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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> N v F [2011] EWHC 586 (Fam) (11 March 2011) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2011/586.html Cite as: [2011] Fam Law 686, [2011] EWHC 586 (Fam), [2011] 2 FLR 533 |
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This judgment is being handed down
in private on 11 March 2011. It
consists
of 54 paragraphs and has been signed and
dated
by the judge
The Judge hereby gives leave for
it to be reported.
The judgment is being distributed
on the strict understanding that in any report no person other than the advocates or the solicitors instructing them may be identified by name or location. In particular the anonymity of the
children
and the adult members of their
family
must be strictly preserved. If reported, it shall be the
duty
of the Law Reporters to anonymise this judgment.
![]() ![]() ![]() | ||
![]() |
COURT
OF JUSTICE
FAMILY
DIVISION
![]() ![]() Strand, London, ![]() ![]() |
||
B e f
o r e :
____________________
N |
Petitioner |
|
- and - |
||
![]() | Respondent |
____________________
Daniel
Bentham (instructed by Payne Hicks Beach)
for
the Petitioner
Nigel Dyer
QC and Victoria
Domenge
(instructed by Mishcon
de
Reya)
for
the Respondent
Hearing dates:
7-10 March 2011
____________________
Mr Justice Mostyn:
The central
issue
I thought hewas
pretty rich. He used to say he
was
very rich. His uncle
called
him a yuppie. He
would
say "I am much richer than a yuppie; it is insulting to
call
me a yuppie".
The evidence demonstrates
that H had assets
worth
£2.116m at the time of the marriage in 1993. Merely to adjust by inflation
would
up-rate that
figure
to £3.4m today. If one
were
to allow
for
a measure of passive growth using, say the
FTSE100
index, or 3.75%
compound
interest, then the
figure
becomes £4.2m.
i) It was
introduced a long time ago since
when
it has been
converted
into and merged
with
matrimonial property. This mingling means that it is not just evidentially
difficult
to establish the scale of such pre-marital property; but it also signifies, in effect, an agreement by H to share it
with
W.
ii) H has "alienated" certain
sums
during
the marriage.
iii) H has since 2007 eschewed the exploitation of a substantial earning capacity
in the
financial
sector in
favour
of a lowlier paid job as a schoolmaster. By
contrast
W,
notwithstanding that she is a qualified
clinical
psychologist,
with
a
doctorate,
has no meaningful earning
capacity.
iv) H has conducted
the litigation "tactically" (
which
I take to mean "unfairly") and has
caused
unnecessary
costs
to be incurred.
The Law
[Pre-marital property] represents acontribution
made to the
welfare
of the
family
by one of the parties to the marriage. The judge should take it into account. He should
decide
how important it is in the particular
case.
The nature and value of the property, and the time
when
and
circumstances
in
which
the property
was
acquired, are among the relevant matters to be
considered.
However, in the ordinary
course,
this
factor
![]()
can
be expected to
carry
little
weight,
if any, in a
case
![]()
where
the
claimant's
![]()
financial
needs
cannot
be met
without
recourse to this property.
Similarly in Robson, Hughes LJ stated at para 96:
That the origin of assets in inheritance is a relevantfactor
![]()
for
the
court
in no sense means that the approach to inherited assets ought always to be the same.
What
is
fair
![]()
will
![]()
depend
on all the
circumstances;
those
cannot
exhaustively be stated but
will
often include the nature of the assets, the time of inheritance, the use made of them by the parties and the needs of the parties at the time of trial.
In similar vein, Ribeiro PJ stated in LKW v DD
at para 91:
…there is no hard andfast
rule as to
whether
such property should be excluded. It is very much a matter
within
the judge's
discretion
to be exercised taking account of all the
circumstances
of the particular
case.
It is plainly important that,conformably
![]()
with
the ideal of justice in the individual
case,
there be general
consistency
![]()
from
one
case
to another of underlying notions of
what
is just and appropriate in particular
circumstances.
