Strand, London, WC2A 2LL
B e f o r e :
| Renzo Emilio Ernesto Rossi
|- and -
|Anna Maria Margherita Rossi
Michael Glaser (instructed by Streathers ) for the Respondent/First Defendant
Dominic Brazil (instructed by Streathers ) for the 2nd Defendant
Hearing dates: 6th– 14th June 2006
Crown Copyright ©
Nicholas Mostyn QC:
Another way in which the judgment is criticised is that it is said that the judge was wrong to take into account that the husband's fortune had accrued to him since the parting. Again, I think that that is a proper circumstance to pay regard to. It was never suggested in this case, as it was in Jones v Jones, that the position crystallised at the time of the parting and that thereafter any change in the husband's means was irrelevant. The increase in the husband's means is plainly relevant; but it is also, in my view, relevant to remember that it is something which has happened since the parting. And what is of much more importance here is that it is not merely something which has happened since the parting: it is something which has been brought about by the husband in co-operation and partnership with Miss Capozzi, who has indeed played a direct part in the business in which he has been engaged and which in the past has been the main source of his income which has provided the capital which has enabled substantial assets to accrue to the husband and Miss Capozzi in the shape of premises which they are now able to let at a quite comfortable rent.
Mr Raynor also urges me to take into account the huge increase in turnover of the X group since the separation. He says that the real increase in the value of X has only occurred since that date and so in relation to any share the wife notionally would have in that asset it should be discounted. He says from a half to a third to reflect the fact that she made no contribution to it after separation.
Again, I think there is intrinsically some merit in this argument in this particular case but it needs to be approached with very great caution. There is no doubt that a glance at the figures reveals a very significant increase in the turnover of the businesses from 1997-2001 and this reflects directly on the value of the companies. Indeed, in relation to Z as it has been pointed out, it was not even in existence at the time of the separation. There is indeed a four-fold increase in turnover overall since the date of the separation and that is attributable to more than just natural price inflation.
Mr Mostyn urges me to reject this argument completely because, as he rightly points out, traditionally these applications have always been approached on the basis of the values existing at the date when the hearing takes place.
I am quite sure that even now in most cases that is the correct date when 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; natural inflationary pressures on particular assets, for instance, the value of a house moving up or down in the housing market.
In this case the increase in value is attributable to extra investment of time, effort and money by the husband since separation and I do take into account the exceptionally steep increase in the turnover figures since the date of the separation. However, having done so it must be put in the context of the wife's continuing contribution too which similarly did not cease at the date of separation. She too has continued to play the valuable part that she had done throughout the marriage, in looking after the home and the children.
Mr Mostyn asked the hypothetical question: what would the position be if the value had similarly declined significantly since the date of the separation? In my judgment that too, in an appropriate case, could be a factor to be taken into account, particularly perhaps where the decline was as a result of action or inaction by the paying party. But that is not the situation in this case and I am not making a statement of general application or anything of that kind.
 All the above considerations are capable of inclusion in a review of the respective needs, responsibilities and/or contributions of the parties. They cover three of Mr Pointer's four submissions summarised in  above. The third, namely that much of the husband's fortune was generated in the 6 years post-separation, receives no reflection because in my opinion it is inherently fallacious. The assessment of assets must be at the date of trial or appeal. The language of the statute requires that. Exceptions to that rule are rare and probably confined to cases where one party has deliberately or recklessly wasted assets in anticipation of trial. In this case the reality is that the husband traded his wife's unascertained share as well as his own between separation and trial, particularly committing those undivided shares to the investment in Baco. The wife's share went on risk and she is plainly entitled to what in the event has proved to be a substantial profit. If this factor has any relevance it is within the evaluation of the husband's exceptional contribution.
