HC v FW

Financial relief may be determined in a party’s absence where the party has reasonable notice of the application and hearing, and the circumstances justify proceeding. Litigation capacity is decision-specific: capacity for one transaction does not establish capacity to conduct financial remedy proceedings. In a needs case, the court must assess all the circumstances, including the parties’ standard of living, resources, the duration and source of the wealth, and any physical or mental disability. Significant specialist care needs may justify a substantial capital award even where the wealth is predominantly non-matrimonial. Future provision may be capitalised using Duxbury where that is the basis advanced and accepted at the hearing. A freezing injunction may be granted where clear evidence establishes a solid risk of unjustified dissipation prejudicing the applicant’s claim.

The wife applied for financial relief following the breakdown of an eight-year marriage. She had suffered serious neurological and neuropsychological impairment after treatment for a brain tumour and pursued the proceedings through a litigation friend. The husband initially participated and was represented, but later disengaged, failed to provide updated disclosure and did not attend the final hearing.

The court considered whether it could proceed in his absence, the wife’s capacity to litigate, the value and matrimonial character of the parties’ assets, her general and specialist care needs, the appropriate method of capitalising future income, and the form of financial award. Following judgment, the court also considered whether a freezing injunction was necessary to protect the award.

1. Proceeding in the husband’s absence. The court was satisfied that the husband had reasonable notice of the application and hearing. He had previously been represented, had participated in the proceedings and FDR, and had been served by multiple methods. In the circumstances, and having regard to fairness, proportionality, equal footing, expense and delay, it was just to proceed under the Family Procedure Rules 2010.
2. Capacity. Capacity under the Mental Capacity Act 2005 is decision-specific. The wife’s capacity to grant powers of attorney or transfer property did not undermine the evidence that she lacked capacity to conduct financial remedy litigation. The court accepted that the assessment had been properly undertaken.
3. Financial award. This was a needs case. The court considered the parties’ luxurious standard of living, their resources, the marriage’s shorter-than-median duration, the predominantly inherited or pre-acquired source of the wealth, and the wife’s substantial disabilities. Her needs were assessed generously but reasonably. They included an adapted home in England, a Singapore property, travel and lifestyle costs, and extensive lifelong care and support. The court made a capital award totalling £15,251,098, funded principally by transferring the Singapore properties and ordering a balancing cash payment. A clean break was ordered.
4. Method of computation. Although the wife advanced an Ogden-based approach, the case was presented and decided on Duxbury principles. The court recognised the different assumptions underlying the two approaches and accepted Duxbury as appropriate on the arguments before it.
5. Freezing injunction. Applying the guidance in L v K (Freezing Orders: Principle and Safeguards) [2014] 2 WLR 914, the court found a solid risk of dissipation. The husband’s non-engagement, lack of transparency and liquidation of PS justified a proportionate order, effectively made ex parte and subject to the usual safeguards, restraining dealings which would reduce assets below the amount required to satisfy the wife’s award.
6. The scheduled ten-day hearing was vacated and there was no order as to costs.

First instance decision in the High Court (Family Division). No appellate history is stated in the judgment.