JUDGMENT (anonymised)
1.The is my Judgment on the Financial Remedy case between Mrs G and Mr G which I heard over 3 days on the 15th – 17th November 2022 and reserved my Judgment. I shall call the parties “the Wife” and “the Husband” for convenience I hope they will excuse the shorthand.2.The applicant Wife has been represented by Ms Sarah Wood (instructed by TWM Solicitors LLP). The respondent Husband has acted in person. The Crown Prosecution Service (CPS) who are Intervenors, have been represented by Ms Fiona Jackson. I am grateful to counsel for their assistance in this complicated matter.3.The parties started cohabiting in 1999; they were married in 2006. The Wife is now 50 and the Husband 53. They have 2 children, who are now 15 and 11.4.The Wife worked in secretarial roles and took a part time degree. She suffers from ankylosing spondylitis which restricts her ability to work. The Husband was a doctor. In 2011 he obtained a post in a hospital; in 2012 he was suspended from work; in 2018 he was convicted of fraud in relation to the representations he made to obtain that post and sentenced to 6 years imprisonment. He was released on licence in February 2021.5.He returned home, but on the 24th March 2021 the parties separated, and the Husband left the matrimonial home and has been living with his mother in Glasgow. The Wife petitioned for divorce on the 12th July 2021 and issued her Form A on the 26th July 2021. Decree nisi was pronounced on the 21st December 2021.6.There was a hearing before DJ Batey on the 21st June 2021, at which he ordered costs against the Husband for non-compliance, and First appointment before DJ Wright on the 20th April 2022, at which she joined the CPS as an Intervenor and gave directions for the final hearing. I conducted a PTR on the 7th October 2022, when I gave directions that Mrs AG, the Husband’s mother should be given notice and gave directions that she could file a statement and if she did so could give evidence.7.I heard evidence from the Wife, the Husband, and Michelle Jones, Crown Prosecutor, by CVP link. I have a well-prepared Bundle and a Supplemental Bundle.8.Crucial to this case are three properties:1.BR, the former matrimonial home, valued at £492,000 subject to a mortgage of £64,070, net £416,070. The Wife lives there with the children, and the mortgage is currently being paid from her Universal Credit.2.A property in London QG, owned by the Husband and his mother in shares which are disputed, either equally or 66.66% to the Mother and 33% to the Husband. The parties lived there at one time and the Husband subsequently received the rental income when it was let out, but he says that it was originally owned by his parents and himself as tenants in common, and when his father died his share passed to his mother on intestacy. It is valued at £1,230,000. It has been agreed that this can be sold, and the proceeds held against the decision in the confiscation enforcement proceedings.3.A Scottish property, which was formerly owned by the Husband. His share was transferred to his mother after the separation but before the Petition was issued. The wife contends that he has a half share in this property, having been the sole legal owner until August 2021. It is valued at £521,375.9.The only other significant asset is the Husband’s NHS pension, which has a CTV of £517,028. The scale of this was only obtained shortly before the hearing so no attempt has been made to obtain any report from a Pension Expert.10.The Wife seeks the transfer of the former matrimonial home to her. She also seeks a Lump Sum of £266,890 and for the Husband to pay the mortgage, £328,060 in all, and the costs orders made so far of £2,557.5 in all. She seeks 50 per cent of the Husband’s pension and nominal spousal maintenance until the youngest child ceases tertiary education.11.The Husband asks that both parties should be jointly responsible for paying the confiscation order and costs. The former matrimonial home should be sold, and the proceeds divided equally. He initially said that this should be when the youngest child ceased secondary education but altered this to say that it should be sold now, and the parties should rent. The pension should be divided in accordance with his years of service, approximately 9 out of 20 years being accrued during the marriage.12.The interest of the Crown Prosecution Service is that the Confiscation Order should be paid. The total due is now £411,983.60 including interest which is still running. Mr S has paid £4,750 towards the total, and there may be some issues as to monies received and paid to his mother which could have been used to reduce the debt. They accept that the Wife has a majority share of 68 per cent in the former matrimonial home as her parents contributed £140,000 to the purchase price when it was purchased in 2009 for £205,000. It is their position the Husband has a 50 per cent legal and beneficial interest in the London property as found by the Crown Court.13.The Husband’s mother Mrs AG is not a party. She did provide a statement, but after the time specified in my order. She did not attend and was not called as a witness. I did consider her statement notwithstanding, but I am cautious about relying on what she says in the absence of documentary evidence. What I cannot do is to make any findings binding on her, whether in these proceedings or in respect of the confiscation proceedings.14.The real issues were not immediately clear to me, partly because Mr G is not represented. It comes to this: if he owns 50 per cent of the London property, there is enough equity to pay the confiscation order as his share would be £509,164. If he only has a one third share, his share is worth £336,982, and not sufficient to pay the order. In fact, Mr G told me, and this seems to be confirmed in correspondence, that his mother agrees that the confiscation order should be paid from the sale of the London property even if some of this comes from her share. It does not leave any scope for a lump sum order. If I were to make an order which transfers the London property or has the effect of preventing it being applied to the confiscation order, there is a prospect of the Husband being ordered to return to prison.The Wife has not sought to make a claim directly against the Scottish property or have the transfer set aside but says that the Husband holds an interest in it which can be used to pay a lump sum if necessary.15.Accordingly, the major issues I have to consider can be summarised:(1)The ownership of the London property;(2)The ownership of the Scottish property;(3)The relationship between the properties and the confiscation order;(4)The s 25 exercise;(5)Whether there should be a sale of the former matrimonial home;(6)The distribution of the Husband’s pension.16.There are numerous points of dispute which have been considered during the course of the hearing. These include the treatment of a sum of about £33,000 which the Husband paid to his mother after he came out of prison, the various items, mostly importantly a car, which he passed to his mother.17.There is relatively little contentious law, but it was necessary to understand the working of the Proceeds of Crime Act 2002 (“POCA”). The confiscation order was made at hearing in May 2019. I have seen a transcript. The confiscation order was assessed in the full sum of £337,214.78. The court also considered the available assets to meet this debt. The Wife and the Husband’s mother Mrs AG were given the opportunity to make representations, but the Husband says the hearing was mostly concerned with the quantification and his mother did not attend. Ms Jackson and Ms Wood agree that confiscation and family law principles may involve consideration of different tests but relate to the same people and the same assets. Neither the Proceeds of Crime Act 2002 nor the Matrimonial Causes Act 1973 takes priority over each other. If a court dealing with financial remedy proceedings makes a property adjustment order after the confiscation order has been made but before enforcement proceedings have concluded in relation to the confiscation order, there will have to be an adjustment order by the Crown Court of the relevant amount available.18.It is not suggested that the Wife’s property is “tainted” by knowledge of the Husband’s criminal activities. In