financial provisions

Moorish v Moorish [1984] FamLaw 26

- 2 ex wives seeking lump sums. He claimed that he could not sell his farm to sell lump sumps - Lot of evidence to show that if he farmed the way he had been there would be nothing left to give to ex- wives.- wasteful businessmanship - Court instructed him to sell the farm to raise the sum that wives are entitled to.

In L v L [2008] 1 FLR 142, the court summarised the post- Miller; McFarlane and Charman (No. 4) approach as follows:

"First, I must determine what are the assets and general financial position of the parties. Secondly, I must decide how all the property of the parties should be shared between them. That property should be shared equally between them unless there is good reason to the contrary. Thirdly, I must decide whether the result produced by the application of the sharing principle meets the needs of the parties. Those needs should be generously interpreted. It is only if the result of the application of the sharing principle fails to meet the needs of the parties that those needs will dictate a greater share of the property than that produced by the application of the sharing principle", per Richard Anelay QC (sitting as a Deputy High Court Judge), L v L, para. 15

preston v preston what are 'financial needs'?

"the word 'needs' in section 25(1)(b) in relation to the other provisions in the subsection is equivalent to 'reasonable requirements', having regard to the other factors and the objective set by the concluding words of the subsection ..."

white v white continued

' on a breakdown of the marriage these two classes of property should not necessarily be treated in the same way. Property acquired before marriage and inherited property acquired during marriage come from a source wholly external to the marriage. In fairness, where this property still exists, the spouse to whom it was given should be allowed to keep it. Conversely, the other spouse has a weaker claim to such property than he or she may have regarding matrimonial property.' there was no legal presumption of equal division when awarding ancillary relief, but a judge exercising his statutory discretion pursuant to section 25 of the Act should, before making his final decision, check his tentative views against the yardstick of equality of division and depart from equality only if, and to the extent that, there was good reason for doing so; that a claimant's financial needs or "reasonable requirements" should not be regarded as determinative in arriving at the amount of an award, and the assessment of financial needs should be treated only as one of several factors to be taken into account, particularly when the financial resources of the parties exceeded their financial needs; that although a claimant parent's wish to be in a financial position to make provision by will for adult children could not be regarded as a financial need under section 25(2)(b), the judge was entitled in a case where resources exceeded need, to give such weight as was appropriate to that parental wish; that the judge had misdirected himself in treating the parties' reasonable requirements as the determinative factor and confining the wife's award to her financial needs while leaving to the husband, whose financial needs were no greater, the entirety of the rest of the pool of resources; that, accordingly, the Court of Appeal had been entitled to exercise afresh the statutory discretionary powers under section 25; and that there were no grounds for interfering with the exercise of that discretion

McCartney v McCartney Mills [2008] EWHC 401

All mcCartneys pre-owned assets were quarantined. He gained them before the marriage and she played no party in attaining them. However, had he not been able to meet the needs of his ex wife and daughter, the outcome would have been different.

Rubin v Rubin [2014] EWHC 611 (Fam) The applicant wife (W) applied for a legal services payment order (LSPO) to cover costs incurred in financial remedy proceedings. She also applied for a lump sum to cover costs in proceedings under the Hague Convention on the Civil Aspects of International Child Abduction 1980. W was English and the respondent husband (H) was American. They had two young children and had moved to the United States. After a visit to England, W issued divorce proceedings in London and sought financial remedies. She refused to allow the children to return to the US. In Hague Convention proceedings issued by H, she was found to have unlawfully retained the children in England and Wales and was ordered to return them to the US. H issued divorce proceedings in the US, to which W responded. H obtained a stay of W's English divorce proceedings.

1) The Legal Aid, Sentencing and Punishment of Offenders Act 2012 had put the powers of the court to award a costs allowance on a statutory footing in relation to divorce proceedings by inserting s.22ZA and s.22ZB into the Matrimonial Causes Act 1973. Justice moston explains the factors at great length (not necessary to know them. Just know they are there)

seaton v seaton

42 year old man, parents looking after him. he wasn't going to live long He wasn't going to have many needs and so wife didn't have to provide for him

GW v RW (Financial Provision: Departure from Equality [2003] 2 FLR 108

Although this is a subjective question, it is generally accepted that a short marriage is one which has lasted for around five years or less. Pre-marriage cohabitation will be added to the length of the marriage following the decision in GW v RW (Financial Provision - Departure from Equality) [2003] FLR 108. However, the duration of the marriage cannot be considered in isolation, and there may be a multitude of other relevant factors such as children, contributions and earning potential. Although the court's approach to the division of assets in short marriages has evolved in a somewhat piecemeal fashion, there are some solid rules which are worthy of consideration.

Atkinson v Atkinson [1988], the wife moved in with her cohabitant within months of the settlement under which she had received a capital sum and maintenance. The husband applied to vary/discharge the maintenance and, at first instance, obtained a 25% reduction based on the projections of what the wife's cohabitant could generate income wise. The husband unsuccessfully appealed. The Court of Appeal were keen to stress that, while the decision not to marry and to simply cohabit was conduct that it would be inequitable to disregard, cohabitation was not to be given 'decisive weight' nor 'equated with remarriage'. They found that equating cohabitation with remarriage would 'unjustifiably fetter the wife's freedom to live as she chose post divorce' and any further reduction would force her into poverty.

Another Mr and Mrs Atkinson came before the court in 1995 (Atkinson v Atkinson (No 2) [1995]). This Mrs Atkinson commended cohabitation around four months after being awarded the former matrimonial home and £30,000 periodical payments per annum. The husband applied to vary and was successful in part, the district judge at first instance reducing his maintenance obligation to £18,000 per annum. On appeal, the High Court reduced the award further, following fresh evidence as to the upturn in the wife's cohabitant's business, to £10,000 per annum. However, Thorpe J reiterated that cohabitation was not to be equated with marriage and that it was merely a factor to take into account, particularly when assessing needs

Laurence v Gallagher [2012] EWCA Civ 394

Only case relating to civil partnership Couple had combined assets of 4 mil Most acquired by lawrence before civil partnership. The court held that equal sharing wasn't indicated. Property divided 67 and 33 percent. Same principles apply to civil partnerships and marriages

swindale v forder: he appellant (S), an intervener in ancillary relief proceedings between the respondent (F) and her husband (H), appealed against a decision which varied a property adjustment order. F and H had four children. When their marriage broke down, the High Court heard ancillary relief proceedings. S, a friend and former business partner of H, intervened in those proceedings. S claimed a beneficial interest in the former matrimonial home which was then occupied by F and her four children. The judge ordered that the home be charged in favour of S but that realisation of that charge be postponed for 10 years or until F's remarriage or cohabitation with another person. The judge subsequently confirmed that he had inadvertently failed to include a provision covering a situation where "the house was no longer required as a home". In seeking to correct that omission, the President ordered that a third event be inserted, namely that the charge could be exercised when "the house was no longer required as a home for [F] or her children or any of them". S submitted that the President had misconstrued the judge's intentions when ordering that the third trigger event was the date when F no longer required the property irrespective of whether any of the children also so required it.

Appeal allowed. A third condition would be added to the judge's order, namely that the house was no longer required as a home for F and at least one of the children. Although the court had no power under the Matrimonial Causes Act 1973 to amend a property adjustment order, there was an inherent jurisdiction for the court to vary its own order to make the meaning and intention of the court clear. The slip rule could be used to amend an order to give effect to the intention of the court. The issue therefore was what did the judge intend. It was clear that the judge's intention was to satisfy the need for a secure home for the children and their main carer, namely F. Thus the charge would be postponed so long as one of the children was living there with F; however the charge would be enforced if F was living there alone. Neither the judge's order nor the President's order gave effect to that intention and as such those orders were clearly wrong. As the children were all now living with H, the house was no longer required as a home for any of the children which meant that F could no longer resist S's claim for enforcement of the charge.

co v co

As Mr Justice Coleridge commented in CO v CO (Ancillary relief: pre-marriage cohabitation) [2004] EWHC 287 (Fam), [2004] 1 FLR 1095: 'Committed, settled relationships which often endure for years in the context of cohabitation (often, but not always with children) outside marriage, must, I think, be regarded as every bit as valid as those where the parties have made the same degree of commitment but recorded it publicly... by marrying.' The Millers had not cohabitated but the court held that the fact that Mrs Miller had committed herself to her future husband for four years, even before they became engaged, was a matter that could properly be considered.

A v L [2011] EWHC 3105 Parties married 14 years, 2 children Over 18 by the time of hearing Parties were in poor health Assets comprised mostly the equity in the home. Wife was living in the home They were on low income Mother lived on benefits and husband had an income of 17 and 23000. There was dispute as to property he owned in Egypt worth nothing He had debts of 36000 In these circumstances the court can only address the needs of the party.

Assets split 70:30 in favour of wife and this didn't leave husband or wife to have very much

Prest v Petrodel [2013] UKSC 34 Conflict between how the chancery court and family court approach these matters. If the courts going to get their hands upon assets for the purpose of family jurisdiction, they have to be wholly the property of husband and/or wife. Family home Married a long time, affluent lifestyle He set up a company, paid for himself, which held matrimonial home. Was the home a separate legal entity, owned by the company. If it was, the husband was entitled to it and wife couldn't have a share

Chancery court: house was owned by company, wasn't part of marital assets Supreme court overturned chancery court decision Found for wife, Court could: - Pierce the corporate veil- look behind and see what was going on. Court didn't do that - Under s 25, they had the right to disregard that this was a company but court refused to do that too because it would mean expanding the definition of s25 beyond the principles accepted by the court. - It said that on the facts before it, it could hold that the company was holding the house on resulting trust for the husband, therefore he was a beneficial owner and they could divide the proceeds.

Z v Z This was an appeal by a husband against an order made by District Judge Cushing in ancillary relief proceedings. Prior to the marriage, the parties had entered into a 'marriage settlement' (pre-nuptial agreement) which allowed the husband to retain all of the property (estimated value approximately £1 million) that he had acquired prior to the marriage. The focus of the appeal was whether the district judge should have ordered that there be a charge back in favour of the husband on the property to be purchased by the wife with the lump sum that she was awarded as part of the settlement.

Charles J, hearing the appeal, found that the district judge had erred in law in her treatment of the marriage settlement by essentially treating it as a pre-nuptial agreement would have been treated prior to the case of Granatino v Radmacher [2011] 1 AC 534. Her conclusion had been that, as the agreement did not specify what would happen in the event of a marriage breakdown or divorce, the weight to be attached to it was limited. However, the decision of the Supreme Court in Radmacher necessitated a significant change to the approach to be taken in relation to such agreements. At the heart of this change was the need to recognise the weight to be given to autonomy and so to the choices made by the parties to a marriage. The weight to be given to autonomy could alter the award that would otherwise have been made. Radmacher adds another rationale or principled approach to the reasoning to be applied in the balancing exercise demanded by the statutory test. The district judge had found that in this case both parties had intended the marriage settlement to be effective and were aware of its obvious purpose, notwithstanding that the wife did not have legal advice prior to entering into the agreement. The wife's evidence and the findings of the district judge were that she was indifferent to the precise value of the husband's property and so there had been no material non-disclosure at the time the agreement was signed. Charles J therefore concluded that the terms of the marriage settlement ,taken together with the findings of the district judge, did not warrant a conclusion that the agreement should be given limited weight. The next question for Charles J was whether there were factors that reduced or enhanced the effect of the agreement in the s.25 MCA exercise and how these should be regarded by the court. In his view, the finding by the district judge that the wife was in the weaker bargaining position was not sufficient in this case to give only limited weight to the marriage settlement. There was no evidence that the agreement was not one that was willingly and honestly entered into by both sides. Therefore, the district judge had erred in law in her approach to the assessment of the weight to be given to the marriage settlement and so in reaching her conclusion that it should only be given little weight in the s.25 exercise. She had adopted a pre-Radmacher approach to pre-nuptial agreements. Having assessed the circumstances of this case against the guidance in Radmacher, Charles J concluded that the agreement was a factor that should be given weight to give proper respect to the autonomy of both parties who had freely and knowingly entered into it. When assessing the sharing principle and the impact of contributions, the agreement provided a good reason for departing from an equal division of the assets that are now available and in the overall assessment of the award to be made, it is an important factor to be weighed in the balance. Charles J then went on to perform his own exercise of the statutory discretion. He ultimately ordered a chargeback of 33.3% of the value of the wife's property in favour of the husband. Taking into account the wife's liability to pay the husbands costs on appeal, this was increased to 35.8%.

