Case No. Case-No-ZZ21D48328

the Court of Appeal held that it was not appropriate to make a financial order that would have reduced the assets available to satisfy the confiscation order, but the facts were different as the amount of confiscation ordered exceeded the value of all the assets and the whole could have been pursued through bankruptcy. In this case there were found to be sufficient assets comprising a 50 per cent share of the London property and any balance from the former matrimonial home. The Scottish property was not considered as it was not necessary.19.I take the view that neither act takes priority. The court must consider the order it makes on the principle in s25 of the Matrimonial Causes Act, including “all the circumstances of the case”. I am not bound by the decisions of the Crown Court, but I can take them into account.20.The Husband’s mother Mrs AG did not participate in the confiscation proceedings. Even if she was not served with notice, she is now out of time to appeal. However, in Enforcement proceedings, it would still be open to her to claim that she owns two thirds of the London property. Mr S said, and it was accepted, that Mrs AG has accepted that she would agree to the discharge of the full sum, even if it meant using part of the 50 per cent she claims. This however does not bind me, and the issue of ownership is live before me. Mrs AS would also have the right to make representations as to the ownership of the Scottish property by virtue of s 51(8) of POCA.21.If I were to make an order in respect of the London property that meant that the confiscation order could not be discharged from the Husband’s share of the properties the Crown Court took into account, the CPS could seek to proceed against the Scottish property. If the Husband does not make payment of the confiscation order, he is liable to be recalled to prison. What the result would actually be is a matter of speculation.22.I shall consider the ownership of the properties with this background. The former matrimonial home is plainly a matrimonial asset. It was accepted by the Husband in the confiscation proceedings that the Wife’s parents had contributed the substantial deposit as a gift when it was purchased. Plainly, it has been the matrimonial home since then.23.The London property was originally owned by the Husband and his parents as tenants in common. There is an issue as to what happened to the Father’s share when he died. In principle, it would pass on intestacy. This is a matter of Scottish intestacy law. The mother was the executor. The Husband says that it would have passed to her. Ms Wood raises a question as to the limit of the amount which passes automatically to a Wife on intestacy. In the Crown Court, the Schedule showed a 50 per cent interest in the London property with an equity of £420,000. Mr G says his counsel did not put forward his correction to the schedule and that it passed unchallenged. Mrs AS did not attend and did not make representations. Whatever happened, the findings of the Crown Court have not been appealed and are conclusive as far as they go. However, Mrs AG would be able to raise her interest in Enforcement proceedings.24.On the evidence before me, I have real doubts as to how it can be said that the Husband acquired a half share when it had previously been held as tenants in common. It is not sufficient to speculate as to Scottish inheritance law, and there is no will, or bequest. It is true that the parties to the marriage lived in the property as a home for a short time and that the husband thereafter kept the rental income. He says that he is now repaying his mother, and a sum of money was paid to her. The explanation is not self-evident. In my view it is as consistent with family members working together as a family as clear evidence of ownership. Whatever may be the result in Enforcement proceedings I cannot find that the Husband’s interest is more than 33.33 per cent, or £336,982, now completely subsumed by the confiscation debt. Further, there can be no doubt that even if taken as a matrimonial asset as a result of the parties having cohabited there, it came entirely from the Husband’s family. 25.The Sottish property was not considered in detail by the Crown Court. There is no doubt that the Husband was the legal owner until recently. He accepted that he did make some payments of the mortgage long ago before he moved to England, but he says that the reality is that he held it on behalf of his mother. I am inclined to the view that he did have a share in this property before he transferred it to his mother in August 2021. But there has been no application to set aside this transfer, and Mrs AG is not before me so I cannot make findings which are binding on her. I do not find that he is the beneficial owner of this property. However, I do consider that he is likely to receive further support from his mother in the future, and it may take the form of an interest in this property. If he held a half share it would be worth £260,687. In any event it is plainly a non-matrimonial asset.26.I am driven to the conclusion that the matrimonial pot is in fact limited to the former matrimonial home and the Husband’s pension. However, I have no doubt that the Husband and his mother are working together. She did not provide her statement in time, though she blames misunderstanding. However, she could have been called to give evidence, by remote video if appropriate and the Husband did not seek to call her. She has offered to utilise part of her share in the London property to ensure the Confiscation Order is paid, and I have little doubt that she will continue to support her son.27.Mr S says that he is not working as he is his mother’s full-time carer, but he also said that he wishes to relocate to the South East of England so as to be able to see his children. This is a matter to be determined elsewhere, but I am aware that there are difficulties in his relationship with them. He would be giving up free accommodation with his mother, where he has stayed since the summer of 2021. There is a history of joint ownership of family property, and as I have indicated the history of the Scottish property leads me to consider that her support is likely to continue. 