Otherwise, the law
would,
in truth, be but the "lawless science" of "a
codeless
myriad of precedent" and "a
wilderness
of single instances" of
which
Lord Tennyson
wrote
in his poem "Aylmers
Field"
![]()
Similarly in DD
v LKW Ribeiro PJ stated:
49.While
recognizing that some uncertainty is inescapable, it is nevertheless
desirable
that the appellate
courts
should attempt to provide guidance
with
a view to encouraging
consistency
and predictability. As Lord Nicholls pointed out in Miller/McFarlane [at para 6]:
"...an important aspect offairness
is that like
cases
should be treated alike. So, per
force,
if there is to be an acceptable
degree
of
consistency
of
decision
![]()
from
one
case
to the next, the
courts
must themselves articulate, if only in the broadest
fashion,
![]()
what
are the applicable if unspoken principles guiding the
court's
approach."
Baroness Hale added thatconsistency
and predictability should be promoted in order "to enable and encourage the parties to negotiate their own solutions as quickly and
cheaply
as possible".[para 122]
50. However, as Ormrod LJ observed, (Martin v Martin [1978]Fam
12) the
courts'
pronouncements on a provision like section 7 "
can
never be better than guidelines". This is because, as Gibbs
CJ
explained (Mallett v Mallett at 609), the
courts
"
cannot
put
fetters
on the
discretionary
power
which
the Parliament has left largely unfettered."
Dealing
![]()
with
the natural tension existing between the need
for
![]()
flexibility
on the one hand and the
desire
![]()
for
![]()
consistency
on the other, Brennan J stated:
"The onlycompromise
between idiosyncrasy in the exercise of the
discretion
and an impermissible limitation of the scope of the
discretion
is to be
found
in the
development
of guidelines
from
![]()
which
a judge may
depart
![]()
when
it is just and equitable to
do
so -- guidelines
which
are not rules of universal application, but
which
are generally productive of just and equitable orders." (Norbis v Norbis (1986) 161
CLR
513 at 538)
51. As his Honour pointed out, LordDenning
MR addressed the problem of guiding the exercise of an unfettered judicial
discretion
in
Ward
v James [1966] 1 QB 273 at 295 in the
following
terms:
"Thecases
all show that,
when
a statute gives
discretion,
the
courts
must not
fetter
it by rigid rules
from
![]()
which
a judge is never at liberty to
depart.
Nevertheless, the
courts
![]()
can
lay
down
the
considerations
![]()
which
should be borne in mind in exercising the
discretion,
and point out those
considerations
![]()
which
should be ignored. This
will
normally
determine
the
way
in
which
the
discretion
is exercised, and thus ensure some measure of uniformity of
decision.
![]()
From
time to time the
considerations
may
change
as public policy
changes,
and so the pattern of
decision
may
change:
this is all part of the evolutionary process."
The late Lord Bingham of Cornhill
put it this
way
in his book "The Rule of Law" (Allen Lane, 2010) at page 51:
The job of the judges is to apply the law, not to indulge their personal preferences. There are areas inwhich
they are required to exercise a
discretion,
but such
discretions
are much more
closely
![]()
constrained
than is always acknowledged.
In the presentcase,
bearing in mind that it
was
a marriage of more than 30 years, that there
were
three
children
and that the
wife
![]()
was
an active partner in the
farming
business as
well
as meeting the responsibilities of
wife
and mother, the only plausible reason
for
![]()
departing
![]()
from
equality
can
be the
financial
help given by the husband's
father.
I agree, however, that the significance of this is
diminished
because over a long marriage the parties jointly made the most of that help and because it
was
apparently intended at least partly
for
the benefit of both. As Lord Simon of Glaisdale said, in
delivering
the judgment of the Privy
Council
in a
case
under the
former
New Zealand legislation
Dorothy
Haldane v George
Christopher
Haldane [1977] AC 673, 697:
'Initially a gift or bequest to one spouse only is likely tofall
outside the Act, because the other spouse
will
have made no
contribution
to it. But as time goes on, and
depending
on the nature of the property in question, the other spouse may
well
have made a
direct
or indirect
contribution
to its retention.'
Similarly in Miller Lord Nicholls stated:
[24] In thecase
of a short marriage,
fairness
may
well
require that the
claimant
should not be entitled to a share of the other's non-matrimonial property. The source of the asset may be a good reason
for
![]()
departing
![]()
from
equality. This reflects the instinctive
feeling
that parties
will
generally have less
call
upon each other on the breakdown of a short marriage.
