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Miller v Miller [2005] EWCA Civ 984

Clean-break award in short but wealthy marriage upheld.

Miller v Miller [2005] EWCA Civ 984

Court of Appeal: Thorpe and Wall LJJ and Black J (29 July 2005)

Clean-break award in short but wealthy marriage upheld.

This was an appeal by the husband against the first-instance decision (see M v M [2005] EWHC 528 (Fam)) in which the judge made an overall award of £5 million to the wife, comprising a transfer to her of the matrimonial home free of mortgage (agreed value £2.3m) and a capital fund of £2.7m to ensure her relative affluence.

Four main contentions were advanced on behalf of the husband:

(1) the judge erred in permitting the wife to adduce evidence as to the cause of the breakdown in the face of her FDR declaration;

(2) the judge erred in holding that the husband was to blame for the breakdown of the marriage and that this consideration shielded the wife from the husband's reliance on the short duration of the marriage;

(3) the judge was plainly wrong to justify his substantial award on the ground that the wife had a legitimate expectation that she would live at a higher standard of affluence than she had enjoyed prior to the marriage on a long-term basis; and

(4) the judge wrongly rejected a clear line of authority that established the principle on which claims were to be determined in short marriage cases, in particular S v S [1976] FLR 640, H v H [1981] 2 FLR 392, Robertson v Robertson [1983] 4 FLR 387, and Hedges v Hedges [1991] 1 FLR 196.

The main issues to be decided by the court related to the third contention, namely: was the judge's conclusion sufficiently explained and reasoned; and was the judge's overall award plainly excessive?

Held, dismissing the appeal, that the judge has sufficiently explained his reasoning process, albeit that his judgment was heavily nuanced; and the award was not so excessive as to be outside the band within which reasonable disagreement was possible; the ambit of the judge's discretion in cases involving very large assets and a short childless marriage was particularly wide.

The court also dismissed the other contentions; in relation to the weight to be accorded to the pre-2000 cases, the court was firmly of the view that they were no longer good law, and the approach adopted in those decisions, both at first instance and on appeal, could not survive in the light of the House of Lords decision in White v White [2001] 1 AC 596.

Case comment by Tacey Cronin of Albion Chambers

We commented on the first instance decision in this case that it was bound to be appealed and here is the appeal – already broadcast in the popular press since appeals are heard in open court. Yes, this wife was left with 4.5 million pounds against her husband's current wealth of 17.5 millions after less than 3 years marriage: but she had been totally committed to the marriage, done all she could have done to keep it going, her own pre-marriage earnings had been £85,000 and the husband stood to receive income at a very high level (£1m p.a.) for the foreseeable future.

The appellate court might not have been as generous as the Judge, but there was nothing wrong with his decision even if it was briefly argued – "expressed in nuances". The report makes some comments on the appeal process: it will be more useful to concentrate on the better points in the grounds of appeal (!), first instance judgments won't be perfect, and Judges who hear evidence are better placed to assess the s25 factors than appeal courts.

The decision refers to Foster v Foster [2003] 2 FLR 299 Hale J and the need to avoid discrimination: it clearly endorses the nature of marriage and the value of commitment, at least in the context of assessing the relevance of the length of the marriage (contrast Stack v Dowden) and admits the relevance of the parties' good conduct as contribution: it endorses the Judge's comments on expectation: it interprets Foster for those of us who thought it might have been a case limited to its own facts as signaling a new approach to the short childless marriage, and it sounds the death knell for putting wives back on their feet – as opposed to putting both parties back into the positions they were in before the marriage.

Classically, the Court say that they are not setting any new yardsticks: your commentator has had four hearings in financial cases since this decision was reported and in two of those the district judge has commented on the implications of Miller!

Read the full text of the judgment here