VB v JP [2008] EWHC 112

Compensation was becoming an element of fairness rather than a claim in its own right. It is far more likely to be relevant in big money cases. Warns against treating compensation element as a claim for damages.

gohil continued The Court of Appeal allowed the husband's appeal. It held that Moylan J had incorrectly applied the Ladd criteria and was wrong to allow the wife's application on that basis [24]. However, it held that the Ladd criteria were relevant in order to establish what evidence the wife could adduce in order to establish material non-disclosure by the husband. Applying those criteria to the evidence before Moylan J, and discounting other inadmissible evidence, the Court of Appeal concluded that there was no admissible evidence to support Moylan J's conclusions on material non-disclosure [26-29]. Judgment The Supreme Court unanimously allows Mrs Gohil's appeal and reinstates Moylan J's order. Lord Wilson (with whom Lord Neuberger, Lady Hale, Lord Clarke, Lord Sumption, Lord Reed and Lord Hodge agree) gives the leading judgment. Lord Neuberger gives a short concurring judgment. Reasons for the judgment The husband had suggested that, as a judge of the High Court, Moylan J did not have jurisdiction to set aside an order of the High Court. This argument was not pursued in the Court of Appeal, but the Supreme Court makes the following observations: (a) the Court of Appeal has long recognised that it is an inappropriate forum for inquiries into non-disclosure issues raised in proceedings for the setting aside of a financial order; (b) this is shown by the present case, where an intensive fact-finding hearing was necessary; (c) there is an urgent need for definitive confirmation of the High Court's jurisdiction to set aside a financial order made in that court; (d) the Supreme Court endorses the conclusion of the Family Procedure Rule Committee in relation to its "Setting Aside Working Party", set out in the minutes of its meeting on 20 April 2015 [16-18]. The Recital Words such as those used in the Recital have no legal effect in a financial order in divorce proceedings. The husband owed a duty to the court to make full and frank disclosure of his resources, without which the court would be disabled from discharging its duty under s. 25(2) of the Matrimonial Causes Act 1973. One spouse cannot exonerate the other from complying with this duty [19-22].

Consequences To decide whether Moylan J's order could be reinstated, it was necessary to consider what admissible evidence was before him and ask whether he would properly have found that the husband had been guilty of material non-disclosure in 2004 [33-35]. Through no fault of his own, Moylan J had relied on evidence from the husband's criminal proceedings obtained from sources outside the UK (which had since been held inadmissible and had been discounted by the Court of Appeal) [13-15, 33]. However, even if Moylan J had referred only to the remaining admissible evidence [36-40], he would, in the light of his findings on it, still have concluded that the husband was guilty of material non-disclosure [42]. Lord Neuberger agrees that Moylan J's order can be reinstated. Several factors make it clear that the material non-disclosure issue should not be remitted, provided that there is no risk of injustice to the husband [49-55]. The court has to be satisfied that: (a) Moylan J would have decided that there had been material non-disclosure even if he had not received the inadmissible evidence; or (b) looking at the totality of the admissible evidence, it could safely be concluded that there had been material nondisclosure; or (c) if the issue was remitted, the judge could only realistically come to that conclusion in light of the totality of the admissible evidence [56-57]. For the reasons given by Lord Wilson, all three of these requirements were satisfied [58-61].

How do you decide the size of lump sum so you don't do either party an injustice. Duxbury v Duxbury [1987] 1 FLR 7 (the Duxbury calculation)

Court could resort to computer calculations: what some, put aside for a certain number of years would produce income at the required level such that at the end of the period of payment, all the income would be paid and all capital would be used up. Similar to programmes used in PI claims. This is a guide only, not mandatory and court does not apply it rigidly.

Delaney v Delaney [1990] 2 FLR 457 You can take into account welfare benefits Husband had a new second family Ex wife was also claiming support from home

Court looked at the situation as a whole Husband was entitled to life after divorce He shouldn't be expected to pay so much to first family that standard of living of second family would be such that they are forced onto benefits The first wife, should claim benefits, not the husband.

R v R [2004] 1 FLR 928

Court ordered that wife should be entitled to lump sum of £300,000. Thereafter, there should be 240 monthly instalments equivalent to monthly repayments on her mortgage. Court an tailor order to needs that the wife has.

H v H (Financial Provision: Conduct [1998] 1FLR 971money came from wifes father Came to light that husband had been taking money and transferring it to an account in his own name Divorce: wife claimed he isnt entitled to anything and she would meet her own needs ad needs of children with help of her father

Court said first consideration are the needs of the children Although carer needs a home but other parent also needs home where children can visit him. Therefore, because children are the first priority, court cant risk father being homeless. 375000 settled on him on trust so he could buy a home but on reversion to the children when he didn't need that home any longer.

Imerman v Imerman [2010] EWCA Civ 908 Wives find difficult relying on information not volunteered Wifes brother accessed husbands hard drive

Court said it was illegal and immoral and court wont have anything to do with it.

Martin (BH) v Martin (BW) [977] 3 All ER 762 -couple were childless and husband had already rehouse himself but equity and capital vested in the house was not enough for him to buy her a different house.

Court settled the house on the wife for her life or her remarriage or earlier if she decided she didnt want to live in the house any longer and wanted to sell it. (these were her contingent interests). If she decided to sell, the assets would be split 50:50 between them. This doesnt deprive ex-husband legitimate interest in the property. 'The sale will happen on death, on re-marriage or on cohabitation for more than 6 years'

Brooks v Brooks [1996] 1 AC 375 Decision came about before the court had granted new wide powers to deal with pension rights of couple (old case and now superfluous). Husband owned his own business and had set up a pension fund to provide for him and his wife into their retirement. Court, at the time didn't have the power to adjust this Counsel argued that this was a marriage settlement: fund set up to benefit parties financially in the future in their capacity as husband and wives.

Court was invited to deal with it as a settlement and redistribute it. They did so.

martin v martin

Court wont make the order if it is going to cause too much financial hardship to husband. - Husband to pay wife £5000 - Reduced to £2000 on appeal because husband showed to raise sum he would have had to sell his hotel. It would have required his income to raise the lump sum

gohil v gohil Background to the appeal The appellant ("the wife") used to be married to the respondent ("the husband"), a former solicitor. In 2002, the wife petitioned for a divorce. In response to her financial claims, the husband asserted that all of his ostensible wealth represented assets held on behalf of his clients [4-6]. In 2004, the wife's claims were settled at a Financial Dispute Resolution ("FDR") meeting. The settlement order ("the 2004 Order") provided that the husband should make a lump sum payment in final settlement of the wife's capital claims (which was eventually paid), and periodical annual payments (which the husband stopped paying in 2008). The 2004 Order included a recital that "the [wife] believes that the [husband] has not provided full and frank disclosure of his financial circumstances (although this is disputed by the [husband]), but is compromising her claims in the terms set out in this consent order despite this in order to achieve finality" ("the Recital") [7-9]. In 2007, the wife applied by notice issued within the divorce proceedings to set aside the 2004 Order on the ground that the husband had fraudulently failed to disclose his assets. These proceedings were delayed, largely because in 2008 the husband was charged with serious money-laundering offences dating from mid-2005. He was eventually convicted and committed to prison in 2011, and confiscation proceedings against him are ongoing [10-11]. In September 2012, after an eight-day hearing, Moylan J set aside the 2004 Order [12-14]. His decision was made on the basis both that (a) there had been material non-disclosure by the husband when the 2004 Order was made and, had he made full disclosure, the outcome would have been different, and (b) because the wife's evidence satisfied the criteria in Ladd v Marshall (which govern when fresh evidence may be adduced on appeal) it followed that her application should be allowed [24-25].

Criteria in Ladd v Marshall The Ladd criteria have no relevance to the determination of an application to set aside a financial order on grounds of fraudulent non-disclosure [32]. The Court of Appeal was wrong to accept an argument that the criteria should apply to determine what evidence could be adduced because: (a) the Court of Appeal would not have conducted the necessary fact-finding exercise, so the criteria for determining the admissibility of evidence in that court were irrelevant; (b) the first Ladd criterion presupposes that there has been a trial whereas, in this case, the wife's first opportunity to adduce the evidence was at the hearing before Moylan J; (c) the argument would not apply to an application to set aside a financial order made by a district judge and the evidential criteria should not depend on the level of court, and (d) the argument ignores the fact that, had the wife's claims proceeded to trial in 2004, the duty would have lain on the husband, not on her, to explain his resources [31]. In light of the erroneous approach to the admissibility of the wife's evidence, the dismissal of her set aside application cannot stand [33].

chambers v chambers

Delayed 20 years The lump sum she wanted would require him to sell his construction yard This was not necessary or appropriate given the length of time and he was exempted. Court encourages full disclosure so it knows what orders to make. However when it comes to calculating businesses, there is often discrepancy as to what the business is worth. Court is entitled to look at lifestyle: how they spend their time and money and make assumptions.

Clark v Clark [1999] 2 FLR 498

Even if the court does decide that this is conduct which must be taken into account, it doesn't mean you will get no award, it ayjust be less than you were initially entitled to. Fact dependant 40 year old met 80 year old millionaire ato business party Encouraged him to marry her Court held she had been purely motivate by money Marriage ended after 6 years Marriage hadn't been consummated and she forced him to live in a caravan in his home Court held this conduct was inequitable Nevertheless, she could not be left with nothing They merely reduced her award by half a million pounds.

conran v conran Wilson J

Family In deciding financial settlement, the court can consider contribution made by the Wife through her own special skills to the husband's business. One could not sensibly fit an allowance for contribution into an analysis of a wife's needs. That would do violence to language and to section 25(2), where contribution and needs are set out as different matters to which the court is required to have regard. Matrimonial Causes Act 1973 25 Wilson J was of the view that, notwithstanding the observations of Thorpe LJ in the Dart case, one could not sensibly fit an allowance for contribution into an analysis of a wife's needs. That would do violence to language and to section 25(2) , where contribution and needs are set out as different matters to which the court is required to have regard

K v K (Ancillary relief: Prenuptial Agreement) [2003] 1 FLR 120

Father was wealthy and court made general lump sum for wife because children were entitled to be brought up in circumstances that reflect that of the father 14 month marriage, 1 child. W (W's mother) pressured H into marriage - W assets of £1m, H had £25m. PNA £100k plus 10% pa for first five years. W sought £1,6m and £57k pa; H offered £120k, £600k on trust, clean break. Yes - on capital - but with additional capital £1.2m to re-house on trust during minority of child. No - spousal PPs of £15k

Hardy v Hardy

Future interest was that the husband would gain an interest in his parents business. Husband had no control over that at all. It was a gift of his parents. Wife's claim was dismissed.

Kokosinski v Kokosinski [1980] 1 All ER 1106 .

