. He denied that B had ever worked for four days a week at the restaurant or been paid £200. I deal with this when considering B’s evidence. viii)Before he managed the restaurant at 50-52 High Street there was a restaurant next door where he was in partnership with one other. That previous restaurant (at 54 High St) closed in 2003-4 as business was not very good. I see no reason not to accept that evidence –if the business had been profitable, it would have continued. ix)The husband said that his brother, Enu put £19k towards the purchase of 4 Morland Rd; but he (the husband) did not put anything towards the purchase. x)He said that, when Beaconsfield Rd was bought, he was lent £20k by his brother, Enu and £20k by Ahmed Mosthaque. Then, when Ahmed wished to buy his own property, the husband borrowed a further £20,000 from Enu to pay off the debt that he owed to Ahmed Mosthaque with the result that the overall debt to Enu became £40,000. The precise workings of this arrangement do not matter for the purposes of this judgment; the key points are that the husband did not put any money towards the purchase of Morland Rd and that any debt to Enu is very soft, in my judgment. 108.P v Q - In describing the debts as ‘very soft’ I have considered the case of P v Q [2022] EWFC B9 at paragraph 19 viii in which HHJ Hess stated, in paragraph 19:I have looked at a number of authorities which deal wholly or partly with this point and I include the following in that category: M v B [1998] 1 FLR 53; W v W [2012] EWHC 2469; Hamilton v Hamilton [2013] EWCA Civ 13; B v B [2012] 2 FLR 22; Baines v Hedger [2008] EWHC 1587; and NR v AB [2016] EWHC 277. I have also looked at an article by Alexander Chandler (as it happens the pFDR tribunal in this case) on the subject: Family Loans an intervener claims – taking the bank of mum and dad to court [2015] Fam Law 1505. I derive the following summary of principles from this reading:-(a) Once a judge has decided that a contractually binding obligation by a party to the marriage towards a third party exists, the court may properly wish to go on to consider whether the obligation is in the category of a hard obligation or loan, in which case it should appear on the judges’ computation table, or it is in the category of a soft obligation or loan, in which case the judge may decide as an exercise of discretion to leave it out of the computation table. (b) There is not in the authorities any hard or fast test as to when an obligation or loan will fall into one category or another, and the cases reveal a wide variety of circumstances which cause a particular obligation or loan to fall on one side or other of the line. (c) A common feature of these cases is that the analysis targets whether or not it is likely in reality that the obligation will be enforced. (d) Features which have fallen for consideration to take the case on one side of the line or another include the following and I make it clear that this is not intended to be an exhaustive list. (e) Factors which on their own or in combination point the judge towards the conclusion that an obligation is in the category of a hard obligation include (1) the fact that it is an obligation to a finance company; (2) that the terms of the obligation have the feel of a normal commercial arrangement; (3) that the obligation arises out of a written agreement; (4) that there is a written demand for payment, a threat of litigation or actual litigation or actual or consequent intervention in the financial remedies proceedings; (5) that there has not been a delay in enforcing the obligation; and (6) that the amount of money is such that it would be less likely for a creditor to be likely to waive the obligation either wholly or partly. (f) Factors which may on their own or in combination point the judge towards the conclusion that an obligation is in the category of soft include: (1) it is an obligation to a friend or family member with whom the debtor remains on good terms and who is unlikely to want the debtor to suffer hardship; (2) the obligation arose informally and the terms of the obligation do not have the feel of a normal commercial arrangement; (3) there has been no written demand for payment despite the due date having passed; (4) there has been a delay in enforcing the obligation; or (5) the amount of money is such that it would be more likely for the creditor to be likely to waive the obligation either wholly or partly, albeit that the amount of money involved is not necessarily decisive, and there are examples in the authorities of large amounts of money being treated as being soft obligations. (g) It may be that there are some factors in a particular case which fall on one side of the line and other factors which fall on the other side of the line, and it is for the judge to determine, looking at all of these factors, and maybe other matters, what the appropriate determinations to make in a particular case in the promotion of a fair outcome.’109.The overall position of the husband – I will examine the trust claims shortly and in detail. I have already stated my conclusion that they fail. I wish to record now where that leaves the husband. I find that his income is much higher than he has admitted. For much of the time he has been paid his wage in the sum that I have stated (about £18,500 p.a. currently). In addition he has been taking at least £2,000 p.m. from the business up to the start of the pandemic. That would leave him with a combined income of £24,000 + £18,500 = £42,500 p.a. Since the beginning of the pandemic there is a lack of evidence about what he has been taking out of the business. Having seen the accounts (as I set out later) I do not see why he should not have continued at least that level of drawing from the business. The poor quality of his evidence makes that the best that I am able to say about his income.110.In addition, the husband will remain in control, with his brother Almas, of the business. He will have the continuing rent free accommodation at 50-52 High St and the support of family and colleagues in relation to any temporary accommodation needs. He will bear none of the wife’s responsibilities for the children and will only be paying the limited amount of child maintenance that I have recorded. 