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In the Grand Court of the Cayman Islands — Family Division

[2021] CIGC (FAM) 5

Cause No. FAM 0066/2014

Between

- v -

BJ - Judgment

Before
Richards J

Judgment delivered 2021-03-05

```html IN THE GRAND COURT OF THE CAYMAN ISLANDS FAMILY DIVISION CAUSE NO. FAM 66 OF 2014 BETWEEN: DJ PETITIONER AND: BJ RESPONDENT Appearances: Mr. Nicholas Yates Q.C. instructed by Mr. Andrew Woodcock of Hampson & Co for the Petitioner Mr. Frank Feehan Q.C. instructed by Guy Dillway- Parry of Priestleys for the Respondent Before: The Hon. Justice Cheryll Richards Q.C. Hearing: 28th October 2020 Draft Judgment Circulated: 22nd February 2021 HEADNOTE Family Law - Recalculation of assets, application of the three principles of Need, Compensation and Sharing JUDGMENT Judgment on Recalculation of Joint Assets: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.03.2021 Page 1 of 23 ```
```html 1. This matter was remitted by the Cayman Islands Court of Appeal (“CICA”) with an 2. Order dated 3rd September 2020 in terms as follows: 3. i) “The Respondent/Appellant’s appeal succeeds to the extent that joint assets, as 4. defined by the Pre-Nuptial Agreement, available for distribution should be re- 5. calculated by deducting any increase in them from July 2017 to June 2019 and 6. that the payment to the Petitioner/Respondent as per the Order of 16 August 7. 2019 should be reduced accordingly (“Recalculation”). 8. 9. ii) ... to undertake the Recalculation and to consider whether, in light of the 10. Recalculation the strands of need, compensation and sharing are adequately 11. provided for as far as the Petitioner/Respondent is concerned. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 2. For the purpose of continuing to maintain the anonymity of the parties, I shall refer to 29. DJ, tr/ResponDenha BJ; ine 30. the Petitioner as the wife and BJ the Respondent/Appellant as the 31. husband. 32. There are thus two issues before the Court. Firstly a factual exercise of recalculating the 33. assets using the date July 2017 rather than as at the date of the Grand Court hearing in June 2019 and secondly to apply the guideline principles in considering whether the Judgment on Recalculation of Joint Assets: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.03.2021 Page 2 of 23 ```
```markdown strands of need, compensation and sharing are adequately met with respect to the wife by the figure arrived at on recalculation. The Order of the 16th August 2019 referenced above in paragraph 1 followed on from a final ancillary hearing in the Grand Court in June 2019 and a judgment of the 5th August 2019. The sum identified for sharing as per the Order of the 16th August 2019 was calculated to be $1,816,851.00 less $309,270.00 being assets held in the husband’s Firm’s capital account and a total arrived at of $1,507,581.00, one half of which would be $753,790.50 less $5,911.51, the small profit earned by the wife’s business for a total of $747,878.99. The assets of the husband were previously calculated by reference to his Affidavit of 22nd March 2019. The schedule of assets and liabilities attached to that Affidavit showed assets and liabilities as at 10th July 2017 and as at the 23rd November 2018. The assets listed for 2017 totaled $2,242,364.85 and were as follows: 2017 ASSET SCHEDULE | # | Item | Description | Value as at 10th July 2017 $ | |---|------|-------------|------------------------------| | 1-14 | Bank Accounts | | 105,707.25 | | 15-17 | Brokerage Accounts | | 957.87 | | 18-27 | Investment shares | | 387,312.98 | | 28-32 | Private investment | | 98,870.21 | | 33 | Personal Loan | | 23,492.18 | | 34-36 | Motor cars | 1993 Jeep Renegade, 1997 Honda CRV, 2011 Jeep Grand Wagoner | 53,000.00 | | 37 | Boat | 14" Yellow Panga with a 30 horsepower motor and trailer | 2,500.00 | | 38 | Land | Undeveloped Cayman land in GT – Clipper Bay | 264,040.00 | | 39 | Land | Undeveloped Cayman land in GT | 115,000.00 | | 40 | House | Walkers Road, GT | 230,000.00 | | 41 | Apartment | Careenage, Edgewater Way, Prospect | 365,000.00 | | 42 | Social Security Benefits | | | | 43 | Workers Compensation | | | | 44 | Life Insurance Policy | | | | 45 | Insurance Policy | Americo – Life Insurance Policy | 22,561.22 | | 46 | Partnership Interest | | 418,200.00 | | 47 | Current Acct. | | * | Judgment on Recalculation of Joint Assets: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.03.2021 Page 3 of 23 ```
```html 48 Pension Cayman Islands Chamber of 136，473.17 Commerce Pension Plan Total $2，242，364.85 # PRELIMINARY ISSUES

There was disagreement between the parties not only as to the factual position but as to the approach which is to be taken to the recalculation exercise.

Counsel on behalf of the wife submitted that in order for the Court to carry out the recalculation exercise, the wife should have been afforded the opportunity to file additional evidence as to the level of the husband's assets as at mid-2017 as well as to her current assets, liabilities and needs. There was thus initial inquiry as to whether the hearing date was to be treated as a case management date, with directions to be given for the filing of evidence.

Counsel on behalf of the husband submitted that it would be wholly disproportionate to allow the litigation to continue further and to incur further costs, that it would be contrary to the principle of finality for the wife to now be permitted to reopen the litigation and that this Court should be wary of any attempt to widen the evidential scope of the exercise.