Good conduct can also be taken into account. A polish couple, married in englad, devoted to each other but marriage was short. Court didnt count pre-marital behaviour at that time. However, they said se was superhumanly good as a wife, mother and to his business and so that will be taken into account

M v M (Financial Provision) [1987] 2 FLR 1

Heilbron J H and W divorced after twenty years. H (who had a well-paid job and substantial assets) was willing to pay maintenance to W (now 47, who had spent most of her time bringing up their child), but argued that it should be for five years only in accordance with the "clean break" principle. The judge rejected his claim and ordered that the agreed payments continue "until further order". Termination after five years would be inappropriate and unjust, she said, because W's age and limited work experience would limit her earning capacity. W was entitled to financial provision that would maintain her comfortable standard of living.

B v B (Financial Provision: Welfare of Child and Conduct) [2002] 1 FLR 555 Parties married with one child Weren't wealthy Equity from home was £24000 Husband had bad conduct: abducted their only child after divorce to italy She was on income support He wasn't paying child maintenance

Held on this basis that equality wasn't fair and whole of the asset was transferred to wife to enable her to buy a home.

Currey v Currey (No 2)

Held that including an element to help her pay legal cost shouldn't be exceptional. It should be a legitimate request. However, the court should have regard to whether the wife has any other way to pay legal cost before asking husband e.g. family, loans, charge against any property she might recover. However, court will make the order if deemed necessary to do so. Court will distribute the cost so there is equality of arms but wont fix those fees beyond FDR stage (financial dispute revolution period before final hearing is set where parties come to court to negotiate.) This case caused s22ZA (orders) and s22ZB(criteria to be considered by court echoing principles in curry v curry) to be added to MA 1973: legal services payment orders. (LSPOs)

K v K H drank excessively and was unemployed. In the divorce he made an application for ancillary relief against the offer from W to share the proceeds of sale of the house equally.

Held: H was homeless and unemployed. His behaviour was such as should be taken into account, but his needs required provision of a sum which might enable him to get a home, and he was to receive more than 50% of the proceeds of sale.

Jenkins v Livesey [1985] AC 424 The parties had negotiated through solicitors a compromise of ancillary relief claims on their divorce. They agreed that the house should be transferred to the wife in consideration of her release of all other financial claims. The wife however became engaged to a new partner before the consent order was made, and remarried two days after. Disclosure had been given, but the House was now asked whether there remained a continuing duty to disclose material changes which occurred after the disclosure but before a consent order was made, and if such a duty existed, what effect that had on the order itself.

Held: There is an enhanced duty of full and frank disclosure upon legal professionals acting in family proceedings, and particularly in ancillary relief proceedings. The duty continued after disclosure until any final order was made. W was under a continuing duty to disclose the fact of her engagement as soon as it took place. Her failure was relevant to the validity of the consent order, and since the undisclosed fact undermined the basis of the consent order, the order was set aside

tavoulareas v tavoulareas Both husband and wife had independent means, and neither worked. The wife had spent £100,000k on Children Act proceedings, and sought ancillary relief. The judge had made an order on capital to reflect the fact that if those costs had not been spent W would have had the money available as capital.

Held: Whilst the judge may have wrongly included the costs sum, he had at the same time undervalued W's income from investments. It was also said that the provision of a house under a trust was incompatible with the need for a clean break, as to which 'I see no error of principle in selecting a settlement order for the provision of accommodation in a clean break case. Such a choice may be unusual and may need to be justified by exceptional features, but it is plainly within the ambit of judicial choice. ' As to the misconduct of the proceedings alleged by H: 'The criterion of conduct under Section 25 (2) (g) of the Act is clearly stated to be relevant if the court concludes that it would be inequitable to disregard it. But it does seem to me that a clear distinction must be drawn in all these cases between what might loosely be described as marital conduct and what might conveniently be described as litigation conduct. It seems to me as a matter of construction that Section 25 (2) (g) is plainly aimed at marital misconduct. If the applicant's misconduct is limited to misconduct within the ancillary relief case long after the separation of the parties, it is, in my judgment, questionable whether that factor should go to diminish the quantum of the financial award. ' The judge should however have created a trust reverting to the child rather than a charge.

Kyte v Kyte

Husband suffered depression and hospitalised often Wife tried to incite suicide She started seeing another man Cout held this conduct was inequitable

Alkhatib v Mastry [2002] EWCA 108 Evidence that husband had huge assets representing half his wealth.

If court overestimated, then tough, he should have disclosed and cooperated through the court.

M v B (Ancillary Proceedings) [1998] 1 FLR 53,60

In M v B (Ancillary Proceedings: Lump Sum) [1998] 1 FLR 53 the main issue was how the net proceeds of sale of the family home of £334,000 should be distributed following 'hotly contested' ancillary relief and Children Act proceedings which were heard together before Johnson J. At first instance, the Wife achieved her open position of £295,000/ £40,000. The Husband appealed and was successful to the extent of achieving a division of approximately £257,000/ £77,000. The judgment of Thorpe LJ contains the following well-known passage: "In all these cases it is one of the paramount considerations, in applying the s 25 criteria, to endeavour to stretch what is available to cover the need of each for a home, particularly where there are young children involved. Obviously the primary carer needs whatever is available to make the main home for the children, but it is of importance, albeit it is of lesser importance, that the other parent should have a home of his own where the children can enjoy their contact time with him. Of course there are cases where there is not enough to provide a home for either. Of course there are cases where there is only enough to provide one. But in any case where there is, by stretch and a degree of risk-taking, the possibility of a division to enable both to rehouse themselves, that is an exceptionally important consideration and one which will almost invariably have a decisive impact on outcome" Thorpe LJ The housing needs of both parties are relevant so they can discharge their continuing obligations to their children.

Reiterbund v Reiterbund [1975] 2 WLR 375

In determining whether a party would suffer grave financial hardship within the Matrimonial Causes Act 1973 s. 5 in the event of a divorce the court is entitled to take into account any rights to social security benefits. W opposed a petition relying on five years' separation on grounds that a decree would cause her grave financial hardship through loss of her right to a widow's pension in the event of H's death. The judge found that she would not suffer hardship since, inter alia, the loss of pension in that event would be made up by her supplementary benefit entitlement. W appealed, contending that the court was not entitled to take into account her right to social security benefits. Held, dismissing the appeal, that in the circumstances of this particular case a decree would not cause grave financial hardship to W since there was no reason to ignore her right to social security benefits.

The wife was aged 33 and the husband 38 and their marriage lasted 6 years. They had one child (aged 4) who was subject of a shared residence order under which he spent more time living with the wife than the husband. Matrimonial assets totalled £2.6m, of which the main asset was the former matrimonial home, from which the proceeds of sale were £2.4m. The husband was a successful city head-hunter, earning between £330K and £458K net p.a. during the last 4 years. The wife had given up work upon the birth of the parties' child, but had previously qualified as a barrister and worked at Goldman Sachs and at the self employed bar in criminal law. She was in the process of setting up a 50/50 partnership business with a semi-retired lawyer offering assistance to persons going through a divorce. The wife was also a beneficiary under 11 family trusts which owned her parents' family holding company, which had a balance sheet of £32m. Charles J was required to determine both the lump sum to be received by the wife and the quantum and duration of periodical payments. In considering the approach to the wife's trust assets, Charles J surveyed the applicable law from the cases of Thomas v Thomas [1995], Charman v Charman [2006], Charman v Charman (No 4) [2007] and Whaley v Whaley [2011]. He concluded that the correct approach was to focus on what the trustees would, in acting properly, be likely to do in the future in all the relevant circumstances of the case (not on what they would be likely to do if there was a disaster) [paras. 87 to 89]. His findings in this case were (at paragraph 124) that it would be in line with the history and purposes of the family trusts and indeed be in line with the family ethos: a) to assist in funding the purchase of a home for the wife and her son, b) to assist the wife and her son to maintain a reasonably comfortable standard of living not significantly different from that enjoyed during the marriage whilst, encouraging the wife to maximise her own earnings whilst also caring for her son on a day to day basis. He also held that in the longer term, (5 to 10 years) that it was likely that the wife would either receive significant income or capital from the trusts. Charles J held that a fair result was not one which seeks to achieve a dependence for life (or until re-marriage) for the payee spouse to fund a lifestyle equivalent to that enjoyed during the marriage but one that recognises that the aim is independence and self sufficiency based on all the financial resources that are available to the parties. Generally, the marital partnership does not survive as a basis for the sharing of future resources but this was subject to a number of qualifications (see paragraph 136). The judge characterised the wife's position in respect of periodical payments (summarised at paragraph 45) as one which asserted that the husband should continue to fund a lifestyle equivalent to that enjoyed during the short marriage, that she should be free to decide whether or not she will utilise her ability to earn, and that she should not have to give credit for any of her earnings. He concluded that would not be fair. He also opined (see paragraph 175) that it was instructive to cross reference an award to what hypothetically would have been ordered if the parties had not had children. Applying the above principles, and making a number of findings as to the parties' common intentions about their future work patterns (at paragraph 154), he held that the order for periodical payments should: i) start at £95,500 p.a. ii) reduce to £75,500 p.a. after two years, iii) reduce to £55,500 p.a. after 4 years, iv) reduce to £35,000 after 6 years.

In respect of capital, Charles J accepted the wife needed a housing fund of £1.675m. However, he decided that the liquid capital should be split roughly equally (i.e. each party should overall take c. £1.3m) and that the wife should fund the remainder of the sum required for her housing by borrowing (if she did not receive a capital payment as a beneficiary under one of the family trusts). In respect of child maintenance, Charles J ordered that the husband pay £1,500 per month (with annual RPI increases) and school fees, until the end of tertiary education but, from the end of secondary education or the child's 18th birthday (whichever was later), the payments were to be made directly to the child. Overall the award ordered by Charles J was between the parties' open positions as he found that both parties failed to pay proper regard to the balance that should be struck between the financial resources of the parties in respect of the funding of relationship generated needs, contributions and disadvantages, and the independent, self sufficient and potentially divergent standards of living of the parties, following divorce.

Gojkovic . Gojkovic [1990] 1 FLR 140

In the pre-White era when needs, or rather, reasonable requirements, was the ruling criterion, active business contribution by the wife in Gojkovic v Gojkovic [1990] 1 FLR 140 enhanced her need beyond the conventional house plus Duxbury metric to meeting her ambition to run a hotel.

The leading case remains C v C (Financial Relief - Short Marriage) [1997] 2 FLR 26.

In the space of a year, the couple married, had a child and separated. Lord Justice Ward described the case as highly unusual and indeed unique, but still chose to dismiss the husband's appeal of the first instance decision which provided the wife with a significant lump sum, child maintenance, but more importantly, a high level of periodical payments on a joint lives basis. Lord Justice Ward stated that although the marriage was very short, it had profound and continuing consequences for the wife's earning capacity in the short to medium term. Although it was inappropriate in a short marriage case to limit financial support for the wife to a relatively short period, the brevity of the marriage may nevertheless be relevant to the issue of quantum of periodical payments. Lord Justice Ward helpfully set down the appropriate approach as follows:- (a) The first task is for the court to consider a clean break pursuant to Section 25A(1). (b) If there is to be no clean break, the court is to decide the amount to be ordered. The duration of the marriage is a factor relevant to the determination of quantum. (c) If a periodical payments order is made, the court must then consider whether it would be appropriate to impose a term. (d) Is it appropriate to order periodical payments only for such a term as would be sufficient to enable the recipient to adjust without undue hardship to the termination of financial dependence on the paying party? (e) What is "appropriate" depends on all the circumstances of the case, including the welfare of any minor child and the Section 25 checklist, one of which is the duration of the marriage. It is not however appropriate simply to say, "this is a short marriage, therefore a term must be imposed". (f) Financial dependence is evident from the very making of a periodical payments order, although the question is whether, in the light of all the circumstances of the case, the recipient can adjust without undue hardship to the termination and, if so, when. In considering such issues, the court should consider not only the duration of the marriage, but also the need to care for any minor children and the effect that will have on the earning capacity of the recipient. It is highly material to consider any difficulties the recipient may have in entering or re-entering the labour market. (g) The court cannot form its opinion that a term is appropriate without evidence to support its conclusion. There must be a reasonable expectation that the recipient can and will become self-sufficient. Crystal ball gazing is not sufficient. (h) The court must also form an opinion not only that the recipient will adjust, but also that she will have adjusted within the term that is fixed. The court may be in a position of such certainty that it can impose a Section 28(1A) bar. The decision of Lord Justice Ward in C v C must however be considered in the context of recent decisions.

sharland continued Mrs Sharland immediately invited the judge not to seal the consent order and applied for the hearing tobe resumed. At the hearing of her application in April 2013 the judge found that Mr Sharland's earlierevidence had been dishonest and, had he disclosed the IPO plans, the court would have adjourned thefinancial proceedings to establish whether it was going ahead. However, by the time of the hearing,the IPO had not taken place and an IPO was not now in prospect. The judge declined to set aside theconsent order on the ground that he would not have made a substantially different order in thefinancial proceedings, applying the decision of the House of Lords in Livesey (formerly Jenkins) v Jenkins[1985] AC 424. The Court of Appeal upheld the judge's order (Briggs LJ dissenting) and Mrs Sharland appealed to theSupreme Court.