Mance LJ (as he then was) stated:
(b) The relevant date at which to consider the parties' assets
 Mr Pointer submits that the court should look at the nature and extent of the assets in 1994 when the parties finally separated, or should at least take account of that separation and of the substantial subsequent increase in assets due, in particular, to the take-over of HD by Baco in 1997 and Baco's subsequent disposal in 2000. This increase was also, he submits, a result of Mr Cowan's business acuity. He further submits that at trial it was irrelevant and unnecessary to go into this aspect; Mr Cowan and his advisers were, on the then state of the law, justified in assuming that Mrs Cowan's claim could be effectively restricted by reference to her (reasonable) requirements. Only since White has the relevance of extra assets emerged, and the court should allow investigation of the time at which and reasons for which they emerged, by directing a further hearing.
 I start with Mr Pointer's basic submission that the date of separation represents a cut-off date. I am unable to agree with it. I note that s 25(2)(a) itself requires the court, when exercising its power to make among other things a property adjustment order, to have regard to, inter alia:
'... 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 ...' (emphasis added)
 Further, the date of the exercise of the court's power is not only accepted to be the traditional date but is, as it seems to me, also the natural date in a case such as the present. Here the parties have lived apart, either content or obliged to wait before any divorce. The bulk of the assets was in the meantime the husband's and under his control. He could do with it as he wished. She had no opportunity to use the assets or to increase them in the meanwhile. If the husband lost the moneys, the wife would suffer. If he added to them, one might expect the wife to benefit.
 We were referred to reasoning of Coleridge J in N v N (Financial Provision: Sale of Company) ( 2 FLR 69, 77), where he thought that there was 'intrinsically some merit ... in this particular case' in an argument that he should 'take into account the huge increase in the value of the X group since the separation'. But Coleridge J went on to say that he was quite sure that even now in most cases the date of the hearing was the correct date of valuation. It was only 'where there has been a very significant change accounted for by more than just inflation or deflation' that he thought that 'the court must have an eye to the valuation at the date of separation'. The crux of his thinking appears in the next paragraph, where he said (at 78):
'In this case the increase in value is attributable to extra investment of time, effort and money by the husband since separation and I do take into account the exceptionally steep increase in the turnover figures since the date of the separation.'
 What Coleridge J was doing was not undertaking the whole valuation exercise at a different date from that prescribed, as I see it, by the statute as well as by tradition, but taking into account, as a potentially relevant factor, that it was only by virtue of the husband's extra work and money that the 'huge increase' in value between separation and hearing had occurred. That links with the issue to which I have to return, to what extent, if any, is it now relevant to seek to evaluate the contribution made by either party to the overall wealth as at the date of the hearing. If this is relevant at all, then it may be that one party's special skill in accumulating assets will achieve some added weight as a factor if it occurs after separation, but before any divorce or financial hearing. This may be so, despite the countervailing consideration to which I have already adverted, which applies where such a party is in effect trading with and risking the wife's as yet unascertained part of the overall assets existing at separation.
This graph shows that approximately US$5m (in the value of money today) was accumulated during the period of estrangement. This was a period of steep accretion of capital. The amount accumulated is about 20% of the total gross assets as recorded in the final spreadsheet. Of course, H cannot claim sole credit for money accumulated in the period of separation as some of the increase will be attributable to natural capital growth of existing funds. I will deal below with how this should affect my award.
And I went on to find that:
 I have already found that during the period of estrangement the assets grew by a not insignificant amount: it would seem to be about £2.4m of the £12m. It is impossible to gauge what proportion of this amount is referable to natural capital growth and what was derived from savings made from work done by H when the parties were separated. But certainly to some significant extent H made during this period a contribution unmatched by any comparable contribution by W.
 In this case, the post-separation accrual does not arise from the trading of capital which existed at separation, rather it has accrued from the husband's own hard work post-separation, albeit that part of his bonus is referable to a scheme that was 'invented' during the marriage.
 Moreover, the bonus is also due to the husband's personal work in fulfilling ABC Co's current policy of developing its overall business. This takes up about 50% of his time albeit that it is not currently profitable. Such undefined part of his bonus as is referable to this aspect cannot be seen as relating to his earlier 'invention'.
 These factors are relevant and I take them fully into account.
 The assets that have been built up since the parties have separated fall to be considered in this case because the litigation has not been unduly delayed and the parties have been financially linked throughout. In addition, the husband failed to make adequate interim provision.