[25]With
longer marriages the position is not so straightforward. Non-matrimonial property represents a
contribution
made to the marriage by one of the parties. Sometimes, as the years pass, the
weight
![]()
fairly
to be attributed to this
contribution
![]()
will
![]()
diminish,
sometimes it
will
not. After many years of marriage the
continuing
![]()
weight
to be attributed to modest savings introduced by one party at the outset of the marriage may
well
be
different
![]()
from
the
weight
attributable to a valuable heirloom intended to be retained in specie. Some of the matters to be taken into account in this regard
were
mentioned in the above
citation
![]()
from
the
White
![]()
case.
To this non-exhaustive list should be added, as a relevant matter, the
way
the parties organised their
financial
affairs.
And Baroness Hale stated under the heading "The source of the assets and the length of the marriage" at para 148:
InWhite,
it
was
also recognised that the importance of the source of the assets
will
![]()
diminish
over time (see 611B and 995 respectively). As the
family's
personal and
financial
inter-
dependence
grows, it becomes harder and harder to
disentangle
![]()
what
![]()
came
![]()
from
![]()
where.
Similarly in LKW v DD
Ribeiro PJ stated at para 96 that "an important
factor
which
comes
into play is the
duration
of the marriage".
Towhat
property
does
the sharing principle apply? The answer might
well
have been that it applies only to matrimonial property, namely the property of the parties generated
during
the marriage otherwise than by external
donation;
and the
consequence
![]()
would
have been that non-matrimonial property
would
have
fallen
![]()
for
redistribution by reference only to one of the two other principles of need and
compensation
to
which
![]()
we
refer in para [68], below. Such an answer might better have reflected the origins of the principle in the parties'
contributions
to the
welfare
of the
family;
and it
would
have been more
consonant
![]()
with
the references of Baroness Hale of Richmond in Miller at paras [141] and [143] to 'sharing … the
fruits
of the matrimonial partnership' and to 'the approach of roughly equal sharing of partnership assets'.
We
![]()
consider,
however, the answer to be that, subject to the exceptions identified in Miller to
which
![]()
we
turn in paras [83]–[86], below, the principle applies to all the parties' property but, to the extent that their property is non-matrimonial, there is likely to be better reason
for
![]()
departure
![]()
from
equality. It is
clear
that both in
White,
at 605F–G and 989 respectively, and in Miller, at paras [24] and [26], Lord Nicholls of Birkenhead approached the matter in that
way;
and there
was
no express suggestion in Miller, even on the part of Baroness Hale of Richmond, that in
White
the House had set too
widely
the general application of
what
![]()
was
then a yardstick.
An example of the application of this technique is C
v
C
[2009] 1
FLR
8
where
Moylan J
decreed
a 60/40
division
of the property stating:
[94] I havecome
to the
clear
![]()
conclusion
that the
wealth
owned by the husband prior to the marriage and prior to 1984
was
substantial and justifies a
departure
![]()
from
equality. None of the other
features
in the
case
merits separate
consideration.
It
would
be unhelpful to suggest that the assessment of the extent to
which
such
departure
is justified
can
be
calculated
by reference to any
formula
or
clear
mathematics. It
would
also be unhelpful to suggest that it must be justified in this
way,
as that
would
result in the
dangers
highlighted by Lord Nicholls of Birkenhead at para [26] of his speech.
[95] The essence is that, by the time the parties met, the husbandwas
aged 40. He had been in the property business
for
over 10 years, had set up two
companies
in 1980
which,
by 1984 and more so by 1988,
were
![]()
well
established and successful,
with
a substantial asset base. This is not a
case,
as suggested by Mr Mostyn, of modest savings, but one of substantial
wealth.
Taking all these
factors
into account, in my judgment, I
would
be achieving
fairness
if I awarded the
wife
40% of the
current
![]()
wealth,
![]()
dividing
the pension assets and the other assets separately in the same proportion.
33. My view is that, in applying the sharing principle to thiscase,
![]()
we
should in the
first
instance adopt the approach
commended
to the judge by Miss Stone.
We
should therefore effect a
division
of the total assets of £25million into the part reflective of non-matrimonial assets and that reflective of matrimonial assets. But in
doing
so
we
should remember that, as Lord Nicholls stressed in Miller/McFarlane at [26],
we
are unlikely to need, still less to achieve, a precise
division.