It is not necessary to decide in this case whether the greater flexibility which the court now has in casesof innocent or negligent misrepresentation in contract law, restricting a victim's right to rescind theagreement, should also apply to such misrepresentations or non-disclosure in consent orders in civil orfamily cases. The present case is one of fraud. It would be extraordinary if the victim of a fraudulentmisrepresentation in a matrimonial case was in a worse position than the victim of a fraudulentmisrepresentation in an ordinary contract case, including a contract to settle a civil claim. Briggs LJ inthe Court of Appeal was correct to apply the general principle that 'fraud unravels all' and should leadto the setting aside of a consent order procured by fraud [32]. The only exception is where the court issatisfied that, at the time when it made the consent order, the fraud would not have influenced areasonable person to agree to it, nor, had it know then what it knows now, would the court have madea significantly different order, whether or not the parties had agreed to it. The burden of establishingthis must lie with the perpetrator of the fraud [33]. On the facts of this case it is clear that the judge would not have made the order he did, when he did,in the absence of Mr Sharland's fraud, and the consent order should have been set aside. The judgehad misinterpreted Livesey, which had drawn a distinction between triviality and materiality at the dateof the order and not at some later date [34]. He had also been wrong to deprive Mrs Sharland of a fulland fair hearing of her claims by re-making his decision at the hearing of the application on the basisof the evidence then before him [35]. The consent order should not be sealed and the matter shouldreturn to the Family Division for further directions [36]. The final part of the judgment discusses the procedure to be followed by parties seeking to challengethe final order of a court in family proceedings. The court retains jurisdiction over a marriage evenafter it has been dissolved and s 31F(6) Matrimonial and Family Proceedings Act 1984 gives the familycourt power to vary, suspend, rescind or revive any order by it. It is open to the parties either to makea fresh application or to appeal against the consent order. Lady Hale endorses the observations ofLord Wilson in the judgment in Gohil v Gohil [2015] UKSC 61 on the question of how suchapplications should be made, while emphasising that the renewed financial remedy proceedings neednot start from scratch and the court may be able to isolate the issues to which the misrepresentation ornon-disclosure relates [37-43].

A v A it was submitted on the one hand that a Duxbury calculation was inappropriate (reference being made to the judgment of Singer J in A v A (Elderly Applicant: Lump Sum) [1999] 2 FLR 969 and to the Ogden tables) and on the other that "there was no warrant for introducing the Ogden tables into the [1975 Act] jurisdiction [12], any more than in the matrimonial jurisdiction" [13] and the use of the Duxbury method in Re Scott-Kilvert, Robinson v Fernsby was also drawn to Munby J's attention. The award of £200,000 in respect of the 60 year old claimant's capitalised income needs was calculated on the Duxbury basis.

It may be that, following Re Myers, Duxbury is becoming the method of choice in 1975 Act cases; see Fielden v Cunliffe [2005] EWCA (Civ) 1508, [2006] 1 FLR 745, CA [14]. However, it is submitted first, that the judgment of Munby J is not authority for the proposition that the Duxbury method is the only permissible method of capitalising income needs in 1975 Act claims, and second, that the Ogden tables can provide a perfectly satisfactory basis for capitalisation of income needs in appropriate cases.

In B v B (Financial Conduct: Welfare of Children and Conduct) [2002] 1 FLR 555 the sole asset was 124,000. The husband had failed to disclose a bank account, had paid money to his mother and had abducted a child to Italy for which he was imprisoned. The wife received 124,000, which was only just enough to rehouse her, and the husband nothing.

It was held that the husband's conduct was a good reason for departing from equality.

sharland v sharland This appeal considers the impact of fraudulent non-disclosure on a financial settlement agreed betweena husband and wife on divorce, especially one embodied in a court order. The parties were married in 1993 and separated in 2010. They have three children, one of whom hassevere autism and will require care from Mrs Sharland throughout his life. Mr Sharland is anentrepreneur who has a substantial shareholding in a software business, AppSense Holdings Ltd,which he developed. In the financial proceedings between the parties the value and manner ofdistribution of this shareholding was the principal matter in dispute. Both parties instructed valuers,who produced valuations on the basis that there were no plans for an Initial Public Offering (IPO) ofthe company. In the course of the trial in the High Court in July 2012, after Mr Sharland gave evidence confirmingthat there was no IPO 'on the cards today', the parties reached an settlement by which Mrs Sharlandagreed to receive 30% of the net proceeds of sale of the AppSense shares whenever that took place,together with other assets. The judge approved the agreement and a draft consent order was drawn up.Before it was sealed, however, Mrs Sharland became aware that AppSense was being actively preparedfor an IPO which was expected to value the company at a figure far in excess of the valuationsprepared for the hearing.

Judgment The Supreme Court unanimously allows Mrs Sharland's appeal. The consent order will not be sealedand Mrs Sharland's application for financial relief will return to the Family Division of the High Courtfor further directions. Lady Hale gives the only judgment. It is in the interests of all members of a family that matrimonial claims should be settled by agreementrather than adversarial battles in court [17]. Such an agreement cannot oust the power of the court tomake orders for financial arrangements [18] and does not give rise to a contract enforceable in law [19],but the court will make an order in the terms agreed unless it has reason to think there arecircumstances into which it ought to inquire [20]. Allied to this responsibility of the court is the parties'duty to make full and frank disclosure of all relevant information to one another and to the court [21]. Family proceedings differ from ordinary civil proceedings in two respects: a consent order derives itsauthority from the court and not from the consent of the parties and the duty of full and frankdisclosure always arises [27]. The consent of the parties must be valid. If there is a reason whichvitiates a party's consent there may also be good reason for the court to set aside a consent order.Whether the court is bound to do so is the question arising on the appeal [29].

Re G (Maintenance Pending Suit) [2007] 1 FLR 1674

Justice Mumby: sole criteria is fairness'. Marital standard of living is important even though it can't necessarily be replicated. Budget should take into account capital or long term expenses. These are matters for the final settlement. Because this is a preliminary matter, court must be fairly forensic when it looks at what parties are alleging. Should interim payment incorporate payment to allow wife to pay legal fees. If husband is wealthy and she has nothing then he can afford lawyers and she represents herself. Payment should therefore cover legal costs.

Crossley v Crossley [2008] 1 FLR 1467 Matter determined by CA

LJ framed questions: relevant question when faced with pre-nup should be 'why shouldn't the court uphold the pre-nup?' All of these decisions are fact dependant- more often than not, when there is a pre-nup it will be of 'magnetic importance' Couple married in 60s and both wealthy in their own right Entered into the marriage with pre-nup to keep their respective wealth should the marriage fail This was sensible and upheld

Browne v Browne (1989) 1 FLR 291

Lady butler-sloss, in times of equality it would be poor to view claims by husbands against wives as improper

McLoed v McLoed [2008] UKPC 64

Lady hale distinguished between pre and post nup. Comes back to this in radmacher. She intuitively is against pre nup. There is a huge difference in principle between a pre and post nup. Post nup: esp. if entered into soon before end of marriage, it is really a separation agreement and parties are making arrangements for future life. In principle, there is no problem with these being upheld. Pre-nup: before marriage, future is unknown.it is unfair that those agreements should be rigidly adhered to come what may. These agreements may be entered into more in hope than in any real expectaction.

Radmacher v Granatino [2010] UKSC 42 LEADING Wealthy german wife French husband- less wealthy than wife He was banker at the time of marriage Marriage was in Germany They signed a pre-nup, neither would have any financial claims on the other in the event of divorce. 2 children He worked in city earing 120/year Husband went off to oxford to do phd. He earned 30,000 as a lecturer Separation, divorce. Should he be held to agreement he entered into before the marriage CA held that this agreement should be given decisive weight in the interests of fairness. He was awarded £2.2. mil to buy a house on trust to provide for his housing needs until youngest daughter was 22. Then it reverts to his wife (mesher order) He was awarded some income: capitalised sum only providing for his needs until youngest daughter was 22. She wrote off his debts for him too Huge weight given to agreement. The order provides for his needs as father not as a husband. He appealed to SC: panel of 9 judges approve CA

Leading judgement: lord phillips the court is not obliged to give effect to the PMA, but will give it due weight It is the court, not the agreement, which will determine the appropriate level of relief The test is one of fairness Because hyman and hyman was not overturned, it is the decision of the court not the agreement that determines the outcome. Maj said that presumption/starting point is pre-nup and how much weight it then gets depends on fairness. What was not agreed: (baroness hale). If the court uses pre-nup as starting point, it almost gives it legal effect. Don't start with agreement, start with fairness. The weight to be given to the PMA Whether ante and post marital agreements should be treated similarly majority said to treat them identically. Baroness hale says they are entirely different. She regards treating them the same s discriminatory to women (para 137). There is a gender dimension to this issue which is ill suited to the court which comprises 8 men and one woman. It treats the marriage as no different from cohabitation. The contracting relationship renders the legal relationship irrelevant and is this is unfair and takes the power away from the court. Factors affecting weight of PMA: Duress, undue influence, misrepresentation Pressure short of undue influence e.g. woman is pregnant at the time of marriage. There needs to be fully informed consent Full disclosure and advice Circumstances at the time of contracting Any foreign element. If the pre-nup is entered into under jurisdictions where pre-nups are the law and will determine what happens after divorce. This will make the court less happy to depart form the terms of the agreement. Most of what was said in this case was obiter but powerful nonetheless. As a result of this decision, there was a strong presumption that pre-nups are enforceable but are not enforceable without legislation. Until this time, they cannot really be enforceable. If agreement is starting point, there cant be equal division along the lines of white v white. If it had been a husband who was the wealthy party, would the outcome have been the same? Possibly more lenient.