 In all the circumstances of this case, the fair outcome is an equal division of all the assets in the schedule which appears at Appendix 1. …
 The sheriff who granted decree of divorce in Wallis v Wallis 1992 SC455 made an order for the transfer by the wife of her half share in the matrimonial home to the husband as part of the division of the matrimonial property. The Court of Session held that the effect of s 10(3)(b) of the 1985 Act was that the whole of the wife's share of the increase in its value after the date of separation which passed to the husband as a result of the sheriff's order had to be left out of account in the computation of the amount of the matrimonial property that determined how much of it was to be paid by him to the wife. Dr Eric Clive, the principal architect of the legislation and a Scottish Law Commissioner said that the decision was wrong ('Financial Provision on Divorce—A Question of Technique' 1992 SLT (News) 241). Professor Joseph Thomson, then Regius Professor of law at Glasgow University, said that it was right ('Financial Provision on Divorce—Not Technique but Statutory Interpretation' 1992 SLT (News) 245). When it came here on appeal your Lordships' House affirmed the decision of the Court of Session: Wallis v Wallis 1993 SC (HL) 49.
. The effect of the amendment made by section 16 of the Family Law (Scotland) Act 2006 is that property transferred to one of the spouses by order is now to be valued, unless otherwise agreed, at the date of the making of the property transfer order, or, in exceptional circumstances, such date as the court shall determine: see Joe Thomson's general note on this section in Current Law Statutes. But this amendment leaves untouched another problem which was mentioned in Wilson v Wilson, 1999 SLT 249. At p 253C-D Lord Marnoch drew attention, as he had done previously in Latter v Latter, 1990 SLT 805, to the fact that the definition of matrimonial property was capable in other ways, on occasion, of producing very real injustice. He thought it had done so in that case, where much of the wealth created during the marriage was vested in a farming company and the husband's shareholding in the company was excluded from the matrimonial property because it had been either held by him prior to the marriage or inherited by him from his father.
 Sixthly, if account is taken of the increase in the value of the parties' assets during the marriage (the matrimonial acquest), a question may arise about the date up to which one should measure it. Should this be up to date when the parties ceased effectively to live as married partners (here April 2003), as Mr Mostyn considered in his judicial capacity in GW v. RW (Financial Provision: Departure from Equality) at paragraph 34? Or should it be up to a later date such as the date of trial, or even, in a case where an appellate court thinks it right to re-exercise the discretion, up to the date of the appellate decision? Reference was made by Mr Mostyn to my remarks in Cowan v. Cowan  Fam 97, paragraphs 130-135. The matters to which the court must have regard under section 25 include several which exist or appear likely as at the date the court has regard to them (cf section 25(2)(a), (b), (f) and (h)). Others of the listed matters require the court to look back at the past (e.g. section 25(2)(c), (f) and (g)). To the extent that the focus is on the matrimonial acquest, the period during which the parties were making their different mutual contributions to the marriage has obvious relevance. The present may be viewed as a case (paralleling the then unreported decision of Coleridge J in N v. N (Financial Provision: Sale of Company)  2 FLR 69 to which I referred in Cowan v. Cowan) where the increase in value of the New Star shares between separation in April 2003 and trial in October 2004 or judgment in April 2005 was contributed to by the husband's further investment of time and effort, independently on its face of any contribution by the wife. Further, Mrs Miller had here no right to, and could not have been given, any part of Mr Miller's New Star shareholding in relation to which Mr Miller carried the risk. Mrs Miller has at all times been living in the house, which has now been formally transferred to her. Her only further claim was to a sum of money, assessed by the judge at £2.7 million (which Mr Miller paid in two instalments in May and June 2005). Mr Miller cannot easily be said in this case to have been holding on to any asset which should have been Mrs Miller's, or to owe anything other than money. Assuming that the focus is on assets acquired during the marriage, rather than on the husband's overall means, it seems to me therefore natural in this case to look at the period until separation.
24.1. The statute requires all the assets to be valued at the date of trial.
24.2. For the purposes of establishing the matrimonial property in respect of which the yardstick of equality will "forcefully" apply the value of assets brought into the marriage by gift and inheritance (other than the former matrimonial home), together with passive economic growth on those assets, should be excluded as non-matrimonial property.