This latter submission is one which is accepted. The CICA gave clear and specific directions which did not include requiring and considering fresh evidence. ## APPROACH TO 2017 SCHEDULE

The Court was invited by Counsel on behalf of the wife to view the 2017 schedule with caution and to note that as it was never an issue in the case that sharing should cease in 2017, the schedule attached to the 22nd March 2019 Affidavit was never tested in cross examination during the Grand Court hearing in June 2019 and the accuracy of the figures thereupon. Counsel the accuracy of the figures thereupon. Counsel the accuracy of the figures thereupon. Counsel the accuracy of the figures thereupon. Counsel the accuracy of the figures thereupon. Counsel the accuracy of the figures thereupon. Counsel the accuracy of the figures thereupon. Counsel the accuracy of the figures thereupon. Counsel the accuracy of the figures thereupon. Counsel the accuracy of the figures thereupon. Counsel the accuracy of the figures thereupon. Counsel the accuracy of the figures thereupon. Counsel the accuracy of the figures thereupon. Counsel the accuracy of the figures thereupon. 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```html 11. Counsel for the husband accepted that there had been an initial error in the copying of the schedule for the hearing bundle but explained that this had been remedied before the hearing was completed. He submitted that there was no serious challenge or disagreement to the schedule at trial and by way of substantive response made the following specific points: i) The Affidavit referencing the schedule was provided to the CICA by Counsel for the wife to assist in understanding the asset base as at 2016 and onwards. There was no indication of concern as to its accuracy at the time it was provided. 12. The Order of Williams J. in 2018 included the statement that “this is not a case in which there has been a failure of disclosure on the part of the husband”. 13. The schedule was supported by background documentation which while not included in the final hearing bundle had been available to those acting for the wife to check this schedule against that documentation and to make such arguments as they wished to make and none were made. 14. The schedule had not been properly copied for the trial bundle. Once this error was realised, a full copy of the fold out page showing the full schedule was served within a week and that they had the opportunity to check this against the documentation which they already had. 15. The factual dispute continued after the recalculation hearing. Following that hearing Counsel for the wife provided to the Court a copy of page 354, the schedule of assets referred to in the said Affidavit as it originally appeared in the June 2019 hearing bundle. 16. Onember 2020, the 2nd Novc Counsel the 17. 2020, the 2nd Novc Counsel the 18. 2020, the 2nd Novc Counsel the 19. 2020, the 2nd Novc Counsel the 20. 2020, the 2nd Novc Counsel the 21. 2020, the 2nd Novc Counsel the 22. 2020, the 2nd Novc Counsel the 23. 2020, the 2nd Novc Counsel the 24. 2020, the 2nd Novc Counsel the 25. 2020, the 2nd Novc Counsel the 26. 2020, the 2nd Novc Counsel the 27. 2020, the 2nd Novc Counsel the 28. 2020, the 2nd Novc Counsel the 29. 2020, the 2nd Novc Counsel the 30. 2020, the 2nd Novc Counsel the 31. 2020, the 2nd Novc Counsel the 32. 2020, the 2nd Novc Counsel the ```
```html 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 “i. Although the printed trial bundle mistakenly contained a poor copy of the schedule containing the 2017 asset figures (which was attached to Mr. Woodcock’s email despite not being requested by the Court), that mistake was detected before trial and a full copy of the schedule was provided prior to the hearing (see attached email to Mr. Woodcock dated 3 June 2019). Further, this exhibit was also attached to the Respondent’s Affirmation dated 4 December 2018 which was also in the trial bundle (see attached email dated 3 June (2020) (sic) which confirms); ii. It is inaccurate to suggest (or infer) that the Petitioner first received this schedule at or shortly before the trial. In fact it was first sent to the Petitioner on 1 September 2017, then exhibited to the Respondent’s 4 December 2018 Affirmation and then finally exhibited to the Respondents 22 March 2020 Affirmation (albeit in the latter case with an administrative error corrected before the hearing). Further, the 2017 figures were fully tested in correspondence at the time that the schedule of those figures was originally served. A request for further and better particulars of the schedule was sent by W’s then solicitors (McGrath Tonner) on 11 October (2020)(sic) and responded to on 12 January (2020)(sic) (exhibited to 4 December Affirmation);” 14. On the 3rd November 2020, Counsel on behalf of the wife responded to indicate in summary their position as to the unreliability of the schedule by reference to certain items on the schedule and that they had come on record shortly before the trial and had not had the papers from the previous attorneys. 15. On 4th November 2020 Counsel on behalf of the husband responded to indicate in summary that the schedule had been available well in advance and during the Grand Court hearing in June 2019, was the subject of inquiry and that what was sought to be raised now as to debts was not raised at the trial. 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```html 1 To correct yet further potentially misleading statements in most recent email: 2 The Schedule: 1) was available to the Petitioner on the court file (exhibited to two 3 affidavits)；2) was in fact in the hearing bundle at trial；and 3) had been provided 4 to the Petitioner on no less than three occasions the first being in September 2017 5 and indeed was the subject of a request for further and better particulars which was 6 responded to； 7 It has never previously been asserted that Hampsons does not have the relevant case 8 papers；it is not accepted that Priestleys were aware that KSG had exercised a lien 9 over the case papers；indeed no request has been made of Priestleys for papers at 10 any stage in proceedings； 11 It was entirely the Petitioner's decision to change attorneys at a very late stage." 