[2025] EWHC 2436 (Fam)

Fecha: 30-Abr-2025

Conclusions

The Draft Order

50.

What I propose to do is take the consent order as it is. I approve it in terms, only subject to the changes which I am about to make.

51.

The first issue I have to deal with appears in paragraph 19 and it is the loan from TP. My direction is that the loan from TP shall mean the loans owed by the applicant to TP in the sum of £300,000 plus interest. But there is also a further £5,000 which should not include any interest. This is provided that within 28 days of today TP executes a statutory declaration which is then disclosed to the husband confirming that she did lend that additional £5,000 to the wife in this case.

52.

The next issue is in respect of the instruction of agents who are going to hold money in escrow and also dealing with the question of conveyancing. This shall be the solicitors instructed on the sale of the family home (I assume that they will be the solicitors for the sale of the car parking space but if not it shall be the solicitors for the family home sale). Paragraph 25 will now read:

"The parties hereby irrevocably instruct, subject only to further order of the court, that the escrow agent and the conveyancing solicitor who is instructed on the sale of the family home and/or car parking spaces to distribute the proceeds of sale in accordance with the terms of this order directly to the parties who have been ordered to receive those sums."

In addition to that, I direct that if there is to be any such application for variation by an order of the court then that application should be reserved to me if available. Second, it should be on terms that the legal representatives of the parties shall be notified of that application and shall be at liberty to make representations in those proceedings. Just for clarity's sake, it is not an instruction that can be varied by just the mutual written agreement of the parties; it is going to require the assistance of the court.

53.

The next matter which I deal with is in respect of paragraph 29.2. 29.2 is on the basis that what the parties have now agreed and I agree to its recital as an order within the order itself, it now says:

"Each party agrees not to bring any case against the other as a result of these proceedings other than in respect of the order itself. Further, they will keep confidential all information used and received before and during these proceedings (including during the voluntary disclosure process) about the other party's financial affairs and not to disclose any such information to a third party other than a professional advisor acting in these proceedings or the implementation of this order."

54.

The fourth matter is in respect of the undertaking to set up a family fund. This is paragraph 30(b) and the second part which (i) is agreed that that will be included. In respect of (g) which is for an allowance for the applicant's holidays with the children in the sum of up to either £20,000 or £40,000 per annum, that should also go in, that was part of the agreement.

55.

I now come to paragraph 32(g) which is an allowance which is made for the applicant's holidays with the children. What I am going to direct there is a reflection of the current agreement that already exists between the parties and also the Xydhias agreement. (g) will say:

"An allowance for the applicant's holidays with the children in the sum of up to £40,000 per annum, this to be considered a joint expense."

Then I add this:

"However, in the event that the property FMH was to sell for a gross sale price of £17.5 million or less, the figure shall be varied downwards to £20,000 per annum."

56.

The next item I am asked to deal with is in paragraph 34(c) which is where the husband is required to reimburse various items which will have been incurred during the course of the existence of the family fund. I agree with Mr Yates KC that this is in the nature of a capital provision and therefore not susceptible to maintenance variation. Even though it does refer back to “maintenance sums”, it does seem to me it is more in the nature of the capital provision. But in any event it seems that in accordance with the continuity of what has been agreed in the Xydhias agreement that provision ought to stand.

57.

The next matter is the undertaking in respect of the children's family's costs which is dealt with at paragraph 40. In 40.2 I think it is now agreed that the reasonable paid expenses, will have inserted, "in line with the costs currently incurred." There is then a figure which is:

"Following a trigger date a holiday allowance of £20,000 per annum per child until the later of each child attaining the age of 18 or the conclusion of each child's secondary education."

I am going to add after that:

"In the event of FMH selling for a gross sale price of less than £17.5 million, that figure will be varied downwards to £10,000."

58.

The next matter is in respect of the medical insurance which the husband has generously agreed to cover. Under paragraph 42 my ruling is that the wording will now provide:

"The respondent agrees and undertakes to take out on behalf of the applicant medical insurance cover including paying promptly any premiums due with Bupa Global International Elite or its equivalent (which shall include Russia) or any successor company to Bupa for the applicant until the first of either party's death or further order in the meantime. This is currently estimated at £13,032 per annum in order to secure the appropriate insurance."

The further order provision I have inserted on the basis that the husband shall be at liberty to apply for the extinguishing of this liability if the former matrimonial home was to sell for less than £17.5 million.

"(b)

The respondent shall provide the applicant with written evidence as soon as possible and in any event within one month of the date of this order or final order of divorce if later that this medical insurance cover is in place and shall provide the applicant with written evidence within 14 days of the date of renewal each year that the medical insurance cover remains in place."

59.

The next matter which I am asked to deal with is in respect of the order for sale of the family home in paragraph 44(b)(vii). To give its context, paragraph 44 reads:

"The family home shall be sold forthwith and the open market for sale in accordance with the order of Deputy High Court Judge Richard Todd KC dated 26 November 2024 and the following subsequent conditions shall apply."

Within (b), "the process of sale shall be applied as follows." and then within (vii):

"Repayment of any future, urgent and necessary cost relating to the family home, which:

(a)

are agreed in writing between the parties;

(b)

are not included in schedule 2; or

(c)

which have not been paid from the family fund; and which

(d)

either party has had to discharge from their own resources.

The repayments shall be paid to the party who made the payment."

60.

The final matter is in respect of the child periodical payments. What is sought on behalf of the husband is that instead of there being £25,000 net per annum, there should be a CMS assessment. I am told and Mr Brazil has not contradicted this, that EN for jurisdictional reasons would not qualify for a CMS assessment. However, I am not content to leave the matter there. What the order will say in paragraph 48 is:

"Payments shall be at the rate of £25,000 per annum per child but that figure shall be varied downwards in the event that FMH is to sell for a gross sale price of less than £17.5 million in which case the figure shall be £12,500 per annum per child."

61.

I have considered whether or not there should be a sliding scale in respect of the price for FMH. I have come to the conclusion that what is already a necessarily complex order, would be over complicated by this further inclusion. I am fortified in that view by the fact that the sale price is almost certainly going to be driven by a third party, i.e. the purchaser, rather than the parties themselves and so the opportunity to manipulate the price to above or below £17.5 million is very much reduced. If there is any attempt to manipulate that price then that would merit an application back to court and such manipulation is bound to be visited with penal costs orders.

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