Ref: 2019NIMaster 4
Neutral Citation No:  NIMaster 4
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
The income of the parties:-
• The proceeds of sale of the parties' former matrimonial home
• The parties each have an eighth share in a Belmont Road property
• The Husband's Platinum Financial Group pension.
• The Wife's Old Mutual Wealth Pension.
• The Wife's Friends Life/Aviva Pension.
 The Wife meanwhile gave evidence that the rent for the Holywood Road property was received by her parents. However the Husband asked the court to take notice of the fact that thereafter regular payments were made by the Wife's parents to the Wife's account. On occasion the payments seemed similar to the advertised rental price for the property.
• The Wife's partner's property in Donaghadee.
Is the Company "an after acquired asset"?
"However, to repeat, even when the court is able to fix a value this does not mean that that value has the same weight as the value of other assets such as, say, the matrimonial home. The court has to assess the weight which can be placed on the value even when using a fixed value for the purposes of determining what award to make. This applies both to the amount and to the structure of the award, issues which are interconnected, so that the overall allocation of the parties' assets by application of the sharing principle also effects a fair balance of risk and illiquidity between the parties."
"the need to address this issue when the court is deciding how to exercise its discretionary powers so as to achieve an outcome that is fair to both parties" and added that "the assessment of the weight which can be placed on a valuation is not a mathematical exercise but a broad evaluative exercise to be undertaken by the judge."
"This was why Holman J was entitled in Robertson v Robertson to reject the "accountancy" approach, not only because it seemed unfair to the husband, but because he did not consider that this fairly reflected the relevant considerations in the "overall exercise of (his) discretion",
That was a case which concerned the development of trading companies and Moylan LJ felt that Holman J's observations apply with particular force in such circumstances.
"self-evidently, the paper value of an asset may not always match its current realisable value…….for example when valuing a business, the court must apply common sense and allow a generous margin for uncertainty."
"I am quite sure that even now in most cases that is the correct date when the valuation should be applied. But I think the court must have an eye to the valuation at the date of separation where there has been a very significant change accounted for by more than just inflation or deflation…."
The Wife's Cohabitation with L
• Should either party's conduct be reflected in a costs Order?
 I have already expressed the court's considerable disappointment about the rising costs and unnecessary delay in this case.
The proposals for resolution:-
• Each party receives 50% of the proceeds of the FMH after discharge of the loans which, he said, are to be repaid to the parties' respective parents.
• The Wife transfer her one eighth interest in the Belmont Road property to the Husband.
• Not a maintenance case.
• Each party receives 50% of the proceeds of the FMH with repayment to her own parents but without any repayment of loans to the Husband's parents. (This changed during her evidence when the Wife accepted that the Husband's parents should be repaid the £4000 paid by them).
• Wife transfers her interest in the Limes to the Husband and he discharges the joint over-draft. (Wife acknowledges Husband has been paying mortgage on the property since the separation).
• 40% of the Husband's company.
• 20% of the Husband's alleged 50% interest in his post acquired home at Oakland Avenue.
• Ignore pensions as modest.
The Wife had costs £85,000.00 + VAT. The Husband had costs of £60,000.00 + VAT. It should be obvious that the costs are wholly disproportionate to the assets in the case.
"The following from the case law appear to be of general application:
1. There is in operation what might be described as a non-discrimination principle as between the roles performed by husband and wife. The object rather is to achieve a fair outcome as between the parties.
2. Equality of division is a useful yardstick it should only be departed from if there is good reason for doing so. This however does not mean that there is a presumption in favour of equal division.
3. In seeking to achieve fairness between the parties the court will keep in mind the needs of the parties; the fact that compensation may be required to address any significant prospective economic disparity due to the manner in which the marriage was conducted; and the idea of marriage is a partnership of equals.
4. To a greater or lesser extent, all of the above, together with all other relevant factors, will need to be considered in the particular case the court is dealing with."
(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;
(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
(c) the standard of living enjoyed by the family before the breakdown of the marriage;
(d) the age of each party to the marriage and the duration of the marriage;
(e) any physical or mental disability of either of the parties to the marriage;
(f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
(g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;
(h) in the case of proceedings for divorce of nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
"More difficult are business or investment assets which have been generated solely or mainly by the efforts of one party. The other party has often made some contribution to the business, at least in its early days, and has continued with her agreed contribution to the welfare of the family…. But in these non-business partnerships, non-family assets cases, the bulk of the property has been generated by one party. Does this provide a reason for departing from the yardstick of equality?