24.3. Assets acquired or created by one party after (or during a period of) separation may qualify as non-matrimonial property if it can be said that the property in question was acquired or created by a party by virtue of his personal industry and not by use (other than incidental use) of an asset which has been created during the marriage and in respect of which the other party can validly assert an unascertained share. Obviously, passive economic growth on matrimonial property that arises after separation will not qualify as non-matrimonial property.
24.4. If the post-separation asset is a bonus or other earned income then it is obvious that if the payment relates to a period when the parties were cohabiting then the earner cannot claim it to be non-matrimonial. Even if the payment relates to a period immediately following separation I would myself say that it is too close to the marriage to justify categorisation as non-matrimonial. Moreover, I entirely agree with Coleridge J when he points out that during the period of separation the domestic party carries on making her non-financial contribution but cannot attribute a value thereto which justifies adjustment in her favour. Although there is an element of arbitrariness here I myself would not allow a post-separation bonus to be classed as non-matrimonial unless it related to a period which commenced at least 12 months after the separation.
24.5. By this process the court should, without great difficulty, be able to separate the matrimonial and non-matrimonial property. The matrimonial property will in all likelihood be divided equally although there may be deviation from equal division (a) if the marriage is short and (b) part of the matrimonial property is "non-business partnership, non-family assets" (or if the matrimonial property is represented by autonomous funds accumulated by dual earners).
24.6. The non-matrimonial property is not quarantined and excluded from the court's dispositive powers. It represents an unmatched contribution by the party who brings it to the marriage. The court will decide whether it should be shared and if so in what proportions. In so deciding it will have regard to the reality that the longer the marriage the more likely non-matrimonial property will become merged or entangled with matrimonial property. By contrast, in a short marriage case non-matrimonial assets are not likely to be shared unless needs require this.
24.7. In deciding whether a non-matrimonial post-separation accrual should be shared and, if so in what proportions, the court will consider, among other things, whether the applicant has proceeded diligently with her claim; whether the party who has the benefit of the accrual has treated the other party fairly during the period of separation; and whether the money-making party has the prospect of making further gains or earnings after the division of the assets and, if so, whether the other party will be sharing in such future income or gains and if so in what proportions, for what period, and by what means.
Whatever the length of the marriage, a claim may fail if it is left dormant for too long, in which case one factor may be that the husband's assets have been built up with another woman. It has been said that after a long lapse of time a party to a marriage should be entitled to take the view that there would be no revival or initiation of financial claims against him; the longer the lapse of time the more secure he should feel in the rearrangement of his financial affairs and the less should any claim be encouraged or entertained.
Delay, if it really is delay in the sense of prejudicing the other party, may have an important influence on the justice of the case. So may conduct which can be described as "lulling" the other party into the belief that all claims have already been dealt with. Similarly it may be unjust to interfere with property rights after a lapse of a reasonable and proper manner in the belief that the financial consequences of the divorce have been settled.
There are certain detrimental consequences of delay. The first is that delay engenders bitterness and hostility between the parties which is detrimental to the whole fairly and, in particular, to any children of the family. The husband in this case is aggrieved at the attack that is now made upon the home in which he has been living for the past 10 years. The wife, on the other hand, feels deprived of her money and the right to live there. The delay inevitably increases costs. It leads to a multiplicity of affidavits which are filed in order to deal with the ever-changing position of each of the parties. Inevitably, it lead to an exchange of correspondence over a protracted period between solicitors and, no doubt, also leads to attendance of the parties upon the solicitors. And all those matters adds up in costs.
Further, with the change in property values and with inflation as it is in our present economic situation, as well as with the changes in the parties' own situation and the commitments they take upon themselves, the whole case can be materially altered, and the ability of the parties to cope with any orders that the court might otherwise properly have made upon the merits of a case may be put in jeopardy. Indeed, delay can put the court in the simple position of not being able to do justice between the parties according to the merits of each case. Unless it can be clearly shown that one party bears the greater responsibility for the delay that does the other, the court may be left with no alternative but to make an order which does not reflect the merits of the case.