111.Evidence of alternative housing - Enclosure J contains the property details that the parties produced to show what each might need to pay if either had to buy a property. Those produced by the wife are shaded in blue; those produced by the husband are shaded yellow. The details are as follows:112.It is plainly not sensible for the wife to have produced details of three properties in Clevedon and Nailsea that are more expensive than the current home. I heard no oral evidence in relation to any of the above. I accept that there are properties that the husband might buy in the bracket of £205,000 to £250,000, although I think that it is very unlikely that he will choose to buy one. I also accept that there are middle-ranking houses in Clevedon that the wife would be able to buy for about£400,000 and which would provide adequate accommodation for her, G and D once the others have left home. 113.B – oral evidence – At C111 there is a statement from B. In it, he says that: i) he has heard the husband saying on many occasions that he is the owner of the restaurant; ii) he can confirm that his father is married to the 7th respondent; iii) the two children are the children of the 7th respondent and his father; iv) he has visited 4 Morland Rd where his father stays with his ‘stepmother’ and half siblings. The husband responds to this statement at D3, denying B’s primary assertions.114.In oral evidence B said that he had come to court so that the truth might be known. His mother had wanted him to come to court and his father had told him not to get involved; I believe that account. 115.He said that he had typed the main body of his statement at C111; he asked E how to structure the statement but did not know she had done one. He was cross examined on the similarities between the wording of his statement with that of E (C109). Given those similarities, I was expecting to hear B say that he had written a draft statement and a solicitor had transposed it into the statement at C111; he did not say that. Having studied the similarities in language, contention, content and font between the statements of B and E, I do not believe the account that B gave as to how his statement came to be filed in those terms. Nor do I accept that E and B did not discuss their statements together.116.He said that he has worked at ‘my Dad’s restaurant’. When he finished his GSCE’s last summer he worked there on Wednesdays, Thursdays, Fridays and Saturdays over the summer. He said that his father was paying him about £200 pw in cash for the work that he did as a waiter. The father denied that B was working that often at the restaurant or that he was paid £200 p.w. On that issue, I believe B.117.He said that, when he was younger, his Dad used to dress him up and send him to the restaurant where people called him ‘junior boss.’ He referred to a time some years ago when he thought that ‘one of the other workers, a Mr Haque, was the owner of the restaurant and I ran to the back of the restaurant and started crying and my father told me: ‘Oh no, he’s not the owner. I am the boss.’ I am boss of restaurant’. B said that his father said this in broken English and would say on other occasions ‘this is my restaurant.’ I believe that evidence from B also. The husband said in evidence that he told B, on the occasion in question, that he was the ‘manager’ of the restaurant. The difference between ‘boss’ and ‘manager’ for these purposes is unimportant but, given the husband’s poor English, I think that ‘boss’ was more likely. I accept that the husband did not tell B that he was the ‘owner’ of the restaurant premises. He did assert his role as the person who ran the business although I also find that he fulfilled that role in conjunction with Almas. As B said in cross examination: ‘My Dad was in charge. He was the boss of the restaurant. He did not say he was the owner. He said that he was the boss. He said this a few times.’118.B said that Morland Rd is his brother’s home - his evidence made repeated reference to X, rather than Y. He described X as his ‘step-brother’ although the difference between stepbrother and half-brother was merely language and his assertion was that he knew that X was his brother. In cross examination he said: ‘My mum told me when I was young that my father was married to someone else and that is when I knew that X was my half-brother. I say that he is my half-brother because my dad is married to R7. No one but my mum has said that my father is married to Sume Begum.’ I accept that the source of B’s information on this issue has been his mother. For reasons that I have stated, I do not accept that she had reliable evidence that Sume Begum was married to the husband or that X or Y are his children. The wife certainly believed that to be the case and, I find, has educated the children into her own beliefs. I do not blame B for this. I have already stated my findings about the alleged marriage to Sume Begum and the paternity of the two children. 119.B said that, from June / July 2021 he used to stay at 4 Morland Rd every week and would spend the night there. He said that his Dad would sleep in a room with him and then, when he went to sleep, his Dad would go to Sume Begum’s room. I asked B how he knew that, and he said that he had seen his father coming out of her room when he went to the toilet. He said that he stopped going to Morland Rd in January / March of this year. The father denies that B saw him coming out of Sume’s bedroom. I accept B’s evidence. I accept that B had no wish to give evidence that was contrary to his father. I see no reason why he would invent that account. I do not accept that the wife’s influence would extend to the point of him doing so.120.B said that his father was living at 4 Morland Rd, but he could not say for how long he had been doing so. He said that, at the top of the stairs there was his father’s room; that was the room that he and his father occupied when they stayed. He said that, every day that he worked at the restaurant with his father, his father would take him to Morland Rd to sleep. I do not accept that B is in a position to say that the father lived at Morland Rd all the time. I find that, when the father and B were working at the restaurant, they would sleep at 4 Morland Rd as B described. There is a geographical logic to that arrangement since the restaurant is in Burnham and Morland Rd is about 1.4 miles away in Highbridge, according to Google maps. For the father to have taken B back to the home in Clevedon (and to have picked up in the morning) would have involved a journey of 18.5 miles each way.121.Oral evidence of Sume Begum and Shakir Jumon – I now want to refer to what these two parties said in evidence. Sume Begum denied that her marriage to Ahmed Mosthaque was a sham. She said that the purchase in 2010 of the land in Bangladesh had been arranged by Mr Mosthaque and her father; she had no direct involvement in the purchase. She described the limited involved that Mr Mosthaque has had with X. She says that Mr Mosthaque now lives in Birmingham and has mental health ‘issues’.122.Ms Begum was asked about the funding of her share of 4 Morland Rd. She said that her bank account at L35 shows £20k being paid out on 25th February 2016 in relation to the purchase. The down payment, in fact of £19k, came from Enu Tazul. She said that, in 2014, she had lent the husband and wife £20k. In 2016 that money was repaid to her by Enu Tazul and she used that money to buy 4 Morland Rd. There is nothing to contradict that evidence and, on that basis, it would mean that the husband did not contribute to the purchase of 4 Morland Rd. A debt was repaid (not by H or W, but by Enu Tazul) and that money was the house down payment.123.Mr Jumon said that in evidence that he and Sume Begum saw 4 Morland Rd together and decided to buy it. He said that, altogether, he paid £20k for his share. His share came from £13k that Sume Begum held on his behalf as he is not good with money; there is no documentation that I was shown that related to this but nor was there any effective challenge to what he said. He said that another £2k came from another account and that the other £5k was from money that he owned. On the evidence there is no basis for suggesting that Mr Jumon did not pay 50% of the ‘down-payment’ for the property. 124.Morland Rd – I will deal now with 4 Morland Rd, because the issues relating to that property have been so intertwined with other issues in the case.125.Since its purchase in 2016, this property had been held in the joint names of the seventh and Eighth Respondents. However, on 21st May 2021, it was transferred from their joint names into the sole name of the Seventh Respondent [G69] and so that, now, represents the current position in relation to its legal title. At G66 there is a copy of the current Official Copy of Register of Title, relating to it. The Eighth Respondent, Mr Jumon, says at G69 that he transferred his share of the property to Sume Begum because he wishes to start a family and wanted to be independent, financially. He says that, at the time of the transfer in May 2021, the property was worth £199,000 and there was an outstanding mortgage of about £102,000. At G69, Mr Jumon says: ‘the seventh Respondent and I have a verbal agreement wherein she is to pay me the sum of £47,500 for my 50% share of the property as and when I am in a position to purchase my own property. As it stands, the seventh Respondent has paid me the sum of £10,000 and the balance of £37,500 remains outstanding.’ The payment of £10,000 can be seen being paid into his Nationwide account at G73.126.There is a valuation of the property at H16 by Berrymans at £220-£230,000. That being so, the net value of this property to Sume Begum, taking into account the sum owed to Mr Jumon, would be £225,000, less the mortgage of £102,000, less costs of sale (about £4,000) and less the debt to Mr Jumon – a total equity of £81,000. The wife and her legal team did not address how it could be said that the evidence could support a claim that the husband had a 100% of the beneficial interest in the property – the interest that the 8th Respondent had in the property was never addressed. Given that there was no basis for challenging that Mr Jumon, at very least, had a half interest in the property and also given the limited equity in the property and the availability of Beaconsfield Rd and St Michael’s Avenue, proportionality alone should have deterred the wife from pursuing the 7th and 8th Respondents in the way that she has. It is that aspect of the claim that has sucked in the other allegations about Sume Begum, such as whether she and the husband were married. 