Piglowska v Piglowski [1999] 2 FLR 763,785 per Lord Hoffmann

Lord Hoffman, echoed lord Ormerod. You still have to apply principle of s25. Advantage of flexibility far outweighs disadvantage of being rigid.

carson v carson

Lord Justice Omerond 'the chickens unleashed by the mesher order were coming home to roost' all property orders are final orders. You cant come back and change. If parties or court decide that they got it wrong, there is no possibility for appeal or variation. Periodical payment orders are not final orders. You cna seek ariation of those terms should circumstances change.

white v white Couple were wealthy farmers Wife worked alongside husband in business for 33 years Farming business was worth £4.5 mil Had 2 farms. One they owned jointly and the other inhereited from his father Because there was inherited wealth, wife was awarded 1.7 mil, not half. However, principle still stands - lord Hoffman sought to bring integrity to the area. He pronounced that overall objective of the court was to be fair. Fairness lies in the eyes of the beholder. Per Lord Nicholls: an intuitive process which is likely to change over time •Per Baroness Hale: the overriding objective is "to give each party an equal start on the road to independent living". Court expanded on this concept of fairness: "As a general guide equality should only be departed from if, and to the extent that, there is good reason for doing so...... This is not to introduce a presumption of equal division under another guise." Holman J's reasoning can be summarised as follows. Neither party had any earning capacity outside farming. Mrs White's wish to have enough money to enable her to buy a farm of her own was not a reasonable requirement. It was unwise and unjustifiable to break up the existing, established farming enterprise so that she could embark, much more speculatively, on another. Her housing and financial needs were a farmhouse type of home, with stabling and 25 acres of land for her horses, costing £425,000. She needed a net annual spendable income of £40,000. Capitalised, having due regard to her age, a net income of this amount called for a Duxbury fund of £550,000. The Duxbury label is derived from the decision of the Court of Appeal, Duxbury v Duxbury (Note) [1992] Fam 62 , where this type of fund was first described. This provision for Mrs White would leave Mr White with an amount exceeding his *602 reasonable requirements simply in terms of a home and income. But, additionally, he reasonably required to be able to continue farming in a worthwhile way. The financial contributions from his family made this reasonable. applied piglowski

Lord nicholls: 'there was equality of contribution in married life the judge's decision means that one party will receive a bigger share than the other. Before reaching a firm conclusion and making an order along these lines, a judge would always be well advised to check his tentative views against the yardstick of equality of division. As a general guide, equality should be departed from only if, and to the extent that, there is good reason for doing so. The need to consider and articulate reasons for departing from equality would help the parties and the court to focus on the need to ensure the absence of discrimination. This is not to introduce a presumption of equal division under another guise. Generally accepted standards of fairness in a field such as this change and develop, sometimes quite radically, over comparatively short periods of time. ' ' section 25 of the 1973 Act makes no mention of an equal sharing of the parties' assets, even their marriage-related assets. A presumption of equal division would be an impermissible judicial gloss on the statutory provision. That would be so, even though the presumption would be rebuttable. Whether there should be such a presumption in England and Wales, and in respect of what assets, is a matter for Parliament. It is largely for this reason that I do not accept Mr Turner's invitation to enunciate a principle that in every case the "starting point" in relation to a division of the assets of the husband and wife should be equality. He sought to draw a distinction between a presumption and a starting point. But a starting point principle of general application would carry a risk that in practice it would be treated as a legal presumption, with formal consequences regarding the burden of proof. In contrast, it should be possible to use equality as a form of check for the valuable purpose already described without this being treated as a legal presumption of equal division.' 'I can see nothing, either in the statutory provisions or in the underlying objective of securing fair financial arrangements, to lead me to suppose that the available assets of the respondent become immaterial once the claimant wife's financial needs are satisfied. Why ever should they? If a husband and wife by their joint efforts over many years, his directly in his business and hers indirectly at home, have built up a valuable business from scratch, why should the claimant wife be confined to the court's assessment of her reasonable requirements, and the husband left with a much larger share? Or, to put the question differently, in such a case, where the assets exceed the financial needs of both parties, why should the surplus belong solely to the husband? On the facts of a particular case there may be a good reason why the wife should be confined to her needs and the husband left with the much larger balance. But the mere absence of financial need cannot, by itself, be a sufficient reason. If it were, discrimination would be creeping in by the back door. In these cases, it should be remembered, the claimant is usually the wife. Hence the importance of the check against the yardstick of equal division'

Q v Q

Making a periodical payments order of 40% of the husband's income, for an extendable term of 4 years, the judge noted that the accumulated fruits of past shared endeavours had been determined in the division of capital. The periodical payments order was designed to provide a step, or bridge, to the anticipated clean break. It was not right in this case to make the husband bear the burden of effectively maintaining the wife for their joint lives; the 4 year periodical payments order and the capital division together should leave the wife with assets, including the home, of over 2.5 million, which was a fair and just result.

oth parties are French. W was aged 50 and H aged 53. Theirs was a 14-year marriage with a period of 4 year cohabitation (subject to one six month period of cohabitation). They had 3 children aged 14, 12 and 9. In June 1994 they entered into a marriage contract in accordance with French law. In July 1994 they married and lived in Paris and moved to live in England in August 2007. In February 2008 they commenced a 3 month trial separation. Before leaving, H signed a letter to W. In July 2008 H told the children that the parties had separated which marked the end of the marriage. In July 2008 W issued a petition in England. In a contested jurisdiction dispute, reported as Z v Z [2010], Ryder J held that the parties were both habitually resident in this jurisdiction on the date on which the Wife presented her petition. There were assets of £15,088,419. W's open position was that everything should be shared equally. W argued that it would be unjust to hold the parties to the French agreement. Simply dealing with the capital position in this summary, W sought £7.5 million and a further £250,000 as compensation for loss of the Husband's French State Pension. H's open position was to argue that the French agreement excluded sharing of assets and, following the Supreme Court in Radmacher v Granatino, [2010], it was fair to hold the Wife to the Agreement. He argued that the Wife's case should be dealt with on the basis of a pre-White v White [2001] needs assessment. He quantified W's needs at £5.28 million (approximately 35% of the assets) on a clean break basis.

Moor J held that this was undoubtedly a case for equal division of assets absent the French agreement. The issue was whether the marital contract took the case out of 'sharing'. There was no dispute that the agreement was entered into freely and with full understanding of its implications. No formal advice was given by the two notary witnesses and there was no formal disclosure. This did not matter as W knew exactly what the agreement entailed and each party new the financial position of the other. W said that on a number of occasions H had promised her that he would not enforce the agreement and she argued that it would be unfair to enforce it now. H denied this. Moor J refused to decide whether or not it could be possible to vary such an agreement orally such that it would be unfair to enforce it. He recognised that Edgar v Edgar [1980] considerations would be relevant to the test set out in Radmacher which is fairness. Moor J said that it was clear that the burden on someone raising the argument that the agreement had subsequently been varied, whether orally or in writing, would be a heavy one. There would have to be the clearest possible evidence of such an oral agreement before a court could even contemplate this as a reason not to enforce an agreement. On the evidence, it was held that the agreement had not been altered and it followed that both parties knew that the agreement was still operative. The terms of the letter H wrote before leaving were far more generous than could ever have been obtained from a court, given that, if taken at face value, the letter provided that H should pay the W one-half of all his net earnings past and future without time limit (other than any redundancy payment) as well as maintenance of up to €200,000 p.a. The Edgar guidelines were held to be relevant here: there was no legal advice; and H was under significant pressure. It was held that the letter did not constitute a good reason for departing from the terms of the agreement. Moor J upheld the agreement but stated that it might have been very different if the agreement had also purported to exclude maintenance claims in the widest sense, but the agreement did not do so. W was awarded 40% of the assets which was held to be a suitable departure from equality to reflect the agreement.

whiting v whiting On October 21, 1983, wife filed a Bill of Complaint in the Circuit Court of Alleghany County seeking a divorce from husband. On January 6, 1984, the circuit court entered a pendente lite order requiring husband to pay child support to wife. On June 15, 1984, the court further ordered husband to pay wife $25 per week in spousal support. On November 21, 1984, the court entered an order permitting husband's attorney to withdraw from the case. On January 18, 1985, the circuit court entered a final decree of divorce, ordering that all previous orders issued in the case were to remain in effect and that wife would have the right to petition the court for permanent alimony and attorneys' fees. The decree failed to indicate whether husband or substituted counsel for husband was present, and nothing in the record established that husband received notice of the entry of the decree. Husband alleges that he received no such notice. Husband failed to pay the support required by the pendente lite order. He was found in contempt of the order on September 26, 1984, and on April 5, 1985, was ordered to appear before the court to account for his failure to pay the arrearage. The record does not reveal whether he made the required appearance. On June 21, 1985, however, the Department of Social Services ("DSS") moved the court to reinstate the case and transfer it to the juvenile and domestic relations district court for enforcement of the decree's support order. The circuit court granted DSS's motion and specifically ordered that husband continue to pay the support required under the pendente lite order. Neither husband nor wife was given notice of this order. Upon transferring the case to the juvenile and domestic relations district court, the circuit court struck the case from its docket. No further action was taken in the case. On June 24, 1992, the circuit court dismissed the case from its docket pursuant to the "five-year rule" of Code § 8.01-335(B).1 On November 20, 1997, wife filed a motion to reinstate the cause before the circuit court and to transfer it to the juvenile and domestic relations district court, having given notice to husband on November 10, 1997. The circuit court granted the motion and entered its decree on November 20, 1997. The juvenile and domestic relations district court thereupon determined that the pendente lite order of child and spousal support had remained in effect since June 15, 1984 and that husband owed spousal support arrears in the amount of $17,700 and child support arrears in the amount of $400. Upon appeal to the circuit court, husband argued that he was under no obligation to pay support, because the final decree of divorce was void, it having been entered without notice to him. In the alternative, he argued that he was not obligated to pay spousal support because an award of temporary support does not survive once a case is dismissed from the docket. The circuit court disagreed and entered judgment in favor of wife.

On appeal, husband contends 1) that because he received no notice of the entry of the final decree in January, 1985, the decree was void, and its subsequent dismissal from the circuit court docket terminated the pendente lite order entered in 1984; 2) that if the final divorce decree were deemed valid, its language did not preserve the support obligation created by the pendente lite order; and 3) that if the divorce decree were deemed valid and it preserved the support required by the pendente lite order, that obligation was subsequently terminated by the circuit court's order dismissing the case from the docket. For the reasons that follow, we affirm the trial court's decision.

H v H [2007] 2 FLR 548

Mr justice charles: don't approach these three strands as rigid formulas. S25 is still important and must be applied. Charles J in H v H when he said: "an approach that is acknowledged to be arbitrary, and which therefore does not have regard to the realities and circumstances of a given case is not correct" (para.57, H v H). So too was a trial date cut-off rejected by Moylan J in B v B "as a matter of policy" (para 47, B v B), as it would fail to give sufficient weight to the husband's endeavours post-separation. In H v H, Singer J excluded discretionary bonuses earned between 12 and 33 months after separation. However, the recognition of a more intuitive dividing line, being the point of the parties' separation, has not prevented the court from allocating a share of post-separation bonuses to achieve fairness between the parties, for reasons such as the disparity in future income, one party's earning potential and the parties' respective contributions. In H v H, Charles J ruled that the matrimonial property should be assessed at the date on which the marital partnership came to an end but made a "run-off" award so that the wife could make a smooth transition to independent living by awarding her with 1/3rd of the husband's income in the year following separation, 1/6th in the following year, and 1/12th in the third year. Whilst recognizing the wife's continuing contribution to the family in caring for the children (for which she is in receipt of child maintenance), the judge found that the post-separation bonuses were predominantly the product of the husband's "talents, energy and good fortune" (para 85).

k v l The case concerned the application of the sharing principle to non-matrimonial property. H sought a payment of £18m on the basis of the sharing principle. Bodey J's order at first instance had awarded him £5m to meet his needs. The parties were both Israeli and had been married for 21 years before separation in 2007. There were three children of the marriage. The wife's primary assets were shares in a family business; when the parties married in 1986 the shares were worth only £300,000; at the time of separation they were worth £28m; and by the time of the hearing were worth £57.4m. The shares represented virtually the entire wealth of the parties. However despite their wealth the parties' standard of living was "extraordinarily modest"; for example the former matrimonial home, near London, was worth only £225,000. It was therefore agreed that the £5m award exceeded the husband's needs.