In the result Booth J felt that all she could do was to award the wife a mere £2,500 (inclusive of the arrears of maintenance). I would emphasise the risk of injustice that is caused by delay. The longer the time that passes the more likely it is that documents will disappear and memories cloud with the result that there is a greatly enhanced risk of the court rendering imperfect justice.
Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking one course or the other, so far as relates to the remedy.
Where a marriage is irretrievably broken down, the parties are to be encouraged to deal with all outstanding issues as reasonably expeditiously and succinctly as possible.
Third party rights
. It is well established that a dispute between a spouse and a third party as to the beneficial ownership of property can be adjudicated in ancillary relief proceedings: see Tebbutt v Haynes  2 All ER 238, per Lord Denning MR:
"It seems to me that, under s.24 of the 1973 Act, if an intervenor comes in making a claim for the property, then it is within the jurisdiction of the Judge to decide on the validity of the intervenor's claim. The Judge ought to decide what are the rights and interest of all the parties, not only of the intervenor, but of the husband and wife respectively in the property. He can only make an order for transfer to the wife, of property which is the husband's property. He cannot make an order for the transfer to the wife of someone else's interest."
 It is to be emphasised, however, that the task of the Judge determining a dispute as to ownership between a spouse and a third party is of course completely different in nature to the familiar discretionary exercise between spouses. A dispute with a third party must be approached on exactly the same legal basis as if it were being determined in the Chancery Division.
(i) …whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, or
(ii) … between whom and any party to the cause or matter there may exist a question or issue arising out of or connected with any relief or remedy claimed in the cause or matter which in the opinion of the court it would be just an convenient to determine as between him and that party as well as between the parties to the cause or matter.
The decision of T v T and Others (Joinder Of Third Parties)  2 FLR 357, which held that it was appropriate to join trustees of a post nuptial settlement, is not a compendium of all the circumstances where joinder can be ordered in ancillary relief proceedings. It is an example of a set of circumstances where joinder may be ordered. If a third party claims that property which is said by the applicant for ancillary relief to comprise part of the pool over which the court's dispositive powers range then it is obvious that under one or other limb that third party can and should be joined in order that his claim may be adjudicated.
I agree that both Thorpe and Butler-Sloss LJJ did attach considerable importance to the wife's entitlement under the partnership. There are observations, particularly in the judgment of Thorpe LJ, which, read by themselves, might suggest that in this regard the clock was being turned back to the pre-1970 position. Then courts often had to attempt to unravel years of matrimonial finances and reach firm conclusions on who owned precisely what and in what shares. The need for this type of investigation was swept away in 1970 when the new legislation gave the court its panoply of wide discretionary powers. Since then, the courts have not countenanced parties incurring costs which would be disproportionate to the assistance the expenditure would give in carrying out the s 25 exercise.
All this is well established. So much so, that I cannot believe that either Thorpe LJ or Butler-Sloss LJ intended to gainsay this approach. Indeed, Butler-Sloss LJ stated expressly that what she had in mind, where parties were in business together, was a broad assessment of the financial position and not a detailed partnership account. She rightly noted that, even in such a case, the parties' proprietorial interests should not be allowed to dominate the picture: see  2 FLR 310, 323,  2 WLR 1213, 1227. If Thorpe LJ went further than this, he went too far.
The wisdom of this approach is confirmed by the substantial body of additional evidence produced for the first time in your Lordships' House. The new material included the Whites' partnership agreement. From this evidence it emerged that, if a strict valuation of the parties' shares on a dissolution of the partnership were needed, several disputes would have to be resolved: disputes about the assets and liabilities of the partnership, a dispute about the value of the milk quota, and a dispute over the proper interpretation of the somewhat obscure retirement provisions in the partnership agreement. I do not think any of these differences need be resolved. The House can, and should, proceed on the basis of the factual findings of Holman J.