12 13 14 16. Having considered all the circumstances highlighted，it is clear that this 2017 schedule 15 formed a part of the material filed well in advance of the June 2019 hearing. No 16 disclosure failures on the part of the husband were identified by the Court in hearings 17 prior to June 2019. The copying error made in respect of the hearing bundle appears to 18 have been swiftly remedied and can only have been of very limited effect given the 19 availability of the full copy at an earlier time. 20 21. While I accept that there was limited focus on the 2017 aspect of the schedule，there is 22 nothing to suggest or demonstrate that it is so unreliable that it ought not to be used for 23 the purpose of recalculation or that it would be unfair to do so. 24 25 2017 CALCULATION 26 18. On the day of the hearing，the disagreement on the factual aspect of the calculation was 27 limited to two narrow areas shown in bold below，the more impactful of the two being 28 the value of the Clipper Bay Land in 2017，it having been purchased by the parties in 29 2017，the asset of the parties，being the asset of the parties，being the asset of the parties， 30 2119.00 outstanding mortgage，being the asset of the parties，being the asset of the parties， 31 2119.00 outstanding mortgage，being the asset of the parties，being the asset of the parties， 32 19. The table below sets out the positions of both parties at the start and end of the hearing Judgment on Recalculation of Joint Assets：FAM 0066/2014：DJ v BJ. Coram：Richards J. Date：05.03.2021 Page 7 of 23 ```
```html Husband'sCalculation $ Wife'sCalculation $ Value of Husband's assets as at 10th July 20171 2，242，365 2，242，365 Deduct Assets of Firm 418，200 418，200 Balance 1，824，165 1，824，165 Deduct Non-Firm Liabilities as per PNA S.3(f) ： BOB credit card # 1 11，570 0 BOB credit card # 2 2，538 0 CS Overseas Credit card 155 0 Bank loan secured against Land in Clipper Bay 212，119 0 Apartment Loan Careenage， Prospect 148，631 0 Total deduction 375，013 0 Balance after deduction 1，449，152 1，824，165 Deduct Assets listed by H.at Appendix 1 of PNA17 items and amounts which are all agreed by both H and W 1，008，471 1，008，471 Balance after two sets of deductions 440，681 815，694 H's makes concessions resulting in additions ofsome of deductions made above as follows： Ignore loan on Careenage Property 148，631 BOB credit card # 1 11，570 BOB credit card # 2 2，538 Total additions to be made 162，739 Revised asset value for H. 603，420 One half 301710 407，847 Start：Wife-Add back difference in value of the ClipperBay land 420，016 less 264，040 145，976 End：By agreement-accepting that the value of ClipperBay Land increased by 93，000 between purchase in2014 and 2017 46，500 46，500 348，210 454，347 VALUE OF CLIPPER BAY LAND IN 2017 Ultineement was 2 4 5 1 As per Affidavit of H of 22nd March 2019 Judgment on Recalculation of Joint Assets：FAM 0066/2014：DJ v BJ. Coram：Richards J.Date：05.03.2021 Page 8 of 23 ```
```html 1 21. Agreement was reached in the following way. Counsel on behalf of the wife initially 2 noted that the valuation in 2019 put forward by the wife for this land was $420， 016.00. 3 The husband had contended at the June 2019 hearing that there was a mortgage against 4 the property of $196， 968.00 so that the asset value was less than the amount claimed by 5 the wife. The Court in its August 2019 judgment following the June 2019 hearing 6 reduced the asset figure by the value of the outstanding loan on the property 7 ($196， 968.00). Counsel argued that the figure in the Judgment is already net of that loan 8 and should not be further reduced which is what the husband is now seeking to do. 9 Counsel submitted that in order to arrive at the correct value the difference between 10 the two figures of $420， 016.00 (which is the figure in paragraph 229 of the judgment) and 11 the one that has been used in the 2017 schedule which is $264， 040.00 had to be added 12 back. 13 14 22. By his calculation the sum to be added back was then $145， 976.00 as a result of which 15 the one half share to the wife would be $480， 835.00. He pointed to the fact as illustrative 16 of the unreliability of the schedule and the need for caution, that the value of the Clipper 17 Bay land， of $264， 040.00 was shown as the same for 2018， as for 2017. Counsel argued 18 that the figure of $264， 040.00 in the schedule is net of the mortgage， not gross and that 19 either it is being done twice or these figures are simply wrong because the property could 20 not have increased in value from the 23rd November 2018 to February 2019 from 21 $264， 040.00 to $420， 000.00 despite the argument from the other side as to increases in 22 land values in the Cayman Islands. 23 24. Counsel for the husband proposed the following： Judgment on Recalculation of Joint Assets：FAM 0066/2014：DJ v BJ. Coram：Richards J. Date：05.03.2021 Page 9 of 23 ```
``` At 2019, the wife agreed a valuation of $420,000 except that, of course, there was then to be the deduction of the mortgage, which Your Ladyship ruled, should be the case. But taking $420,000 as the price of the property in 2019 as a sensible way of dealing with this and a proportionate way of dealing with this, we propose that if there's any doubt as to any increase in value between 2014 and 2017, the best thing to do is to take a straight line increase graph from $264,000 to $420,000. That implies an addition of about $31,000 a year between 2014 and 2019 and that would add $93,000 to the figure which is on the blue and white schedule. And rather than create enormous costs by adjourning this case, yet again, and getting more expert evidence, we say that the outcome of that would be that the wife would be paid on our figures, an extra $46,500, which gets her less than $30,000 short of the figure, if we are right about ordinary deductions, which I'm certain we are right about deductions of mortgages and other liabilities. That gets us less than $30,000 short of the green figure at the bottom of the per 'H' column in Mr. Yates' schedule.

