W v W

A party completing Form E must provide truthful, full and realistic figures. A contingent liability belongs in the narrative, but it should reduce stated net worth only where credible evidence shows that, on the balance of probabilities, it is more likely than not to arise. Deliberate misrepresentation may justify judicial censure and an indemnity costs order. In capitalising maintenance, the court should determine the appropriate periodical payment, backdate any variation, and then calculate the replacement lump sum. A standard Duxbury calculation may be adjusted where the claimant’s age, vulnerability and financial dependence make the ordinary assumptions insufficiently secure. Open justice is the starting point in ancillary relief proceedings, but anonymisation may exceptionally be justified after balancing publicity against private-life interests.

The parties divorced in 1987. A consent ancillary relief order made in 1989 provided for spousal maintenance and included a Mesher arrangement. The wife later applied to vary and capitalise the maintenance order. The husband’s Form E presented him as insolvent by undervaluing assets, omitting pensions and inserting substantial contingent liabilities as hard debts. The court examined the preparation of the Form E, the husband’s conduct, the parties’ resources, the appropriate maintenance level, capitalisation period, Duxbury assumptions, affordability, anonymisation and costs.

1. Form E and disclosure. A Form E has a central role in the financial remedy procedure. Deponents and their solicitors, as Officers of the Court, must ensure that the figures are honest, careful and realistic. A contingent liability should be mentioned in the narrative, but should be included in the computational calculation only where credible evidence establishes that it is more likely than not to materialise. The husband’s presentation was deliberately false and misleading. The solicitor’s mistakes provided limited mitigation but did not relieve him of responsibility.
2. Capitalisation. Applying Pearce v Pearce [2003] EWCA Civ 1054, the court first fixed the varied periodical payment, then backdated it to the application, and finally substituted a capital sum. The appropriate annual figure was £34,000, with arrears of £12,473. Since the wife’s claims under the Inheritance (Provision for Family and Dependants) Act 1975 remained alive, capitalisation was calculated over her life expectancy rather than the shorter of the parties’ expectancies.
3. The court retained the Duxbury methodology. However, the standard 3.75 per cent rate was reduced to just over 3.25 per cent because the wife was older, financially dependent, vulnerable and unable to generate meaningful income. The award was £560,000, together with the arrears.
4. The husband’s affordability case was rejected. His resources, property and prospective earning capacity were sufficient. His misconduct justified an indemnity costs order for the additional costs caused by the defective disclosure. He was ordered to pay £71,100 within 14 days.
5. Open justice was the starting point. Anonymisation was exceptionally granted for the parties because of the unusual circumstances and possible employment consequences, although the court warned that future non-disclosers should not expect similar indulgence. Permission to appeal was refused.

First-instance decision in the High Court (Family Division). Permission to appeal was refused.