The burden of proof
My factual findings
1964 to 1985
1985 - 1993
57.1. John Alderman who wrote of the purchase of W's properties and of H's lack of interest in her business;
57.2. Steven Kossak a curator of the Metropolitan Museum of Art in New York who deposed to W having no business relations with H since 1987;
57.3. Sir Robert Bruce-Gardner, a former director of conservation at the Courtauld Institute who stated that from his observation from 1986 H had no involvement in W's business;
57.4. Sharon Solomons, who from 1986 acted as W's shipper. She stated that from 1986 she neither received nor sent any shipments on H's behalf, nor had she had any correspondence or instructions from him regarding any shipments;
57.5. Margaret Mark, the vendor of No 37B, who stated that despite H's assertion, she never met him;
57.6. Mr Kaku, a gallery owner from Tokyo, who spoke of W's abilities and H's lack of involvement in the business;
57.7. Mr Edward O'Neill, a dealer in Chinese antiques in Hong Kong, who also spoke of W's abilities and H's lack of involvement in the business;
57.8. Alby Nall-Cain who spoke of the business' humble beginnings and of H's non-involvement in it.
60.1. His nephew Massimiliano Delpero who gave written evidence of his attempts to try to broker a settlement by mediation, which I regard as of doubtful admissibility. Even if admissible I regard the evidence as of tangential relevance.
60.2. Nathaniel Vita stated that he regarded H as a member of his family. He stated that it was joint decision of H and W to relocate to London. He claimed to have offered loans to the business on the strength of representations from H that the stock was worth $1m. He was unable to confirm H's evidence concerning the conversation about cash of $750,000 or $1.25m.
60.3. Guido Fuga told me that he had overheard telephone conversations and a couple of face to face discussions between H and W when they were talking about their business
60.4. Olga Getto stated that she was aware that H was continually sending things to W. She admitted that she had been in a sexual relationship with H from the mid 1980s until the 1990s.
60.5. Lobsang Wujohkstsang stated that when a student at the University of Punjab at Chandigarh from 1985 onwards he knew H and W and that he was aware from conversations with H that he was in business with W and was sending items to her in London.
60.6. Tado Lithangpa gave evidence to me via video-link from Peking. He gave evidence in heavily accented and halting English. He is a Tibetan dealer in artefacts based in Lhasa. He stated that from 1976 to 1994 he sold many items to H which were sent to London. He only started to deal directly with W after 1994.
The Yamantaka M andala
79.1. The piece was not found in 1991 but 1989 or 1990.
79.2. It was not an embroidery but a tapestry.
79.3. It did not contain feathers or dyed leather.
79.4. W did not come to Lhasa with the purchase money of $550,000 in cash stuffed into a hunting jacket.
79.5. The second missing fragment was not owned by Mr Miller but Mr Roncoroni.
79.6. It was not sent for restoration to Switzerland.
79.7. It was not sold to Mr Kaku.
Also, I do not believe that H spontaneously remembered overnight about the missing fragments. I believe that he only "remembered" this after some further research.
1993 to the present time
The resolution of this case
91.1. When W transferred to Fabio in July 2003 the benefit of the loan owed to her by the business of £255,000 neither she nor Fabio had any inkling that H would make a claim against her for ancillary relief. She had sound estate planning reasons to transfer the loan to Fabio. By 2003 she would have been deemed domiciled for Inheritance Tax purposes. She stated that at her age mortality was a concern and avoidance of Inheritance Tax a consideration. Although the statute reverses the burden of proof so that W has to show that she made the transfer without intending to defeat H's claim for ancillary relief I am quite satisfied that she has succeeded in doing so.
91.2. The totality of W's assets can be tabulated thus:
|39D Randolph Avenue||375,000|
|costs of sale at 3%||(11,250)|
|37B Randolph Avenue||785,000|
|costs of sale at 3%||(23,550)|
|Rossi and Rossi Ltd||100,000|
|W's assets (A + B + C)||535,600|
91.3. In my opinion every penny of this represents non-matrimonial post-separation accrual in the sense described by Coleridge J in N v N and by Lord Mance in Cowan and Miller. None of this money was accrued on the back of assets accumulated before 1985.