"..there was a reason to depart from the yardstick of equality because those were business assets generated solely by the husband during a short marriage. Whether one puts this as a result of the contacts and capacities he brought to the marriage or as a result of the nature and source of the assets generated… it comes to the same thing"
"We have been taken helpfully to the landmark cases of White v White  1 AC 596 and Miller v Miller; Mc Farlane v Mc Farlane  UKHL 24;  2 AC 618. These cases do not establish any rule that equal division is the starting point in all cases. On the contrary, the starting point in all cases is the financial position of the parties and section 25 MCA 1973: see Sir Mark Potter P in Charman v Charman  EWCA Civ 503, at paragraph 67. And in all cases the objective is fairness, which requires an individual assessment of each case: see White per Lord Nicholls at 604, and Miller per Lord Nicholls at paragraph 9, and Baroness Hale at paragraphs 134 & 136"
" In the instant case, both the district judge and the circuit judge, in my judgment, mistakenly sought to give effect to what they wrongly thought to be the need to achieve equality. In so doing, their decisions were plainly wrong and the outcome was, as a consequence and in each case, unfair. What this court proposes to put in its place is, in my view, both pragmatic and fair.
I would, accordingly, warn the legal profession against regarding this case as a precedent. In every case the court must ask itself the two questions: (1) is the outcome fair in all the circumstances of the case? and (2) is it in any way discriminatory? Of course, the court must follow White and look at the extent to which the court has departed from equality. But in my judgment, this latter exercise is a check: the primary objectives remain fairness and an absence of discrimination.
When that approach is applied to the order proposed by Hughes LJ, the answer seems to me to be clear. The result is plainly fair. It recognises both the source of the family's wealth, and the contributions past, present and future made and to be made by each. It does not discriminate. It departs from equality, but it remains fair."
"The balance of the authorities support an approach which permits the court in appropriate circumstances to identify an asset as a non-marital asset, or part of an asset being identified as a non-maritalasset. It seems to me that ultimately it is fact specific although the shorter the marriage, in practice, the easier it may be to identify a non-marital asset and the longer the period of the marriage and the greater the extent to which the asset has a mingled character, the harder it may be to identify it."
"If the court has not been able to make a specific factual demarcation but has come to the conclusion that the parties' wealth includes an element of non-matrimonial property; the court will also have to fit this determination into the section 25 discretionary exercise. The court will have to decide, adopting Wilson LJ's formulation of the broad approach in Jones, what award of lesser percentage than 50% makes fair allowance for the parties' wealth in part comprising or reflecting the product of non-marital endeavour. In arriving at this determination, the court does not have to apply any particular mathematical or other specific methodology. The court has a discretion as to how to arrive at a fair division and can simply apply a broad assessment of the division which could affect "overall fairness" This accords with what Lord Nicholls said in Miller and, in my view, with the decision in Jones.
 Finally, I would repeat that fairness has a broad horizon. I recognise, of course, the need for clear guidance and principles when the court is given a discretion as wide as that contained in section 25 of the 1973 Act. Such clarity not only assists judges when determining financial claims but also enables those seeking to resolve the consequences of their separation and divorce, as it has been described, "to bargain in the shadow of the law", in Matrimonial Property, Needs and Agreements 2014 (Law Com 343) paragraph 3.6. However, this should not lead to the imposition of constraints which are not needed to achieve, and which deprive the court of the flexibility required to achieve, a fair outcome."
1. The parties shall each receive 50% of the balance proceeds of sale of the former matrimonial home after discharge of the £1500 debt owed to the Wife's parents and the £4000 debt owed to the Husband's parents.
2. The Wife shall transfer her interest in the Belmont Road property to the Husband in return for the Husband indemnifying the Wife against all liability for the joint over draft.
3. The Husband shall pay to the wife the sum of £120,000 within 2 years as follows: He shall pay £30,000 within six months hereof, a further £30,000 within 12 months hereof, a further £30,000 within 18 months hereof and the final £30,000 within 24 months hereof.
4. The parties shall otherwise retain all assets held by them including their respective pensions as their own absolutely.
I so order.