Neither party had earned any income during the marriage but both had contributed equally to family life during the marriage. The husband argued that the departure from equality was, accordingly, discriminatory. Wilson LJ disagreed: the recognition of the wife's considerable unmatched financial contribution to the marriage was not discriminatory, rather it identified a substantive difference in contribution. Although the importance of the contribution may diminish over time, this will depend on the facts of the case, such as for example how the non-matrimonial property has been invested or mixed and whether the value of the matrimonial property is such as to diminish the significance of the initial contribution. Equally, "special contribution" and non-matrimonial property were quite different things and therefore the court's guidance in Charman as to the limit of the departure from equality did not apply. The appeal was dismissed. The court also unusually made an order imposing reporting restrictions, given the fact that the wealth of the parties had been kept from family friends in order to create a normal life for the children. Public knowledge of the details of the family finances would substantially, perhaps even grossly, affect the normality of the children's lives.

Phillips v Peace [1996] 2 FLR 230

Note: Provision for children may also be made under s15 and Sch.1 Children Act 1989. These provisions are most frequently relied on by unmarried parents, who are unable to make applications under the Matrimonial Causes Act 1973.

mesher v mesher

Parties owned matrimonial home in joint name. Wife wanted to remain in former home with children Court considered whether to transfer assets to wife Not appropriate: give wife house absolutely deprives husband of capital asset in which he has legitimate interest. Court recognised a joint tenancy, held on trust for sale n equal shares. The contingent interest was that the house wasnt to be sold until the youngest child was 17. The wife has occupation of the house until then. Then the proceeds would be split between the parties equally. more usual nowadays to delay sale until youngest child has finished full time or higher education. Not always satisfactory because future is often unknown, sale of property at some contingent time may not leave wife with sufficient capital to buy another home. Solution depends on circumstances of couple.

evans v evans

Post-marital conduct can be relevant Husband has been paying maintenance for 35 years and husband sought to vary the other She had been convicted of inciting others t murder him and she was sent to prison for 4 years This was behaviour that was inequitable to disregard and e didnt have to pay further maintenance

Prinsep v Prinsep [1929] P.225 Endorsed power that court has to vary settlements.

Settlement has to be defined as a 'nuptial/marriage' settlement -Defined as: any settlement but it has to be set up for the benefit of the parties in the capacities as husbands and wives, providing benefit for them as spouses. Annuities, insurance policies, endowment policies etc. JT is in effect a nuptial settlement

Attar v Attar No. 2 [1985] FLR 635

Short marriage, air hostess and oil sheikh Came back to England after honeymoon Cohabited between 14 june and 18 june and then it was over Court said that we should look to see what should be done to put her back in the position she would have been in had the marriage never taken place. She needed rehabilitative maintenance to adjust to coming back to London. She had been living abroad as an air hostess. Lump sum representing 2 years worth of salary

trippas v trippas

Substantial family business and was taken over after the parties separated but before divorce. Lump sum was justified because it compensated the wife for the expectation she would have had in the business had the marriage continued.

The parties were married in 1984 when they were both in their twenties. Upon getting married, the wife went to live with the husband in his cottage in Gloucestershire. The husband had studied rural estate management with the intention that he would be managing and inheriting the family estate. The family estate was purchased in the 1940s and comprised of a Grade II country mansion with 4 staff cottages, surrounded by 11 acres of gardens; 138 acres of grazing land/pasture and 1500 acres of farmland; a further 17 residential properties; a farm with farmhouse, 4 cottages and 350 acres of farmland; another 686 acres of farmland; a separate parcel of 102 acres of farmland; 4 commercial properties and 4 commercial units; an Equestrian Centre; a pub and another farm and 210 acres north of the main estate. This was in addition to antique family pieces and paintings. The husband became beneficially entitled to this from his grandparents in 1983, one year before the marriage. The estate was valued for the purposes of the financial remedy proceedings at a maximum of £35,888,000 gross. The net value, after CGT and costs of sale, amounted to £22.9 million. The total rent from the properties amounted to £451,169 per annum gross. The husband's management policy involved borrowing in order to maximise the investment into the properties which amounted to borrowings of £6.7 million, which increased annually. The parties had an exceptional and privileged standard of living throughout their 26 years of marriage. Baron J held that the estate, coming from the husband's family, was non-matrimonial property. However, the wife's requirements and long-term needs would be taken into consideration and it was accepted that the mansion house was the matrimonial home for most of the duration of the marriage. The parties also accepted that that, in theory, the sharing principle can apply to inherited assets as well as to assets acquired during the marriage as in Charman v Charman (No. 4) [2007] EWCA 503, [2007] 1 FLR 1246 at para 66. The judge accepted that the principles in Charman, Robson v Robson [2010] EWCA Civ 1171, [2011] 1 FLR 751 and P v P (Inherited Property) [2004] EWHC 1364, [2005] 1 FLR 576 were all relevant in this case. The dictum of Munby J (as he was then) in P v P (Inherited Property) was deemed to be of particular importance, namely that each case was to be analysed on its own terms and "[f]airness may require quite a different approach if the inheritance is a pecuniary legacy that accrues during the marriage than if the inheritance is a landed estate that has been within one spouse's family for generations and has been brought into the marriage with an expectation that it will be retained in specie for future generations. That said, the reluctance to realise landed property must be kept within limits."

Taking into consideration the lifestyle enjoyed by the family, the judge held that it would be "reasonable and fair" for the wife to be awarded £5.1 million (inclusive of stamp duty and legal costs) for her long-term housing needs and £300,000 furnishing costs. £150,000 per annum was the budget the judge ordered to be reasonable and £17,500 per annum per child by way of periodical payment whilst the two youngest children remained dependent. This taken into account, the judge ordered that there be an income fund for the wife of £3 million, with £293,000 for the wife's debts and £45,000 for the wife's car. The total amount awarded to the wife being £8,738,000. "This amount of capital represents 32.5% share in the net assets. It leaves the Husband with 67.5% of the assets (some £18 million) which is appropriate given the origin of the wealth. The award fairly meets the Wife's needs and it encompasses any right that she has to share the assets. I so state because, although my calculation is needs based, it does involve sharing asset which will be invaded to cover the award. In this case needs and the right to sharing are essentially the same."

robson v robson At the date of trial, the husband was aged 66 and the wife was 54. It had been a 21-year long marriage and they had 2 children aged 20 and 17. The husband's capital resources at the date of trial were valued at £22.3m, including an Oxfordshire estate worth £16m. This wealth was, to a large extent, inherited by the husband. The wife's resources were valued at £343,500. At first instance, Charles J had found that the parties' standard of living during the marriage had been excessive and reckless. He determined the wife's housing needs to be £5m and her income needs, with reference to the standard of living during the marriage, to be £140,000 p.a. Charles J capitalised the wife's income needs, together with provision for the wife's costs, at £3m. The wife was therefore granted a lump sum of £8m, spousal periodical payments at £140,000 p.a. until payment of lump sum and thereafter clean break, together with child periodical payments at £15,000 p.a. The husband appealed, arguing that the assessments of housing and income needs at first instance were excessive, that the judge had been wrong (a) to assess the wife's budgetary needs by reference to the standard of living where the wife was complicit in their profligate expenditure of the inherited wealth, and (b) to capitalize and impose a clean break where secured periodical payments would be the fairer solution. The husband sought to rely on new evidence that the Oxfordshire estate had in fact sold for £13m rather than £16m, that the wife had in fact spent £4.3m on housing instead of £5m, and that he was prepared to offer security in order to avoid a clean break.

The Court of Appeal (Ward LJ giving the lead judgment) held: (1) The award of £5m was, on the face of it, excessive given that the wife had actually re-housed herself for £4.3m. (2) In assessing the wife's income need the trial judge had failed to have any, or any sufficient, regard to the extravagant way the parties had depleted the inheritance indulgently to enhance their lifestyle beyond what was responsibly affordable. (3) The wife had established her need and was entitled to be self-sufficient especially since the husband had been so unreliable in meeting his responsibilities. No order for secured periodical payments would give her the true security of peace of mind. The Court of Appeal ordered £4.3m for the wife to re-house, £2m to meet her income need by way of capitalized maintenance and £600,000 for legal costs, making a total lump sum of £7m.

n v f The parties were married for 16 years and had 2 children. At the date of the marriage, the husband had assets worth £2.116m. On divorce, the total assets, including the husband's pre-acquired wealth, amounted to £9.714m. The central issue in the case was the way the pre-marital wealth should be treated. Mostyn J confirmed that the approach to pre-acquired wealth is fact specific and highly discretionary. The court had to balance unfettered discretion with the desirability of consistency and predictability of outcome. Pre-marital contributions represent an unmatched contribution made by one spouse. The longer the marriage, the more likely that contribution will fall to be shared between the parties. There are two schools of thought as to how pre-marital property should be reflected in an award for ancillary relief: the first is simply to adjust the percentage from 50%; the second is to identify the scale of the non-matrimonial property to be excluded and thereafter divide the matrimonial property in accordance with the equal sharing principle. At para 14, Mostyn J set out the process to be followed. This is the same approach as Wilson LJ adopted in Jones v Jones [2011] EWCA Civ 41: • The court should first decide whether the existence of pre-marital property should be reflected at all. This depends on questions of duration and mingling. • 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? • The remaining matrimonial property should then normally be divided equally. • The fairness of the award should then be tested by the overall percentage technique.

The Judge went on to consider the extent to which the assessment of the wife's needs could be informed by pre-marital property. He decided that needs cannot be assessed in isolation of factors which are key to the performance of the sharing principle, such as vast wealth, pre-nuptial contracts and pre-acquired wealth. In this case, it would be wrong for none of H's pre-marital wealth to be excluded from the sharing principle; the Judge excluded £1,000,000 from the pot and divided the remainder equally. This left the wife with 44.7% of the total assets. The Judge emphasised that the high percentage was due to the impact of the wife's needs; were it not for W's needs he would have excluded more, possibly the entirety of the husband's pre-marital wealth.

Wyatt v Vince [2015] UKSC 14 The parties married in 1981 and had one son. Ms Wyatt's daughter from a previous relationship was also treated as a child of the marriage. They separated in 1984. Neither had any money and they lived at times as new age travellers. The parties divorced in October 1992. As the court file had been mislaid, it was unknown whether a final financial order had been made. Lord Wilson agreed with the Court of Appeal's assumption that it was likely that there was no such order. After the divorce, in the late 1990s, Mr Vince's green energy business took off. He became a man of great wealth. In 2011, Ms Wyatt brought an application for financial remedy. Mr Vince (pictured) applied for it to be struck out under the then new rule 4.4 of the Family Procedure Rules 2010. In December 2012, a deputy High Court judge dismissed Mr Vince's strike-out application; however, Mr Vince appealed successfully to the Court of Appeal, who struck out Ms Wyatt's application

The Supreme Court unanimously allows the appeal. The court examines the jurisdiction under Rule 4.4 of the Family Procedure Rules 2010 to strike out an ex-spouse's application for a financial order. It can be inferred that the references to "no reasonable grounds" and "abuse of the court's process" in Rule 4.4 are intended to bear the same meaning as the equivalently worded strike-out provisions in the Civil Procedure Rules. The CPR also confer upon the court a further power to give summary judgment on the basis that the claimant or defendant has no real prospect of success and there is no other compelling reason why the case should be disposed of at a trial. However, there is no equivalent power of summary judgment in the 2010 Rules. When an ex-spouse applies for a financial order, the court has a duty under section 25(1) of the Matrimonial Causes Act 1973, s 25(1) to determine that application having regard to all the circumstances; this assessment is not apt for summary determination. The Court of Appeal was therefore wrong to insinuate a test analogous to summary judgment into the 2010 Rules.

twiname v twiname

The facts are set out above. The Court of Appeal confirmed that the court has jurisdiction to order a lump sum payment as much as 15 years after the original divorce. (The decision attracted much adverse comment in the media because of its disregard of the "clean break" principle.) Read more at Law Teacher: http://www.lawteacher.net/cases/family-law/financial-matters-on-divorce.php#ixzz42A0MbvFp

Smith v Smith [1975] 2 All ER 19

The need of the wife were dominated by the fact that they had an adult daughter with kidney problems. Mother would need accommodation for daughter to be cared for.

clutton v clutton Clutton v Clutton [1991] 1 FLR 242 W stated it is not fair to state that house is to b old if someone comes to live with me because it would encourage ex-husband to spy. The order was made regardless.