The remaining step to be taken pursuant to Miss Stone's approach
will
be easy partly because in this
case
there is no ground
for
sharing the non-matrimonial assets other than 100% to the
contributor
and 0% to the other and partly because, by
contrast,
there is no ground
for
sharing the matrimonial assets other than equally.
34. My view however is thatwe
should test the result suggested by the adoption of Miss Stone's approach against application of Mr Pointer's approach, namely by identifying,
for
allocation to the
wife,
such lesser percentage than 50% of the total assets as seems to make
fair
overall allowance
for
the husband's introduction of his
company
into the marriage.
35.Criticism
![]()
can
easily be levelled at both approaches. In
different
![]()
ways
they are both highly arbitrary. Application of the sharing principle is inherently arbitrary; such is, I suggest, a
fact
![]()
which
![]()
we
should accept and by
which
![]()
we
should
cease
to be
disconcerted.
Mr Pointer's approach seems particularly by-and-large. But is the greater apparent specificity of Miss Stone's approach an illusion? Powerful voices are raised against the accuracy of the types of valuation
which
her approach often requires.
For
example in H v. H [2008] EWHC 935 (
Fam),
[2008] 2
FLR
2092, Moylan J, at [5],
described
valuations of private
companies
as particularly
fragile
and suggested that their ostensible accuracy
was
no more than a
chimera
and that their purpose
was
to assist the
court
"in testing the
fairness
of the proposed outcome".
We
may infer that Moylan J
would
have preferred in the
first
instance to adopt Mr Pointer's approach and, at most, only to test the suggested result against application of Miss Stone's approach. The exercises, on the one hand, of adopting A and of testing against B and, on the other, of adopting B and of testing against A may indeed have subtly
different
![]()
consequences.
At all events in this
case,
particularly in
circumstances
in
which
a
central
valuation mandated by it has been
crystallised
by sale, I prefer in the
first
instance to adopt Miss Stone's approach.
In that case
the pre-marital property
was,
by adjustment of an agreed accountants' valuation to reflect
what
was
described
as a "springboard" and the application of passive growth referable to the
FTSE
All Share Oil and Gas Producers Index,
calculated
to be £9m. That
was
subtracted
from
the total assets of £25m leaving £16m of matrimonial property,
which
was
divided
equally. The award
was
tested, secondarily, by the overall percentage technique.
Wilson
LJ stated at para 52:
As I have observed, the question-mark to be set against the abovecalculation
is properly recognised by a resolution to test its suggested award to the
wife
of £8m by the application of Mr Pointer's approach. The sum of £8m represents 32% of £25m. My view of overall
fairness
to both parties,
developed
at an early stage and not
displaced
in the
course
of protracted subsequent reflection, is that an award of 40% to the
wife,
![]()
for
![]()
which
Mr Pointer
contends,
![]()
would
be unfair to the husband and that the bracket
fair
to both
would
be between 30% and 36%. So the suggested award, albeit not precisely in the middle of the bracket, survives the test.
[143] Some argue that thisdictum
stipulates that the two-stage process should be telescoped into one. I
find
it
difficult
to accept that this is
what
the
Court
of Appeal intended. A telescoped approach runs the risk of insufficient logical rigour being applied to the identification and treatment of the two very
different
![]()
categories.
It runs the risk of palm-tree justice being applied. It is so easy to say – '
well
there is a good
deal
of non-matrimonial property here so I
will
reduce the
claimant's
share to 40%', but that approach simply
does
not tell anyone
what
![]()
weight
is being given to that
factor.
There is also the point that para [66] of
Charman
by its terms requires an identification and quantification of the non-matrimonial property in order to inform the percentage share.
What
is the point of all this
work
if it is then to put to one side in
favour
of a percentage based on '
feel'?
[144] I, therefore,decline
to accept that the
Court
of Appeal intended to abrogate the two-stage approach used by Burton J and in other
cases.
![]()
Certainly,
the overall percentage share must be undertaken as a
final
![]()
check,
![]()
for
the yardstick of equality applies to all the assets and is there to guard against inadvertent
discrimination
as Lord Nicholls of Birkenhead memorably pointed out in
White.