91.4. Even if this claim had been mounted timeously I would have concluded that H's claim to share in W's after acquired assets would have been very tenuous. Although I do not dismiss outright the concept of a claim for ancillary relief based on mentorship I would have thought that save in the most clamant case (which I am having difficulty in imagining) it would be hard to establish and in any event would require clear evidence of cause and effect.
91.5. In any event I am satisfied that H's claims to a sharing of W's assets must fail on account of the delay in mounting them. H made clear on his acknowledgment of service in December 1994 that he would not make a financial claim. He may have changed his mind in February 1996 when he was in Italy. It was open to him to have mounted a claim for ancillary relief at that point. I do not accept that his presence in India disabled him from mounting a claim had he wished to do so. H has given no explanation as to why he delayed for three years after the resolution of his Indian problems before starting his claim. The delay of 12 years (1992 – 2004) has been gravely prejudicial to W. She has in that period been working hard with Fabio to build up her assets. She must have believedthat H had effectively waived his claims. The passage of time has hampered this court's search for the truth. For that difficulty H is entirely responsible.
91.6. This leaves only H's needs based claim. In fairness to Mr Tidbury he had more or less abandoned this aspect of H' claim by the time he came to make his final speech. In evidence H said that his dream was to live out his days in India which made somewhat hard to credit his claim that W should buy him a flat in Turin. H advanced no evidence as to capital needs apart from asserting that a number of his friends had lent him money. They may well have done but that does not mean that W should pay them.
91.7. In Miller at Paragraph 137 Baroness Hale stated
The cardinal feature is that each [rationale] is looking at factors which are linked to the parties' relationship, either causally or temporally, and not to extrinsic, unrelated factors, such as a disability arising after the marriage has ended.
At Paragraph 138 she stated:
. The most common rationale is that the relationship has generated needs which it is right that the other party should meet. In the great majority of cases, the court is trying to ensure that each party and their children have enough to supply their needs, set at a level as close as possible to the standard of living which they enjoyed during the marriage (note that the House did not adopt a restrictive view of needs in White: see pp 608g to 609a). This is a perfectly sound rationale where the needs are the consequence of the parties' relationship, as they usually are. The most common source of need is the presence of children, whose welfare is always the first consideration, or of other dependent relatives, such as elderly parents. But another source of need is having had to look after children or other family members in the past. Many parents have seriously compromised their ability to attain self-sufficiency as a result of past family responsibilities. Even if they do their best to re-enter the employment market, it will often be at a lesser level than before, and they will hardly ever be able to make up what they have lost in pension entitlements. A further source of need may be the way in which the parties chose to run their life together. Even dual career families are difficult to manage with completely equal opportunity for both. Compromises often have to be made by one so that the other can get ahead. All couples throughout their lives together have to make choices about who will do what, sometimes forced upon them by circumstances such as redundancy or low pay, sometimes freely made in the interests of them both. The needs generated by such choices are a perfectly sound rationale for adjusting the parties' respective resources in compensation.
91.8. These passages suggest that in order to justify a needs based award identification ought to be made of a causal connection between the need and the marital relationship. This seems to me to make perfect sense both legally and morally (although I am not suggesting that such a causal link is a sine qua non for an award). The facts of this case exemplify it. Let it be assumed that H has needs for capital to buy accommodation and to meet his debts, and for income over his Italian state pension of €500 per month. What is the causal connection of such needs to this relationship that ended physically in 1978 and financially in 1985? Why should W be expected to meet needs that appear to arise because of the way that H's separate life has unfolded for the last 23 years? In my view it would be wrong for W to be expected to do so.
91.9. H has not mounted a claim for a periodical payments order. Had he done so it would have failed. W's income is modest: effectively she and Fabio share the profits from the business via a joint account. W stated that she lives frugally and I have no doubt that this is the case.
91.10. In deciding that all of the claims of each party for ancillary relief should be irrevocably dismissed I have taken into account all the factors mentioned in s25(2) Matrimonial Causes Act 1973. Above all I have concluded that it would be fair that on the facts of this case neither party should be required to make any payment to the other.