The order was made regardless.

k v l

The couple had married in 1983. It was the wife's second marriage and she had three children, who all went on to start their own families. Shortly after the marriage the wife inherited substantial assets from her father and the husband stopped working, supported by those funds. In 1987, they purchased a small property abroad in joint names. In 1993 they separated but reconciled subject to an agreement that he transfer his interest in their London home and also undertook not to seek to take advantage of the fact that her wealth was greater than his. In 2007 the sexual abuse was discovered, the couple separated and the husband went to prison. In the ensuing ancillary relief proceedings, the judge found that the wife's wealth was £4.3m and that the husband's assets amounted to the half-share in the overseas property. He also found that the husband stood to inherit about £100,000 from his mother in the foreseeable future. At first instance, counsel for the husband sought a total lump sum payment of £500,000 from the wife, on the grounds that though the judge was entitled to take the husband's conduct into account, his need for accommodation on release from prison required such funding. In the event the judge ordered that he be paid a lump sum of £100,000 in respect of the overseas property. In this application, counsel for the husband submitted that the judge's approach had been punitive and that the order for a contribution for costs from him was double-counting. Wilson LJ rejects those submissions, partly because "the husband's grave sexual misconduct within the family was far from the only factor which generated so small an award for him." The judge had attached significant weight to the 1993 promise and that "precluded the husband from being able to attach any significant weight to the further length of the marriage". The challenge on costs also failed as it was clear that the judge was only taking into account the conduct of the husband in relation to the proceedings.

M v M (Prenuptial Agreement) [2002] 1 FLR 654 Married in Vancouver and entered into a pre-nup before this. wife's legal advice was to not sign but she was pregnant and didn't want to cause problems They enjoyed a wealthy lifestyle They moved to England and marriage faltered. Husband abducted child back to Canada and divorce occurred. Husband was worth £7.5 mil. Husband had to pay wife £875,000 because of pre-nup and there was provision for child.

The court said that pre-nup was one of all circumstances to be taken into account.it would be unfair to husband to ignore it but unfair to the wife to hold her strictly to it. All the s25 factor taken into account.

Jones v Jones [2011] EWCA Civ 41

The parties married in 1996 and separated in 2006. At the date of marriage the husband owned a business with a value at that time of £2 million. At the date of separation the business was worth £12 million, but by the date of sale of the business in 2007 the value had increased and the husband sold the business with a net profit to him of £25 million. The husband was 58 years old and the wife 44 years old, the marriage did not produce any children but the parties had treated the wife's child from a previous marriage as a child of the family. The wife had received substantial financial support from her mother prior to the marriage and during it, including assistance with which she had purchased a home valued at £2.1 million which was not included in the list of assets for division. The evidence suggested that the wife would continue to benefit from this support into the future. At the date of the final hearing, having taken the legal costs of both parties into account, the total assets available for distribution amounted to approximately £25 million. The appeal was heard by Wilson LJ (who gave the lead judgment), Arden LJ and Wall LJ. The appeal allowed and the court held that Charles J had been right to include the increase in value of the business between 2006 and 2007 as part of the matrimonial acquest because that increase was due to the latent value of the business at the date of separation and not to a new venture.

B v S

The parties were married for 14 years and had two children aged 10 and 12. One of the issues in the case was the weight to be attached to an alleged agreement between the parties that they had adopted a matrimonial property regime of separate property that was made when they married in Catalonia. In addition, there was a further express separation of property agreement made in another country but the need for anonymity in the reporting of the case restricts the helpfulness of the comparison. However, Mostyn J does provide a helpful review of the type and form of pre-nuptial agreement with consideration of the Law Commission Consultation Paper No. 198 "Marital Property Agreements". In addition, the judge reviews his summary in Kremen v Agrest (No.11) (Financial Remedy: Non-Disclosure: Post-Nuptial Agreement) [2012] EWHC 45 (Fam) of the effect of Granatino v Radmacher [2011] AC534, SC. Additional consideration of V v V [2011] EWHC 3230 (Fam), Z v Z (No. 2) [2011] EWHC 2878 (Fam) and reproduction in the judgment of a critique on Catalan law leads the judge to a conclusion that the court may depart from the default position where it would be unjust to implement it and likely to be so when economic imbalance exists between the parties. In considering the applicable principles relevant to capital division, it is held that the principles of sharing and need are likely to be the most applicable and compensation is restricted to exceptional cases as exemplified in McFarlane v McFarlane [2006] 2 AC 618. Mostyn J concludes, however, that the law relating to an award of periodical payments is not so clear. In analysing the approach to such an award he states that simplicity and clarity are needed in this area just as much in the field of capital division. Save in the exceptional kind of case exemplified by McFarlane, a periodical payments claim should, the judge held, be adjudged (or settled), generally speaking, by reference to the principle of need alone.

charman v charman: Joint assets valued at hundred of millions. Wife awarded 40 mil of joint assets and family home. (48 mil). 37% of joint assets. She held 36 mil of assets in her own name. Married in 1976 He was 23 and she was 22, they had nothing. He was a clerk at Lloyds. By the time of divorce they had 2 children over 18 He had 5 successful businesses She never worked One had to apply the three strands but also in the spirit of s25. Equality as normally the starting assumption: assets would be divided up in equal proportions. After this, you look at circumstances to assess whether there should be a departure from that starting point. Now it is becoming more like a presumption of equality not just a principle. Equality between the parties doesn't always amount to fairness Sharing principle can apply to all assets but you are more likely to be able to depart from sharing if you have assets which are non-matrimonial not in joint name) if there is going to be a departure: the division of property is unlikely to be less than 45/55% or more than 66.6/33.3% The Process suggested by Potter P: 1.The computation stage- what is in the financial pot? 2. The distribution stage- three strands, s25, reasons for departing

The parties were married in 1976. Neither brought any capital into the marriage. The wife gave up work when she was expecting their first child. The husband worked in insurance and was hugely successful, amassing an enormous fortune. The marriage broke down and the wife issued divorce proceedings in 2004, followed by an application for a financial/property settlement. The wife's application was heard by Mr Justice Coleridge in February 2006. He valued the wife's assets at £8 million and the husband's assets at £123 million, making the total joint assets £131 million. The wife conceded that the husband's contribution (known as a "special contribution") had been of such significance as to justify a departure from equal division of assets and proposed a division of 55/45 per cent in the husband's favour. Mr Justice Coleridge agreed that the husband had made a special contribution, but felt that it entitled him to 63.5 per cent of the assets, with the wife getting the other 36.5 per cent (the husband's share was also slightly inflated because he was to take the higher risk assets). On this basis, Mr Justice Coleridge ordered the husband to pay to the wife a lump sum of £40 million, leaving her with a total of £48 million. The husband appealed. He felt that Mr Justice Coleridge had made insufficient allowance for his special contribution. He contended that the wife should have received a lump sum of, at most, £20 million. The Court of Appeal disagreed. Its single unanimous judgment was handed down by Sir Mark Potter, the then President of the Family Division. He reviewed, confirmed and added some clarity to the relevant law on the sharing principle and special contributions justifying a departure from equal division. In particular, he suggested guidance on the appropriate range of percentage adjustment to be made in cases in which the court is satisfied that a special contribution justified a departure from equality. He said that such a contribution should normally at least entitle the person who had made it to 55 per cent of the assets. However, it would be unlikely to entitle that party, after a very long marriage, to receive more than twice as much as the other party, and therefore the maximum that the 'special contributor' was likely to receive was two thirds, or 66.6 per cent of the assets. Mr Justice Coleridge's award lay very near the middle of that range, and the Court of Appeal considered that this was appropriate in the light of the scale of the husband's special contribution. Accordingly, it did not consider the award to be vulnerable to appeal, and the husband's appeal was therefore dismissed. Sir Mark Potter's judgment concluded with a call for a review of the law on determining financial settlements following divorce. Whilst cases such as White and Miller and McFarlane had provided some guidance, there was a need for the law to be reformed to provide greater clarity and certainty. Unfortunately, more than seven years later, that reform seems as far off as ever.

Kremen v Agrest [2012] EWHC 45 Wealthy Russian couple. Husband worth 13 mil. Married for 16 years Post-nup entered into in Israel provided that wife should only get 1.5 mil.

There hadn't been full disclosure and there hadn't been legal advice. Wife didn't know what she was signing and court could ignore it

SRJ v DWJ

There is no presumption in favour of a clean break provision in an ancillary relief claim. A nominal award of maintenance was appropriate where the wife's long dependency and continued responsibility for children made future earning capacity problematic. A dismissal of a claim for maintenance where the wife was relatively mature should not be expected. Fairness requires that the aspect of compensation should be taken into account by the court when exercising its statutory powers

miller, mcfarlene continued 1

This "equal sharing" principle. Marriage, it is often said, is a partnership of equals. This principle is applicable as much to short marriages as to long marriages: A short marriage is no less a partnership of equals than a long marriage. The difference is that a short marriage has been less enduring. In the nature of things this will affect the quantum of the financial fruits of the partnership.' 'In the case 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. With longer marriages: To this non-exhaustive list should be added, as a relevant matter, the way the parties organised their financial affairs.' ' a periodical payments order may be made for the purpose of affording compensation to the other party as well as meeting financial needs. indeed, to make an award by reference to the parties' future expectations would come close to restoring the "tailpiece" which was originally part of section 25: place the parties, so far as practical and, having regard to their conduct, just to do so, in the same financial position as they would have been had the marriage not broken down.' fairness does not require consideration of the parties' conduct unless inequitable to consider it. mcfarlene 'The parties' capital assets were insufficient to make an immediate clean break possible. the high level of the husband's earnings after the breakdown of the marriage was the result of the parties' joint endeavours at the earlier stages of his professional career. The wife gave up her career to devote herself to making a home for them both and for the children. 92 career foregone by the wife was a professional career as successful and highly-paid as the husband's. as primary carer of the three children, the wife continued to be at an economic disadvantage and continued to make a contribution from which the children and, indirectly, the husband benefited. lord nicholls ' In the present case a five-year order is most unlikely to be sufficient to achieve a fair outcome. Further financial provision of some sort will be needed, 'The amount of £250,000 substantially exceeds the wife's financial needs. CA: The wife, the court said, must invest the surplus sensibly, or take the risk that her failure to do so might count against her on an application for discharge of the order.'

Lambert v Lambert [2003] 1 FLR 139 £20 mil fortune W wanted half and got it During the course of the hearing Husband said he contribution revolved around the children and microwave All contributions to family life are valuable not just financial ones

Thorpe LJ: There must an end to the sterile assertion that a breadwinners contribution weighs heavier that the home one. She kept 50%

hanlon v hanlon Police officer and nurse, earning about the same. Husband had moved out and had been given free accommodation provided by police Shes in former matrimonial home with children House was worth £14000 and mortgage was £10,000

Transfer would be transferred to her absolutely. He would not pay payments and she would have to take responsibility for mortgage. Hes housed, she has nothing, she needed it for children.