[145] I havefound
above that the total non-Zendan property amounts to £18,147,310. H's pre-marital property amounts to £2,182,111. The matrimonial property is, therefore, £15,965,199. On the
facts
of this
case
there is no good reason
why
this should not be equally shared in accordance
with
![]()
well
established principle. Thus
W
![]()
will
receive net exit
funds
of £7,982,600. ….
…
[147] The award toW
of £7,982,600 represents 44% of the non-Zendan assets
which
I judge to be
fair
having regard to the scale of H's pre-marital property.
I did
not allow any up-rating of the husband's pre-marital property
for
the reasons explained in para 91
where
I stated:
[91] Ifind
that H brought into the marriage assets
worth
£2,182,111, as per Appendix 8 of Miss Bangay's skeleton. H has produced no evidence that on top of this he had £800,000 or any other sum in an X Bank savings account. I
do
not adjust this sum of £2,182,111 to reflect the effect of inflation over the last 10 years,
for
two reasons.
First,
in that period the
FTSE
100 has in
fact
gone
down.
It is
debatable
![]()
whether
that sum if invested
would
now be
worth
more than £2.182m. Second, given the
degree
of merger that has taken place over the period of the marriage I take the view that any investment return on these moneys should be regarded as matrimonial rather than non-matrimonial property.
i) Whether
the existence of pre-marital property should be reflected at all. This
depends
on questions of
duration
and mingling.
ii) If it does
decide
that reflection is
fair
and just, the
court
should then
decide
how much of the pre-marital property should be excluded. Should it be the actual historic sum? Or less, if there has been much mingling? Or more, to reflect a springboard and passive growth, as happened in Jones?
iii) The remaining matrimonial property should then normally be divided
equally.
iv) The fairness
of the award should then be tested by the overall percentage technique.
D2
The exercise often stops at "needs"
54. The second point is that in mostcases,
![]()
discussion
of the guidelines is superfluous. Usually, the available assets are insufficient to
cater
![]()
for
the needs of both parties after termination of the marriage so that the exercise
does
not progress beyond
consideration
of their needs. As Lord Nicholls put it in Miller/McFarlane:
"In mostcases
the search
for
![]()
fairness
largely begins and ends at this stage. In most
cases
the available assets are insufficient to provide adequately
for
the needs of two homes. The
court
seeks to stretch modest
finite
resources so
far
as possible to meet the parties' needs."[62]
55. It is therefore only incases
![]()
where
surplus assets remain to be
distributed
after seeing to the parties' needs that the guidelines may require
consideration.
The
disposal
of simple
cases
should not be pointlessly
complicated
by inappropriate attempts to apply such guidelines.
Need
[118] Baron J had held that the ante-nuptial agreementwas
'manifestly unfair' in that it made no provision
for
the possibility that the husband might be reduced to
circumstances
of real need.
Wilson
LJ at para [144] appears to have thought that there
was
nothing unfair about this and, inferentially, that had the husband been in a situation of real need the agreement
would
nonetheless have been good reason
for
the
court
to
decline
to alleviate this by an order of ancillary relief.
We
![]()
would
not go so
far
as this.
[119]We
stated at para [73] above that the question of the
fairness
of the agreement
can
often be subsumed in the question of
whether
it
would
operate unfairly in the
circumstances
prevailing at the breakdown of the marriage, and this is such a
case.
Had the husband been incapacitated in the
course
of the marriage, so that he
was
incapable of earning his living, this might
well
have justified, in the interests of
fairness,
not holding him to the
full
rigours of the ante-nuptial agreement. But this
was
![]()
far
![]()
from
the
case.
On the evidence he is extremely able, and has added to his qualifications by pursuing a
D
Phil in biotechnology.
Furthermore,
the generous relief given to
cater
![]()
for
the needs of the two
daughters
![]()
will
indirectly provide in large measure
for
the needs of the husband, until the younger
daughter
reaches the age of 22.
Finally,
the
Court
of Appeal
did
not upset the judge's order that the
wife
should
fund
the
discharge
of
debts
of £700,000 owed by the husband, only a small part of
which
she had
challenged.
[120] In thesecircumstances
![]()
we
![]()
consider
that the
Court
of Appeal
was
![]()
correct
to
conclude
that the needs of the husband
were
not a
factor
that rendered it unfair to hold him to the terms of the ante-nuptial agreement, subject to making provision
for
the needs of the
children
of the
family.
