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The exercise of discretion in big money cases

Date posted: 20 March 2019

Felicity Jones

HC v FW [2017] EWHC 3162 (fam)

 

This case concerned a Financial Remedy application following an 8 year marriage. Both parties had been married previously and the parties were in their 60s by the time of the Final Hearing. The case had a number of unusual aspects as the Wife was deemed to lack capacity to litigate as a result of neurological and neuropsychological impairments following complications in treatment for a benign brain tumour just before the parties separated. In addition to this, the Husband did not engage in the proceedings after the Financial Dispute Resolution Hearing. At the Final Hearing, the Court did not know his exact whereabouts and he had not instructed solicitors to represent him.

 

In his absence, the Court calculated the total assets to be £40 million, on the basis of the information disclosed earlier in the proceedings. The Wife accepted that the majority of these assets were acquired before the marriage. The Wife’s case was that she had both general reasonable needs and specific needs arising from her medical condition. The Court found that whilst the relevance of the origin of assets is likely to be greater in short marriages, the origin carries little, if any, weight, in a case where a claimant’s financial needs cannot be met without recourse to them.

 

The Court did not hear from the Husband, as he did not attend and did not instruct anyone to represent him. The Court was satisfied that he had had notice of the proceedings and had therefore chosen not to engage.

 

The Court used its wide discretion to award the Wife £15,251,098.00 to meet her needs and granted an injunction under section 37 of the Matrimonial Causes Act 1973 to prevent the Husband diminishing his worldwide assets.

 

The Judgment is interesting as the Wife’s needs were not relationship-generated and so the grant of an award to meet these needs is arguably a policy decision that the Husband should meet these needs, rather than the state. In this case, the Husband did not appear at Final Hearing or make any representations in relation to the Wife’s case and so this was not directly addressed in the Judgment.