Case No. EWFC-75

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.