![]()
Non-matrimonial property
[79] Often parties to a marriagewill
be motivated in
concluding
a nuptial agreement by a
wish
to make provision
for
existing property owned by one or other, or property that one or other anticipates receiving
from
a third party. The House of Lords in
White
v
White
and Miller v Miller
drew
a
distinction
between such property and matrimonial property accumulated in the
course
of the marriage. That
distinction
is particularly significant
where
the parties make express agreement as to the
disposal
of such property in the event of the termination of the marriage. There is nothing inherently unfair in such an agreement and there may be good objective justification
for
it, such as obligations towards existing
family
members. As Rix LJ put it at para [73]:
'… if the parties to a prospective marriage have something important to agreewith
one another, then it is often much better, and more honest,
for
that agreement to be made at the outset, before the marriage, rather than left to become a source of
disappointment
or acrimony
within
marriage.'
…in applying the principles of need and of sharing, thecourt
is engaged in two separate exercises,
which
require it to refer to
different
![]()
considerations
(
Charman,
![]()
cited
above, at [70] and [72]); and that the suggestion that the result of the assessment under the need principle
can
be introduced into the assessment under the sharing principle in order to identify the extent of
departure
![]()
from
equality is inconsistent
with
the guidance given in Miller/McFarlane, as recognised in
Charman
at [73] and as noted by the judge himself at [410], that in principle the higher assessment should
found
the award.
I do
not take this passage to suggest that assessment of need is an insulated metric uninformed by
factors
that are
centrally
key to the performance of the sharing principle,
for
the reasons I have stated above.
Narrative
US$ A property in Lexington 270,302 A property in Boston 548,131 Profit share plan 590,448 Brokerage account 437,805 26,279 A Inc shares * 1,116,174 9,302 B Corp
shares **
273,769 3,236,629 converted
to £ at Sept 1993
FX
rate (0.6538)
2,116,108
* ignoring 3,000 shares later transferred to afamily
![]()
foundation
** ignoring 2,100 shares later transferred to a
family
![]()
foundation
The assets
JOINT ASSETS | £ |
![]() ![]() |
536,000 |
Natwest accounts | 500 |
Other assets (![]() | 140,000 |
![]() ![]() |
22,000 |
subtotal (rounded) | 677,000 |
H SOLE ASSETS | |
Lexington property | 293,000 |
Sole accounts | 23,000 |
Investments | 7,384,000 |
Liabilities | (380,000) |
Unpaid ![]() | (118,000) |
7,202,000 | |
![]() ![]() |
|
Sole accounts & liabilities | (108,000) |
Unpaid ![]() | (171,000) |
(279,000) | |
PENSIONS | 2,114,000 |
TOTAL ASSETS AND PENSIONS | 9,714,000 |
It is from
these
funds,
coupled
with
H's earnings and
whatever
else they
can
earn in the
future,
that the parties must house and support themselves and their
children.
Total assets | 9,714,000 |
![]() ![]() ![]() | (240,000) |
![]() ![]() ![]() | 9,474,000 |
Excluded sum | (1,000,000) |
8,474,000 | |
50% to ![]() | 4,237,000 |
% of ![]() ![]() ![]() | 44.7% |
Sum to H | 5,237,000 |
% of ![]() ![]() ![]() | 55.3% |
W's
needs
Child
Maintenance
i) £240,000 will
be paid by H into a joint account of the parties to be used solely
for
the education of the parties'
daughter.
ii) The Connecticut
property
will
be transferred to
W
subject to the mortgage
with
a net value of £536,000.
iii) W
will
receive pension transfers (
which
will
need a mirroring QDRO in the USA) totalling £945,431.
iv) W
will
receive a lump sum of £3,034,569,
from
which
she
will
pay her personal unpaid
costs
and liabilities of £279,000.
v) In this way
W
will
receive property, pensions and
cash,
which
after payment of her
debts
will
amount to £4,237,000.
vi) There will
be a
clean
break between the parties, in life and
death.
vii) H will,
from
1 April 2011, pay
child
support of £1,313 per
child
per month in advance, index linked.
When
a
child
is in tertiary education the sum is to reduce to half of the
current
figure
as a
contribution
to his/her bed and board
when
with
W.
Their maintenance support
when
at university
will be agreed between the parents at that time.