FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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M S M |
Applicant |
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A J R M |
Respondent |
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Mr Martin Pointer QC and Mr Justin Warshaw (instructed by Messrs Sears Tooth) for the Respondent Husband
Hearing dates: 11 to 15 October 2004
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Crown Copyright ©
Mr Justice Singer:
An outline of the application
Some observations concerning the hearing
[32] I come then to the final point, that the judge's approach to the duration of the marriage was flawed. Mr Pointer's argument, which is lucidly presented, goes thus. The judge considered that there were three respects in which the conduct of the husband was relevant to the quantification of the wife's lump sum. One of those was the circumstances in which the marriage had broken down. The judge was highly critical of the husband in this regard. He held that his association with B was the major contributory factor to the breakdown of the marriage, and that the husband's attitude to his misconduct merely demonstrated his lack of insight into the distress that it would inevitably cause the wife. The judge went on to say at 31:
'However, taking all this into account, in my view it is not appropriate to increase the award which the court would make because of the husband's bad conduct in this regard. Rather, I see it as a significant counterbalancing factor to the point made on behalf of the husband that this was a short marriage.'
[33] Mr Pointer says, quite persuasively, that this is in effect a mechanism for increasing the wife's award by the back door in reliance on the husband's conduct. He says that if she is not to be assessed as having an entitlement on the foundation of a 4-year marriage, on what greater length of marriage is she to be assessed?
[34] The answer to that seemingly well-developed submission is, in my opinion, this. A judge has to do fairness between the parties, having regard to all the circumstances. He must be free to include within that discretionary review the factors which compelled the wife to terminate the marriage as she did. The point was essentially taken as a defensive shield to the reliance upon the duration submission. There must surely be room for the exercise of a judicial discretion between the pole of a wife who is driven to petition by the husband's unfeeling misconduct and that of a wife who exits from a marriage capriciously and for her own advantage. It seems to me that the judge was doing no more than taking his bearings as to where he stood along that path.
The development of H's business career and his wealth
The circumstances of the N Ltd share acquisition
Other properties
The relevant length of the parties' relationship
Other relevant section 25 factors
The approach to be applied in short but wealthy marriage cases
'Inherited money and property
I must also mention briefly another problem which has arisen in the present case. It concerns property acquired during the marriage by one spouse by gift or succession or as a beneficiary under a trust. For convenience I will refer to such property as inherited property. Typically, in countries where a detailed statutory code is in place, the legislation distinguishes between two classes of property: inherited property, and property owned before the marriage, on the one hand and "matrimonial property" on the other hand. A distinction along these lines exists, for example in the Family Law (Scotland) Act 1985 and the (New Zealand) Matrimonial Property Act 1976.
This distinction is a recognition of the view, widely but not universally held, that property owned by one spouse before the marriage, and inherited property whenever acquired, stand on a different footing from what may be loosely called matrimonial property. According to this view, 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.
Plainly, when present, this factor is one of the circumstances of the case. It represents a contribution made to the welfare of the family by one of the parties to the marriage. The judge should take it into account. He should decide how important it is in the particular case. The nature and value of the property, and the time when and the circumstances in which the property was acquired, are among the relevant matters to be considered. However, in the ordinary course, this factor can be expected to carry little weight, if any, in a case where the claimant's financial needs cannot be met without recourse to this property.'
'The Judges must remain focused on the statutory language albeit recognizing the need for evolutionary construction to reflect social and economic change. The statutory check list and the overall circumstances of the case allow the judge to reflect factors which are said to be inherent in either the entitlement model or the compensation model. But to adopt one model or another or a combination of more than one is to don a strait-jacket and to deflect concentration from the statutory language. Clearly in the assessment of periodical payments as of capital provision, the overriding objective is fairness. Discrimination between the sexes must be avoided.'
'The duration of the marriage will obviously be relevant in cases where one party's earning capacity may have been seriously affected by a long period devoted to home making and child rearing, but [counsel for the wife] eventually had to accept that where a substantial surplus had been generated by their joint efforts, it could not matter whether they had taken a short or a long time to do so'
The Award