Counsel on behalf of the wife took instructions and advised agreement with this course. He stated: "We are very content to agree that very pragmatic way forward suggested by My Learned Friend. We are grateful to him for that, it seems to be the right way through this in the circumstances. So I calculate the payment that the husband contends for is $348,210.00 on that basis, and the one we now contend for is $454,347.00. The only difference between us now being whether the Scotiabank loan associated with Clipper Bay land should be deducted or not." ```
APPLICATION OF THE PRE-NUPTIAL AGREEMENT

It was therefore agreed that the value of the Clipper Bay land in 2017 was $357,000.00 from which the husband says should be deducted the outstanding mortgage amount which was then $212,119.00.

Counsel for the wife submits that it should not be deducted because of paragraph 3(f) of the Pre-nuptial Agreement of 16th February 2012 ("the PNA"). This provides in part that: "All debts incurred before and during the marriage shall be the separate financial obligation of the party who incurred the debt and the other party shall not be responsible in any way towards that obligation."

By virtue of this provision the wife submits that the entirety of the sum of $375,000.00 including the mortgage for the Clipper Bay land should not be deducted from the total asset figure. This means, said Counsel for the wife, that the mortgage debt should be ignored, that what the husband is trying to do is to take the debt off twice but that it should not be removed at all because it is a debt and the PNA says that it should be ignored. Counsel also stated that this means that the wife should not be paying for half of that debt, which is what she will be doing if it is included on the schedule.

Counsel for the husband submitted that the plain meaning of the PNA is that the borrower of the funds is responsible to repay the same and that where the husband borrowed money against property it is for him to repay it and not the wife. It cannot possibly mean that in looking at a schedule of assets, the liabilities should be ignored. Counsel stated that it would be wholly contrary to all principle not to deduct liabilities from assets to reach a net position for distribution.