RP v RP [2007] 1 FLR 2105

What is handed down by supreme court does not have to be taken as statuory provision. Coleridge J found that one of the sub-issues in the case was "whether the court should have special and extra regard to compensating the wife for the loss occasioned by her career break whilst living with the husband and now whilst bringing up the children". Coleridge J found that, [para 59-60] "The word compensation, which has been used frequently during this hearing, does not appear in the statute. Does it, I wonder, in the end, add anything to the concept of financial ...obligations and responsibilities which each of the parties has deriving from s25(b)? Obligations arise, surely, because of the parties contributions, equal but different, (including career sacrifice) at the beginning, during the marriage and beyond its end. Baroness Hale of Richmond has very successfully highlighted this as an underlying principle and reminded the courts of its importance in a given case but it is not new. Further it is neither possible nor desirable to break up, artificially, these ancillary relief claims into separate heads of claim as if they were actions for damages for personal injury. In this jurisdiction there is only one finite pot of resources which has to be divided between the two parties fairly by balancing their competing claims by reference to s25." He determined the case, having found that the wife's career was now back on its feet, by discounting compensation as a relevant factor and proceeded to decide the case on the basis of fairness having regard to each party's needs

Cowan v Cowan [2000] 2 FLR 192- Husband was 63 and wife 61. Divorced in 1989. Lived in council houses and had 2 children Husband started a new business and business grew. He saw an opportunity to invent the bin liner. Revolutionised refuse collection At the time of divorce he was worth 11.5 mil

Wife awarded 28% then increased to 38% on appeal on the basis that that was fair. 50% wouldn't be fair because the wealth was acquired from husbands business talent Equality can be departed from if someone made a 'stellar contribution' to the acquisition of wealth.

Wachtel v Wachtel [1973] 1 All ER 829

Wife can invest capital and pay off interest. Reduce bitterness between ex spouses: ex-spouses do not have to face the sting of maintenance monthly payments. Parties can regard the issue closed. Lord denning: ' when a marriage breaks up there will henceforth need some woman to looo afterhim.. and will have greater expense'

Griffiths v Griffiths [1974] 1 WLR 1350

Wife could find work if she wanted it and income will be assessed at the amount she would have been earning

Hardy v Hardy [1981] FLR 321

Young man worked in family racing stables. Court looked at what he would be earning on open market and took it into account.

Miller, Mcfarlene continued miller husband appeal dismissed: 'the accretion to the husband's wealth during the marriage, as a result of work he did during the marriage, was very substantial indeed. Although the marriage was short, the matrimonial property was of great value. The gain in the husband's earned wealth during the marriage was huge. Secondly, the judge was entitled to regard the high standard of living enjoyed by the parties during the marriage as a key feature of this case. That was not a standard of living the wife would be likely to achieve for herself.' In the Miller case, the needs generated by the relationship are comparatively small. The wife will be able to re-establish herself in life within a relatively short time. But she was for some time the fiancée and then the wife of a very rich man. Much of that wealth accrued during the marriage. 158 That is undoubtedly more than she would need to get herself back to where she would have been had the marriage not taken place. The provision should enable a gentle transition from that standard to the standard that she could expect as a self-sufficient woman. But she is also entitled to some share in the assets. The couple had two homes and there is no reason at all why she should not have a share in their *667 combined value, together with other assets obviously acquired for the benefit of the family. She is also entitled to some share in the considerable increase of the husband's wealth during the marriage. Had the yardstick of equality been applied to all the assets which accrued during the marriage, she would have got much more than she did.

baroness hale Need had become "reasonable requirements" and thus more generous to the recipient, but it was still a limiting factor even where there was a substantial surplus of resources over needs' 'an equal partnership does not necessarily dictate an equal sharing of the assets. Although one party had earned more and thus contributed more in purely financial terms to the acquisition of those assets, both contributed what they could, and the fair result was to divide the product of their joint endeavours equally. 'If the assets are not "family assets", or not generated by the joint efforts of the parties, then the duration of the marriage may justify a departure from the yardstick of equality of division. ' If capital has been equally shared and is enough to provide for need and compensate for disadvantage, then there should be no continuing financial provision. In the McFarlane case, there has been an equal division of property, but this largely consisted of homes which can be characterised as family assets. This was not enough to provide for needs or compensate for disadvantage. The main family asset is the husband's very substantial earning power, generated over a lengthy marriage in which the couple deliberately chose that the wife should devote herself to home and family and the husband to work and career. The wife is undoubtedly entitled to generous income provision for herself and for the sake of their children, including sums which will enable her to provide for her own old age and insure the husband's life. She is also entitled to a share in the very large surplus, on the principles both of sharing the fruits of the matrimonial partnership and of compensation for the comparable position which she might have been in had she not compromised her own career for the sake of them all. 156 Accordingly, I would allow Mrs McFarlane's appeal and restore the order of the district judge.'

Burgess v Burgess [1996] 2 FLR 33

baroness hale: solicitor and doctor were earnings similar. No children. She split the assets 50:50. She was appealed on the basis that she hadn't gone through s25. Appeal lost but it was noted that you have to go through the process of thinking about s25.

Sharp v sharp - family courts appear to be acting inconsistently

court stated that even cases with very similar facts might be decided justifiably in different ways. What is important is that the judge applies s25 afresh from the beginning in every single case. Statutory structure is crucial. In the past 1/3rd joint incomes and a sum for the children was often taken as a starting point for assessment, though it may never have been appropriate in the case of the very poor or very rich. Now (in the wake of White and Miller, McFarlane) the courts have moved in favour of an inference that the starting point should be that the home and assets should be divided equally between the parties, subject to the influence of all the section 25 factors.

foster v foster

in which the wife was award 61% of the assets of the marriage as she had contributed more at the outset. Those assets built up during the course of the marriage were effectively divided equally.

miller, mcfarlene In the first case the husband was a successful and wealthy fund manager. Before the marriage he had agreed with a business associate that once he was free of a non-competition agreement with his current employers he would move to a new company which was about to be set up. During the marriage that move came to fruition and the husband's wealth increased substantially. After less than three years the marriage broke down and the wife claimed ancillary relief. The judge decided that the husband had been to blame for the breakdown of the marriage and that it would be unfair to the wife for him to ignore that finding. He awarded the wife the former matrimonial home and a lump sum of £2.7m to generate income. The total award was worth £5m. The judge's decision was upheld by the Court of Appeal. The husband appealed. In the second case the husband and wife were both professionally qualified and had pursued lucrative careers until they agreed that the wife should give up work to concentrate on raising their children. They divorced and the wife applied for ancillary relief. A division of the family's capital was agreed but the capital was insufficient to effect an immediate clean break. The wife sought a periodical payments order. The income of the husband, a partner with a leading firm of accountants, exceeded the parties' expenditure by over £500,000 a year and his income was expected to continue to rise until his retirement. The wife quantified her spending needs at £128,000 a year. The district judge ordered the husband to make periodical payments of £250,000 a year to the wife during their joint lives. On appeal, the judge reduced the payments to £180,000 a year on the ground that larger payments would have allowed the wife to accumulate further capital by saving that which was in excess of her needs, which would have subverted the principle that an award of capital was made once only and that the purpose of periodical payments was maintenance. The Court of Appeal allowed the wife's appeal and restored the order for periodical payments of £250,000, allowing her to accumulate capital, but fixed the order for a term of five years. The wife appealed, claiming she was entitled to a joint lives order.

lord nicholls: there can be different views on the requirements of fairness in any given case. The court must consider the feasibility of a "clean break". Beyond this the courts are largely left to get on with it for themselves. The courts are told simply that they must have regard to all the circumstances of the case. 'When the marriage ends fairness requires that the assets of the parties should be divided primarily so as to make provision for the parties' housing and financial needs, taking into account a wide range of matters such as the parties' ages, their future earning capacity, the family's standard of living, and any disability of either party. Most of these needs will have been generated by the marriage, but not all of them. Needs arising from age or disability are instances of the latter.' 'compensation. This is aimed at redressing any significant prospective economic disparity between the parties arising from the way they conducted their marriage. Although less marked than in the past, women may still suffer a disproportionate financial loss on the breakdown of a marriage because of their traditional role as home-maker and child-carer. 14 When this is so, fairness requires that this feature should be taken into account by the court when exercising its statutory powers. 15 Compensation and financial needs often overlap in practice, so double-counting has to be avoided. But they are distinct concepts, and they are far from coterminous.

UL v BK [2013] EWHC 1735

per Mostyn J at para 56 Para 56- explains what practitioners should do if wife has info that she shouldn't have.

brett v brett wife petitioned for divorce on grounds of husbands cruelty. he wouldnt give her a get. she asked for a large lump sum to compensate for this refusal lord nichols in White v white ' A Duxbury calculation is, no doubt, useful as a guide in assessing the amount of money required to provide for a person's financial needs. It is a means of capitalising an income requirement. But that is all. As I have been at pains to emphasise, financial needs are only one of the factors to be taken into account in arriving at the amount of an award. The amount of capital required to provide for an older wife's financial needs may well be less than the amount required to provide for a younger wife's financial needs. It by no means follows that, in a case where resources exceed the parties' financial needs, the older wife's award will be less than the younger wife's. Indeed, the older wife's award may be substantially larger.'

phillimore LJ husband was using get as a bargaining tool against wifes maintenance demands. court was prepared to coerce husband into giving the get wilmer LJ 2 lump sums £25000 within 14 days and the balance of £5000 3 months from today if by that time the husband has not granted the get. annual maintenance will be £2000. if the husband gives the get, the annual payent should be increased o £2250 and he does not have to pay £30,000

hyman v hyman 'all the circumstances of the case' pre nuptial and post marital agreements

set the precedent: Any agreement entered into by husband and wife is illegal insofar as it purports to oust the jurisdiction of the court. Court isnt bound by agreements. How much weight is it going to give them? Law commission thought ethese agreements should be given some weight in1998. Court denied to take into account agreement to deal with financial arrangements. Case law supports this

In P v P (Inherited Property) [2004] EWHC 1364 Fam (2005) 1 FLR 576

the husband and wife had spent 19 years of their married life together working on the farm which the husband had inherited from his family. The wife played a significant part in the physical life of the farm. It was acknowledged that the farm was more than a source of income to the husband: it was his whole life. The wife's case was that she would rather avoid a sale of the farm but the financial relief she was seeking would almost certainly necessitate the sale. At the hearing she sought £930,000 representing about 40% of the assets on the basis of an equal division with a discount to take into account the fact that the bulk of the finances were inherited. In the alternative she sought £770,000 being a housing fund and a Duxbury fund. The husband offered her £340,000 which he proposed to raise against the farm. Mr Justice Munby held firstly that inherited property was to be taken into account when considering the assets of the parties but while sometimes the fact that the property was inherited might count for little, on other occasions that fact might be of the greatest significance. "Fairness might require quite a different approach if the inheritance was a pecuniary legacy that accrued during the marriage than if the inheritance were a landed estate that had been within one spouse's family for generations and had been brought into the marriage with an expectation that it would be retained in specie for future generations. That said, the reluctance to realise landed property had to be kept within limits." He made an award based upon the wife's reasonable needs for accommodation and income, not because that was the principle that applied in all farming cases, but because of the circumstances of the case referred to in the citation above. Referring to Lord Nicholls speech he emphasised the importance of his observation that "The judge 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." There is therefore inherited property and inherited property. What is fair will depend upon all the circumstances.

k v k (widows pension) No longer a widow should ex-husband die. Would deprive her of pension protection- loss of pension rights. If ex-husband is in a position to compensate for financial losses, wife cannot compensate.

where there was prima facie grave financial hardship sufficient to merit the dismissal of the petition, granting a decree nisi leaving the wife to the protection of s 10 would not ensure that she was not subject to grave financial hardship. The only course would be for the petition to be adjourned to enable the husband to make further proposals likely to persuade the wife that it would be in her interests to give up her pension rights and abandon her opposition to the divorce