127.At G46, the wife says: ‘I believe the First Respondent has used matrimonial assets and/or money to purchase and/or pay deposit as well as servicing the mortgage payments in respect to 4 Morland Road, Highbridge, TA9 3ET (hereinafter referred to as the “Second Property”). The Second Property was purchased in May 2016. On 4 January 2016, the First Respondent set up a Standing Order (hereinafter referred to as “SO”) of £1,000.00 to his personal account. This SO was made until 1 June 2017. I have every reason to believe that this SO was setup in order to aid the purchase of the Second Property given the said timings of the SO and the purchase of the Second Property. The Second Property was conveniently registered in the name of the Seventh and Eighth Respondent to conceal the true ownership given that the Second Property is used exclusively by the First and Seventh Respondent along with their two children.’128.Through her counsel’s opening, the wife says: ‘W will say that R7 and R8 were in no position to buy 4 Morland Rd…and down payment and subsequent mortgage payments were maintained by H which were proceeds of matrimonial assets diverted through R3, R8 and H’s brother, Enu Miah Tazul….W will say that Bangladesh land registry documents clearly mention H and R7 are married and the fact that H and R7 have children together who were introduced to W and her children is irrefutable evidence which confirms that H and R7 are clearly lying and it is in their interest to lie otherwise their entire case as well as their credibility is seriously damaged. It also damages R2, R3, R4-6 and R8…It’s no coincidence that Holley and Steer and Ash Clifford represented and represent H, R2 to R5 and R7 and 8. It is H who is bank rolling their defence. Holly and Steer clearly were aware who they were taking instructions from and had no choice but to bail out from representing any of the parties as clearly Mr Fleming is likely to be a key witness based on the disclosures and W will be seeking to witness summons Mr Fleming for trial, subject to the court’s permission.’129.At the start of the hearing, I asked whether there was a request for a witness summons to be issued for Mr Fleming to attend; I was told that there was not. None of the facts asserted by the wife in support of the husband having contributed to the purchase of 4 Morland Rd, or the mortgage on it, were substantiated in evidence. 130.In relation to the purchase of this property and beyond the assertions of the parties in statements, there is very little documentation. Whilst writing this judgment, I have searched through the bundle again to see what documents have been filed for me to consider. I do not have the conveyancing file. There has been some examination of the Lloyds bank account of Sume Begum [L30-L88 but nothing came from the questions relating to it or the highlighted payments. The standing order payments (which, in any event, are said to relate to a period of 18 months only) have not been cross related to any bank accounts of the 7th and 8th Respondents and there is no evidence of any payments made by the husband to the mortgage. There is no evidence of any payment made by the husband to the purchase. Even if the loan arrangement between the husband and Enu Tazul (the £40k loan) related to money that was applied to the purchase of 4 Morland Rd, that does not lend any support to the wife’s claims that the husband had an interest in the property. 131.By her statement at D26 Sume Begum says that she bought the property together with her sister’s husband, Mr Shakir Jumon, because they could not afford to buy it separately. She says that she and Mr Jumon have been living there since it was bought. She lives there with her two children and Mr Jumon lives there with his wife. Sume Begum says that she works at the restaurant at 50-52 High Street and has been doing so for many years. Mr Jumon has filed a statement at D29 which gives the same account as that of R7 in relation to Morland Rd. In her pleaded defence at A50, Ms Sume Begum had said: ‘In response to the purchase of 4, Morland Rd, I purchased the property with my brother in law Shakir Ahmed Jumon on April 22nd 2016 and the mortgage payments are made from our joint mortgage account. Mr Uddin has no involvement or financial interest in this property.’132.In his closing speech Mr Meethan submitted: ‘In relation to 4 Morland Rd, the wife has never made clear what type of trust is alleged to have existed. There is no basis for saying that the husband contributed to the purchase. No case was put about a common intention. There is no basis for suggesting that there was any form of common intention that would support the wife’s contentions that the husband had a beneficial interest in the property, let alone a 100% interest.’ Mr Meethan was right. There is no evidence to suggest that, if Ms Sume Begum were to dispose of 4 Morland Rd, any sums of money would be given to the husband or anyone else. 133.