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```html 1 husband is that the husband in good faith has made these concessions and that the reason 2 for adding back the value of the Careenage property is that this is a pre-marital liability2. 3 This entire asset is excluded as it is ring-fenced and is also a liability. The interest in the 4 Clipper Bay property is not ring-fenced but is to be valued net of the mortgage. 5 32. In my view paragraph 3(f) of the PNA is to be given its plain and ordinary meaning. The 7 responsibility to repay debts incurred rests with the person who incurred the debt. This 8 has nothing to do with net asset values. Indeed this was the approach taken in the August 9 judgment. 10 11 33. Approaching the matter in this way， the mortgage liability is to be deducted to arrive at 12 a net asset value. Consequently in my view， the fifty percent asset sharing calculation to 13 which the wife would be entitled as per the PNA using the date of mid-2017 is 14 15 THE SUBMISSIONS-NEED， COMPENSATION， SHARING 16 34. The broad submission made on behalf of the wife is that from the draft judgment of the 17 CICA， the Appellate Court was of the clear view that the substantive award should be 18 reduced by a minimal amount of $23， 301.94 to the sum of $724， 577.05 and that this 19 amount should not change in the course of the recalculation exercise in order for justice 20 to be done to the three strands of need， compensation and sharing.3 21 22 35. The husband's primary submission is that the amount arrived at in calculating one-half 23 share of the 2017 asset base of over $301， 787.43 meets all the elements of need， 24 compensation and sharing and importantly that this amount accords with the reasoning 25 of this Court as set out in paragraph 247 of its August 2019 judgment. Counsel submitted 26 further that it is misleading to say that the CICA came to a clear view that the substantive 27 award should be reduced by only $23， 301.94. This was an argument which was rejected 28 by the CICA which concluded at paragraph 94 of its judgment that it was not in a position 29 to re-agreement ar Recalculation 30 ， 577.05， the 2 Paragraph 8 (5) 3 Paragraph 20 of W's submissions Judgment on Recalculation of Joint Assets：FAM 0066/2014：DJ v BJ. Coram：Richards J. Date：05.03.2021 Page 12 of 23 ```
```html 1 Counsel argued that the submission that this Court should not decrease the award is an invitation not to recalculate the available assets as ordered by the CICA. 3 NEED 4 36. Under the heading of ‘Need’, Counsel for the wife submitted that need is a really serious issue in this case and also justifies an enhanced provision. Counsel argued that any reduction below the initial sum arrived at by the CICA as stated above would not provide adequately for the needs of the wife on the facts of this case and in light of her ongoing contribution to the child of the marriage, J and his welfare. Any change of residence of J would leave the wife with very few assets. 11 37. It was argued that the wife should be permitted to provide further evidence as to her needs or that in the carrying out of the discretionary exercise, the Court should err on the side of caution and in her favour. 15 38. Counsel asked that the Court consider the following matters. 17 i) The wife is 48 years old. 19 ii) She has very limited ability in the future to generate assets because of the care that she gives to J. Unlike the husband she will not have the ability to amass great wealth in the future. That ability has been severely hampered for her. This is in contrast to the husband who has a huge surplus every year, of income over expenditure and the ability to amass great wealth in the future. Therefore it is likely that the amount that the wife receives is all that she will have for the rest of her life and therefore her needs dictate that she retains the type of figure initially mentioned by the CICA. 27 iii) The wife is not going to benefit materially or at all from the contribution that she is going to the ph she is going to the property she is going to live with J. In any case, she will be mabproperty in with J. In any although shtributing whic case, 32 iv) Should J cease living in the property for any number of reasons, then the amount she receives will be all the wife will have to then go on the road to independent living. Judgment on Recalculation of Joint Assets: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.03.2021 Page 13 of 23 ```
```html 1 2 39. Counsel drew the Court's attention to the judgment of the Court in the case of Brack v. 3 Brack* and highlighted the following paragraph therein: 4 5 “In my judgment, in the ordinary course of events, where there is a valid prenuptial 6 agreement, the terms of which amount to the wife having contracted out of a division 7 of the assets based on sharing, a court is likely to regard fairness as demanding that 8 she receives a settlement that is limited to that which provides for her needs. But 9 whilst such an outcome may be considered to be more likely than not, that does not 10 prescribe the outcome in every case. Even where there is an effective prenuptial 11 agreement, the court remains under an obligation to take into account all the factors 12 found in s25(2) MCA 1973, together with a proper consideration of all the 13 circumstances, the first consideration being the welfare of any children. Such an 14 approach may, albeit unusually, lead the court in its search for a fair outcome, to 15 make an order which, contrary to the terms of an agreement, provides a settlement 16 for the wife in excess of her needs. It should also be recognised that even in a case 17 where the court considers a needs-based approach to be fair, the court will as in KA 18 v MA, retain a degree of latitude when it comes to deciding on the level of generosity 19 or frugality which should appropriately be brought to the assessment of those 20 needs.” 21 22 40. Counsel also made reference to the case of FF v. KF*, in support of the submission that 23 as part of the discretionary exercise, the “needs” principle is open to a broad construction 24 depending on the context of each case. The Court stated therein: 25 26 27 “The main drivers in the discretionary exercise are the scale of the payer's wealth, 28 the length of the marriage, the applicants' age and health and the standard of living, 29 although the latter factors cannot be allowed to dominate the exercise.” 30 41. Counsel for the husband argued in response that the wife's needs would be met by the 31 recalculated sum. This, on the basis that her needs ought to be seen in the context of the 32 fact that the husband will bear the greater financial burden of J's care. As a result of this, 33 the wife will have funds to cover all of his educational and therapeutic needs including 34 a full time nanny and home care. She has been able to resume her career and her 35 companies have stential for gret benefit of 36 provided for J's all 37 for 45% contihe mortgahave furnished the utility 38 that for J, including a full home going. She will have a full home going. She will have all the dth 39 save ribution to the ing. She will have all the dth 40 costs will but 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 542 543 544 545 546 547 548 549 550 551 552 553 554 555 556 557 558 559 560 561 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576 577 578 579 580 581 582 583 584 585 586 587 588 589 590 591 592 593 594 595 596 597 598 599 600 601 602 603 604 605 606 607 608 609 610 611 612 613 614 615 616 617 618 619 620 621 622 623 624 625 626 627 628 629 630 631 632 633 634 635 636 637 638 639 640 641 642 643 644 645 646 647 648 649 650 651 652 653 654 655 656 657 658 659 660 661 662 663 664 665 666 667 668 669 670 671 672 673 674 675 676 677 678 679 680 681 682 683 684 685 686 687 688 689 690 691 692 693 694 695 <
