Throughout a marriage, more often than not, the parties see themselves as a team, contributing either financially or otherwise for their common good. On divorce, self-interest habitually becomes the priority. However, more frequently than one would hope, the intention of a party can be to make their former spouse suffer, indeed in some instances that can be the intention of both parties, with often disastrous consequences.
On the 16th January 2017 Mr Justice Mostyn handed down Judgment in Goyal v Goyal  EWFC 1, hoping ‘that it will bring to a conclusion this long running and futile litigation between the parties.’ At an earlier hearing Mostyn J described the matter in equally unfavourable terms, ‘it has been going on for far too long and as far as I can tell there is virtually no money left.’ It appears therefore that the parties’ mutual loathing had taken precedence over even their own self-interest.
The final appeal dealt with three issues, the question of ownership of an annuity contract, the wife’s deemed application for a variation of a periodical payments order and the husband’s application to vary the existing periodical payments order.
The parties were both under 40 and had one child. The husband had a career in banking combined with an addiction to spread betting; an addiction that on a conservative estimate had resulted in losses in excess of £500,000. Decree nisi was pronounced in 2013, giving some indication of the length of the proceedings. The husband had two pension policies in England and in February 2014 the parties had entered into a consent order, which was subsequently set aside, providing for the wife to have 50% of those pensions.
Following the consent order being entered into the husband claimed that he had encashed the two pension policies in January 2014 and used the money to reduce the debts he accrued whilst gambling. However it later transpired that was not true. Instead, in September 2014, he converted the pension policies into an annuity policy in India with a CETV of £87,000. Following determination of the relevant legal issues the wife received the entire benefit of the annuity policy.
The wife also sought 100% of the income derived from the annuity policy by way of a supplementary periodical payments order. Whilst persuaded, the Judge opined that, given the conduct and attitude of the husband throughout the proceedings, if such an order were made ‘a thicket of obstacles will be placed in the wife’s way to her receiving that income.’ The Judge sought to avoid those obstacles, ‘If, instead, some part of the income were to remain the husband’s it is less likely that he would cut off his nose to spite his face.’ The judge therefore ordered that the husband pay the wife two thirds of the quarterly income deriving from the annuity policy as it arises.
The subject of the husband’s application was a periodical payments order of 9th October 2015 requiring him to pay spousal maintenance at the rate of £500 per month with deferred commencement until 1st March 2016. The basis on which the calculation of the sum was made was the husband’s belief that within four months he would be able to obtain work in a bank earning circa £60,000 per annum; whilst it was anticipated that within the same period the wife would obtain employment earning £18,000-£19,000 per annum, thus enabling her to no longer be dependent upon state-benefits (the reason behind the deferred commencement of the payments).
Both presumptions were wrong, by the time the appeals were heard the wife remained on benefits and the husband was earning a relatively modest income tutoring 11-15 year olds in Maths and Physics. The husband stated that his prospects of obtaining work in the financial sector were fatally compromised by ‘lurid press reports of Judge Brasse’s judgment which were published (along with photographs said to have derived from the wife’s Facebook page).’ The Judge did not fail to see the irony. ‘It is an irony that reports strongly sympathetic to the wife and damning of the husband (and of which she may have had a hand in their creation) seem to have prejudiced the very periodical payments order she was awarded.’ The husband’s application was successful, reducing the payments from £500 per month to £100 per month.
The result being that the husband was ordered to pay periodical payments to the wife under two limbs. The first being £100 per month following the variation of the earlier order, a total of £1,200 per annum. The second limb provided for the husband to pay two thirds of the annuity income, being circa £4,000 per annum; a modest total of £5,200 per annum.
It is arguable that the parties are now both worse off as a direct result of their attempts to harm each other. Whilst the husband may argue that he shall apparently receive a third of the annuity income which he would not have done had it not been for his behaviour, given the minimal value of the same, the effect of his inability to gain meaningful employment is such that he is far worse off than he otherwise would have been. Moreover, had the wife refrained from apparently fanning the media flames following the earlier hearing she would now likely be in receipt of periodical payments five times higher than that which she is now receiving.
The moral must therefore be, that whilst parties are unlikely to find themselves shaking hands in the Judge’s Chambers following determination of matrimonial proceedings (something the author has only ever witnessed once), they should consider the impact of any potential action, tactical or otherwise, they wish to take in proceedings, even where the sole intention is to harm the other party, as the consequences may be far reaching.