28.The Wife’s situation is not easy. She is living in the family home, and raising two girls, effectively as a single parent. She needs a 3 bedroomed property and has had to live frugally on Universal Credit. She is fortunate that her parents have assisted her with her legal fees. Her health issues make obtaining employment more difficult, and this has to be balanced against the advantage of Universal Credit in paying the interest on the mortgage. Her pension has a CETV of about £3,000.29.The Husband is living with his mother at the moment. He says that it is not easy, with a conviction for fraud, to obtain employment, and I accept that this is a handicap, but I have seen no evidence of real attempts, and the reality is that he is being funded by his mother. He wishes to be nearer at hand to see his children, but there are issues about the effect that his conviction and absence has had on them, which is being considered in Children Act proceedings. 30.This is a case when it is helpful to look at the s25 criteria in a little detail. The welfare of the children is the first consideration. Without going into detail, it is obvious that they must have been affected by the change in the family circumstances. It is important that they are able to live as normal a life as possible.31.I have considered the parties respective resources and income potential. The Wife is limited in her ability to improve her situation. The Husband has difficulties but could make more effort and he has the advantage of family support.32.The Wife needs to maintain a home for the children and support them at an important stage in their life. Their standard of living is inevitably much less than it was and could have been. The Husband does not seem to have been particularly good at managing his money, but they must have had a comfortable life style. Both parties are in their early 50s. The Wife has a limiting health condition.33.Both made contributions to the family, some of which came from their respective families. I cannot ignore the substantial support that the Wife’s parents (and grandparents) made to the purchase of the former matrimonial home. They also contributed to property costs elsewhere over the years and to his costs of his appeal. I am not clear to what extent these payments were loans or gifts, but I take them into account on the basis that the Wife would wish to be able to repay at least some of them if she were able. It is right that the Husband’s parents also contributed in respect of the properties, particularly the London property.34.This is clearly a case in which the Husband’s conduct would be inequitable to disregard. As the Wife puts it in her statement“Mr SS’s suspension, conviction, imprisonment and being struck off has been catastrophic for myself, [and the children]. I feel completely duped and defrauded by him”The term of 6 years gives an idea of the seriousness of his offending. I have no difficulty is accepting this, and it is plainly a factor to which I give considerable weight.35.I also take into account the loss of benefits, particularly pension benefits to the Wife.36.I have no doubt that I should transfer the Husband’s interest in the former matrimonial home to the Wife. She and the children need security to the extent that this can provide it. The Husband’s position is unrealistic and untenable. The idea that she should have to rent with a limited and diminishing pool of money (which would disqualify her from most benefits) is out of the question.37.However, I do not accede to the request for a large lump sum payment. Firstly, on my findings, the money is not there. Despite what was said in the confiscation proceedings, I do not consider that the Husband has a half share in the London property, but only one third. In any event. Mrs AS has a realistic chance of establishing this in Enforcement proceedings. That she is willing to contribute to paying the Confiscation Order in any event shows family co-operation rather than the beneficial ownership. Secondly, in any event, the Confiscation Order has to be paid to avoid the prospect of the husband having to return to prison if the Confiscation Order not being met. If I were to make the level of order the Wife seeks, there would be a risk of this unless Mrs AG contributed deeply from her unchallenged share. However critical I am of the Husband’s conduct, I do not think that it would be right to place him at this risk, and it would be giving the Family Court’s orders priority if I were to transfer his share in the London property to the Wife. I do not give POCA priority, but in the circumstances of this case, I recognise it and take it into account.38.This leaves the mortgage debt, and the Wife’s costs which even if they have been met by her parents, are a significant liability. I have little information about the Husband’s pension save for the CTV of £517,028. Ms Wood tells me that he will be able to draw down £61,588 from his pension in seven years’ time. This would be sufficient to pay off the mortgage on the family home.39.Ms Wood argued before me that as there was no time to obtain a pension report, all she could do was to ask for an equal division on the CETV. I have not accepted one of her major submissions, but I have much sympathy for her client’s position. I think that is likely that the Husband will continue to be supported by his mother. I think that he could and should make more efforts to obtain employment, unless he is content to care for his mother and be supported by her. I think that as between the Husband and his mother, there is a strong likelihood that he will have the benefit of the Scottish property.40.I therefore consider that it would be appropriate to divide the pension unequally so as to give the Wife the prospect of at least substantially paying off the mortgage when she reaches the age of 55, and without giving up the benefits of the pension. This point was not fully argued before me, so I indicate that I am inclined to direct that the Husband’s pension should be shared so as to give the Wife two thirds and the Husband one third. This will give her the opportunity to take a lump sum to discharge the mortgage and some security for her retirement. I expect the Husband to have support from his own mother. I would not take into account her own small pension. I do not have the exact figure that I would have from a pension report, but I do not think that adjourning to obtain a report from a pension expert to undertake a more accurate calculation would be justified. I will however hear argument on this point.41.This is not a case where I can make a real attempt to justify my conclusion by percentage. If I ignore the Confiscation Order, the Husband keeps £336,982 and the Wife £416,070, (55%) and the pension is divided £172,377 to £344,650 (66%). However, once the Confiscation Order is considered this is misleading. 42.I will consider the issue of costs after this Judgment. Plainly, the Husband must pay the costs already ordered. [The Husband was ordered to pay some relatively small costs of litigation and transfer].