```html 1 bills paid. In addition she will retain her own assets assessed at $287，870.00 and a further 2 sum of $301，787 for a total of $589，657.00. All she has to find is money for herself. She 3 is a successful business woman in her own right and earns close to $80，000.00 per year. 4 5 42. Counsel submitted that there is no possible sense in which the wife is going to be 6 destitute or at risk and no health concerns with J such as to suggest that he is not going 7 to outlive his parents and thus that this provision by the husband which indirectly 8 benefits the wife will not be on a long term basis. 9 COMPENSATION 10 43. With respect to compensation， Counsel on behalf of the wife submitted that any further 11 reduction from the figure arrived at by the CICA would not be compliant with the overall 12 objective of fairness and would not reflect a proper amount for compensation in the 13 context of this case. 14 15 44. It is urged that the wife has suffered relationship-generated disadvantage given the long 16 term care which she needs to provide for J and the impact this has had on her ability to 17 generate an income. It was urged that if it is the case that the sharing element is dealt 18 with by the PNA then compensation must be in addition to any sharing amount. 19 20 45. Counsel placed reliance on the following passage from the judgment of the Court in the 21 case of McTaggart v. McTaggart 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 542 543 544 545 546 547 548 549 550 551 552 553 554 555 556 557 558 559 560 561 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576 577 578 579 580 581 582 583 584 585 586 587 588 589 590 591 592 593 594 595 596 597 598 599 600 601 602 603 604 605 606 607 608 609 610 611 612 613 614 615 616 617 618 619 620 621 622 623 624 625 626 627 628 629 630 631 632 633 634 635 636 637 638 639 640 641 642 643 644 645 646 647 648 649 650 651 652 653 654 655 656 657 658 659 660 661 662 663 664 665 666 667 668 669 670 671 672 673 674 675 676 677 678 679 680 681 682 683 684 685 686 687 688 689 690 691 692 693 694 695 696 697 698 699 700 701 702 703 704 705 706 707 708 709 710 711 712 713 714 715 716 717 718 719 720 721 722 723 724 725 726 727 728 729 730 731 732 733 734 735 736 737 738 739 740 741 742 743 744</
```html 1 may still suffer a disproportionate financial loss on the breakdown of a 2 marriage because of their traditional role as home-maker and child-carer. 3 When this is so, fairness requires that this feature should be taken into 4 account by the court when exercising its statutory powers. The Court of 5 Appeal decision in SRJ v. DWJ (Financial Provision) [1999] 2 FLR 176, 6 182， is an example where this was recognised expressly. 7 8 Compensation and financial needs often overlap in practice， so double- 9 counting has to be avoided. But they are distinct concepts， and they are far 10 from coterminous. A claimant wife may be able to earn her own living but 11 she may still be entitled to a measure of compensation." 12 Baroness Hale said this (ibid.， at para. 140)： 13 14 "A second rationale， which is closely related to need， is compensation for 15 relationship-generated disadvantage. Indeed， some consider that provision 16 for need is compensation for relationship-generated disadvantage. But the 17 economic disadvantage generated by the relationship may go beyond need， 18 however generously interpreted. The best example is a wife， like Mrs 19 McFarlane， who has given up what would very probably have been a 20 lucrative and successful career. If the other party， who has been the 21 beneficiary of the choices made during the marriage， is a high earner with 22 a substantial surplus over what is required to meet both parties' needs， then 23 a premium above needs can reflect that relationship-generated 24 disadvantage." 25 26 46. Counsel for the husband submitted in reply that compensation is not a major element in 27 this case， and that this Court has already found this to be the case. Compensation has to 28 be seen in the context of this Court's summary analysis in paragraph 247 of its judgment 29 and in the context of what the husband provides for J. He pays for all of J's needs in 30 total， including nannies， so that the wife can enjoy her career. This provision by him is 31 in itself a continuing compensation to her. She has been able to pursue a successful 32 business career. The marriage was short and there is not even an attempt at calculating 33 relationship-generated disadvantage. Counsel said that at paragraph 247 of its judgment， 34 this Court set out a framework to also include the element of compensation. There should 35 be no change in what has already been decided by this Court as a fair outcome to these 36 proceedings. 37 SHAI 4respect to sh el for the ted uction RING 38 Wi simple 39 With aring， Coun that to ap de 40 fe submitply 41 between the 2017 and 2019 assets without more would not take into account the growth from which the wife would have benefitted had she received those assets in 2017， or of the two years of cohabitation before the marriage. Counsel argued that it would be unfair Judgment on Recalculation of Joint Assets：FAM 0066/2014：DJ v BJ. Coram：Richards J. Date：05.03.2021 Page 16 of 23 ```
```html 1 for the wife to lose three years of growth on the assets over the period from which the 2 husband would have benefitted and the wife did not. 3 48. Counsel for the husband submitted that to allow the wife to share in accruals during a 4 period of delay caused by her conduct would be contrary to the ruling of the CICA on 5 the matter. It would be unfair for her to do so and to benefit from an increase in value 6 because of conduct of the case which caused significant delay. Additionally the CICA 7 has ruled that time stops at 2017, some 3 years after separation which time period is 8 responsive to any concern about pre-PNA accrual, the period of prior cohabitation 9 having been found to be two years. Sharing is as per the PNA and it is likely that the 10 resulting share would be regarded as fair as the wife will not be left in a position of real 11 need. 12 13 49. The overarching argument of Counsel for the husband is that the amount proposed by 14 the husband on recalculation meets the summary analysis of the Court at paragraph 247 15 of its judgment and that the Court cannot vary from what was said in that paragraph. 16 Counsel said in oral submissions: 17 18 19 “Now we can't know what Your Ladyship means by a small nest egg but $300，000 20 in total， we submit， would plainly cover the notion of a small nest egg， $100，000 on 21 top of a good start in housing with a deposit and purchase price all taken care of 22 sets the wife on what you say is your intention， which is to give her： 23 24 “The aim would be to provide greater assistance to the wife on the road to 25 independent living.” 26 27 50. Counsel for the wife submitted that the Court should not limit itself to a mere 28 mathematical analysis and is empowered to make adjustments because the CICA has 29 asked that the strands of sharing， needs and compensation be reviewed with respect to 30 the sum. 31 32 33 reca 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 542 543 544 545 546 547 548 549 550 551 552 553 554 555 556 557 558 559 560 561 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576 577 578 579 580 581 582 583 584 585 586 587 588 589 590 591 592 593 594 595 596 597 598 599 600 601 602 603 604 605 606 607 608 609 610 611 612 613 614 615 616 617 618 619 620 621 622 623 624 625 626 627 628 629 630 631 632 633 634 635 636 637 638 639 640 641 642 643 644 645 646 647 648 649 650 651 652 653 654 655 656 657 658 659 660 661 662 663 664 665 666 667 668 669 670 671 672 673 674 675 676 677 678 679 680 681 682 683 684 685 686 687 688 689 690 691 692 693 694 695 696 697 698 699 700 701 702 703 704 705 706 707 708 709 710 711 712 713 714 715 716 717 718 719 720 721 722 723 724 725 726 727</td
```html 1 exercise and includes the exercise of a discretionary element in that having arrived at a 2 recalculated sum, I am to review and consider whether in all the circumstances of this 3 case, the three elements are satisfied by the new sum. This has to mean more than a paper 4 or rubber stamping exercise. 5 52. 6 Counsel on behalf of the wife also submits that as part of this exercise, any order made 7 by this Court should be on the basis that no subsequent costs orders are made against the 8 wife, otherwise a needs driven award is likely to be rendered nugatory. It is submitted 9 that this can be achieved by this Court stipulating that any award made to the wife should 10 be increased correspondingly to any cost orders or a figure is given and expressed to be 11 on the basis that no further costs orders are made against her. 12 53. 13 Counsel noted that the assets of the wife at the final hearing were calculated to be 14 $287，870.00 and asked that the Court accept from him that there has been an erosion 15 since then and that these have now been reduced to about $200，000.00. 16 54. 17 Counsel for the husband submitted that costs are not a matter for this Court in accordance 18 with the order of the CICA and that it cannot be a proper or principled approach to 19 increase the order to the wife because of the risk that the wife may have to pay some 20 costs. 21 55. 22 In my view the issue of costs does not fall within the remit of this Court. The Order is 23 clear that this is reserved to the CICA. The invitation by Counsel for the wife for this 24 Court to make some sort of statement in relation to costs amounts to making a 25 determination on this reserved issue, however indirect this may be and is an invitation 26 which I cannot accept. 27 DISCUSSION AND CONCLUSIONS 28 56. 29 30 31 32 33 Judgment on Recalculation of Joint Assets：FAM 0066/2014：DJ v BJ. Coram：Richards J.Date：05.03.2021 Page 18 of 23 ```
```html 57. I have first considered the needs of the wife. I reviewed the table at paragraph 210 of the judgment which sets out the monthly contributions made by the husband - excluding medical insurance, uninsured medical expenses and therapeutic treatments for J. 58. Nine of the twelve items listed in the table are items specific to J with the cost of the nanny ($3,900.00) being the largest percentage portion of the whole amount paid of $9,577.00 per month. 59. The other three items relate to costs for the household. However the submission that all outgoings for the home where she resides with J are met by the husband and that the wife indirectly benefits from these paid outgoings is not entirely correct. This is because in each case the wife shoulders part of these monthly payments. 60. Currently she meets 45% of the rental costs, 45% of utility costs, and additional grocery costs in excess of $950.00 per month. 61. The wife's annual income in 2018 was $78,556.00 or $6,546.00 per month compared to $754,000.00 per annum or $62,866.00 per month for the husband. From her monthly income, in addition to meeting the portions of the household costs, the wife will have her own personal costs for herself for clothing, her own transport and other personal items. 62. While the wife would receive some indirect financial benefit from the 55% payments made by the husband, this is not a case where all outgoings are covered such that there can be a finding that the majority of the monthly sum earned by the wife is likely to be saved because all her household and daily living expenses are met and that she is therefore likely to have much surplus income. 63. Additionally when a house is purchased, which is to be held on trust for J, the wife will reside in it while responsible for funding 45% of the mortgage payments. As a house is built with the arra and the proceeds. 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```html 1 64. At paragraph 217 of the judgment, I concluded that on the evidence which I had seen, the wife has limited savings, limited assets and no surplus. 2 65. I have considered the asset position of the wife as set out in the judgment at paragraph 223. More than one half of it was made up of her pension rather than cash or a capital investment base. 66. Her companies which had been recently started were on the ascendancy but had not yet generated substantial sums. She is of middle age. The time open to her to build wealth, moreover, at the substantial level already achieved by the husband, is not extensive. The husband's significant earnings mean that his standard of living will be much higher than what the wife will be able to afford on her own. 67. There is nothing in the contribution arrangements by the husband, relied on in the course of this hearing, which serve to improve this position. In summary the wife is able to feed, clothe and house herself. She will not have to provide funding for major items for J. There is some contribution to her daily needs and these are met but in a way which is not likely to allow her to see growth in her wealth or realise increased financial security. In the absence of any lump sum payment, she must therefore rely entirely on her own efforts and businesses. 68. On the aspect of compensation, the main factors are that the wife is the primary carer for J and that, given his special needs, this is likely to be a lifelong endeavor. While J's needs are not at the level that the wife has to give up her career to stay home with him and it is of import that the husband pays for child care, there will undoubtedly be some impact on the wife given the extent of the endeavor. In the judgment it was stated: 28 “While she states that she has had to start her own business in order to give herself the flexibility to better care for J, the husband has been paying for nannies and will b even more< in the futur 30 31 32 33 erm basis an hoted that l bels out fost care for J a. Neverthelehis;ay that r tave prima. one. It is a eed that 34 236) 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 28 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 28 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 28 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 28 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 28 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 28 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 28 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 28 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 28 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 28 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 28 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 28 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 28 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 28 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 28 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 28 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 28 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 28 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 28 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 28 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47
The husband argues that provision of childcare is an element of continuing compensation for the wife. While the impact of this level of assistance is not to be minimised, nannies will not have the overall responsibility for the household, are unlikely to be permanent in J's life and are no substitute for a mother's continuing care and attention. J is now 8 years old. Because of the special circumstances, the wife as his primary carer will continue to make a significant contribution towards his welfare well into the foreseeable future. The husband will benefit from her contribution as although he will have visits with J, he is relieved of the day to day responsibility for him. Having considered all the circumstances I do not consider that the recalculated sum of $348,210.00 meets the justice of this case in particular with respect to the strands of need and compensation. That sum would do very little to assist the wife with her limited resources and assets, on the road to independent living. In my view, in all the circumstances, it would be unfair to confine an award to the strict line of the wife's daily needs. Need should be generously interpreted and should not necessarily be seen as a limiting factor where there is a substantial surplus of resources. Thus where possible, need may properly include a margin for savings and contingencies. (See Miller v. Miller, McFarlane v. McFarlane\footnote{Paragraphs 139 and 144}). I am also mindful of the cited cases of Brack v. Brack and FF v. KF as referred to above. There is a clear need for such a margin in this case. Secondly and importantly I consider that the recalculated sum would fail to adequately compensate the wife for a possible life time as the primary carer for J. The PNA would operate unfairly where the resulting sum is inadequate to satisfy the three principles with respect to the wife. At paragraph 247 of the August judgment I stated: "Finally, had I not been sharing, the calculation of separate age wife, the result would have been $12,000.00 less. This is a significant amount, and had it run for 24 years, it would have been $288,000.00. I would have considered this to be entirely inadequate in the context of this case. I would have considered the absence of inclusion of the period of cohabitation prior to the marriage." Judgment on Recalculation of Joint Assets: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.03.2021 Page 21 of 23
```html 1 marriage as an omission which had the potential to operate unfairly against the 2 wife. I would have concluded that the strands of need, compensation and sharing 3 required more than that amount and would have considered the non-matrimonial 4 assets or post separation assets in order to address more fairly the circumstances 5 of this case. I would have needed to bear in mind that while the contributions of the 6 husband to the acquisition of the after acquired assets ought not to be disregarded, 7 the wife's significant contributions in caring for the child also needed to be 8 considered. The ultimate aim would be to provide greater assistance to the wife on 9 the road to independent living. I would have said that the wife should be provided 10 with an amount reflective of her contribution in the past and in the future and 11 practically that she should be given a sum which allows her if she so chooses to 12 make a down payment on her own home (possibly 10% of $1.100，000.00) with 7% 13 closing costs, about $300，000.00) and a further sum which would then allow her to 14 have remaining, a small nest egg of savings which would form the basis for a 15 capital build or to have a capital sum available in circumstances where her savings 16 are said to be depleted and there are outstanding legal costs." 17 18 75. I have highlighted the sentence which then identified considerations for an award outside 19 of the PNA. In my view, the least amount which would meet the justice of this case in 20 terms of need, compensation and sharing is a sum of $650，000.00 to be paid to the wife. 21 This would be a fair outcome, balancing all factors, taking into account all the 22 circumstances of the parties and of the marriage as detailed in the previous judgment, 23 and applying the three important guiding principles. 24 25 76. I have arrived at this figure in the following way. The husband's 2017 assets are agreed 26 after deduction of the assets held in his firm to be $1，824，165.00 before other deductions. 27 The husband has agreed to add back most of the other deductions, challenging mainly 28 the outstanding mortgage on the Clipper Bay land ($212，119.00) as a liability. The 29 balance after this deduction would be $1，612，046.00. I have used a figure of 40% of this 30 to calculate the sum to be shared with the wife for a total of $644，818.00 rounded up to 31 $650，000.00. 32 33 77. The thinking is that the wife would have about $200，000.00 towards the purchase of her 34 own home and the $450，000.00 for use as a case 35 While this all comp 36 amount is smt 37 together with her earnings from her businesses towards financial growth and 38 independence. 39 Judgment on Recalculation of Joint Assets: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.03.2021 Page 22 of 23 ```
```html 1 78. Mindful of the need for overall fairness to both parties, I have also cross-checked the 2 amount of $650， 000. 00 against the husband's total asset figures, i.e. to consider what he 3 would retain. The husband's 2017 assets, excluding liabilities (not inclusive of guarantee 4 of firm (joint and several liability)) is a little over $1.8 million ($1， 805， 635. 00)， thus the 5 figure arrived at ($650， 000. 00) is about one third of this. The husband would in effect 6 be left with 2017 assets of about $1， 155， 635. 00. I concluded that the proposed amount 7 to be shared would not be unfair to the husband in all the circumstances of this case. 8 9 CONCLUSION 10 11 79. The conclusions are thus as follows： 12 13 i) The sum on recalculation as at July 2017 as per the PNA is $348， 210. 00. 14 15 ii) In light of this recalculation， I have reviewed all the circumstances of this case 16 and the submissions made and consider that the strands of need， compensation 17 and sharing are not adequately provided for as far as the Petitioner/Respondent 18 is concerned. 19 20 iii) Considering all the circumstances of this case， the sum of $650， 000. 00 would 21 adequately provide for the strands of need， compensation and sharing. 22 23 24 Dated this the 5th day of March 2021 25 26 27 Hontice Cheryll 28 Judge of the Grand Court

Neutral Citation	[2021] CIGC (FAM) 5
Cause Number	FAM 0066/2014
Court	CIGC (Fam)
Judge	Richards J
Parties	DJ v BJ - Judgment
Judgment Date	2021-03-05
Subject	Recalculation of assets, application of the three principles of Need, Compensation and Sharing
Filename (current)	21-03-05_dj_v_bj_-_recalculation_of_assets.pdf
File MD5	dba0ecd2d87242be44ae96f6bcc6cc7f
Source pipeline	pdb
PDB record ID	1321
PDB URL	https://judicial.ky/n0c-storage/judgments-repository/21-03-05_dj_v_bj_-_recalculation_of_assets.pdf

DJ v BJ - Judgment

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