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JL v SL (No 2) [2014] EWHC 360 (Fam)

Second judgment in financial remedy proceedings in which Mostyn J discusses the court’s approach to (a) an inheritance received by the wife shortly before separation and (b) post separation accrual in the hands of the husband.

About four months prior to this judgment Mostyn J allowed the wife's appeal from the final order of District Judge Reid (sitting at the PRFD as it was then known) on the basis that the district judge has erred in her treatment of an inheritance received by the wife of £465,000 shortly before the separation.

Upon allowing the appeal, Mostyn J had been unable to proceed to exercise the statutory discretion afresh because of two significant events that had occurred since the making of the final order: (1) the company which had been employing the husband had been sold and he received £1.1m gross (£586,334 net) from the sale of shares in the company; at the final hearing the husband had stated the shares were worthless and (2) shortly thereafter the husband was made redundant and he received £100,000 as a termination payment.

Having allowed the appeal, the judge directed an SJE report concerning the husband's future employment prospects.

The parties agreed to proceed on the basis of the district judge's findings concerning their respective needs. The judge heard evidence about the husband's knowledge of the takeover of his company at the time of the final hearing and found that "this was a clear and indefensible case of non-disclosure". The judge expressed that, had he not set aside the order on appeal, he would have done so on the basis of non-disclosure.

Having surveyed the case law on the definition of 'fairness' the judgment deals with the following two principles:

1. Matrimonial and non-matrimonial property
Mostyn J cites the Court of Appeal's decision in K v L [2011] 2 FCR 597 and concludes that "it is hard to envisage a case" in which a party might establish a claim to share non-matrimonial property (as opposed to having a sum awarded from it to meet needs). He identifies from the authorities two divergent approaches on how to express the existence of non-matrimonial property in the ultimate division of assets. The first approach is to adjust the percentage from 50%, this the judge describes as "quintessentially intuitive" and risks being described as a "lawless science". The alternative approach is to determine the partition between matrimonial and non-matrimonial property and to divide equally the matrimonial property and to exclude completely from sharing the non-matrimonial property.

The judge goes on to emphasise that whilst equal sharing of the matrimonial property would be the norm it is not a rule and he provides the following examples of exceptions:

a) Although the matrimonial home will normally be designated as matrimonial property (in accordance with the speech of Lord Nicholls in Miller & McFarlane) in the case of Vaughan v Vaughan [2008] 1 FLR 1108 an unequal division of the matrimonial home was justified by virtue of unequal contributions to its acquisition.

b) If pre-marital or non-matrimonial property has become 'part of the economic life of the marriage' the extent to which it will be characterised as matrimonial will depend on questions of duration and mingling. Mostyn J quotes his judgment in N v F [2011] 2 FLR 533 in which he approaches the existence of pre-marital property which has been subject to mingling by excluding the original sum of £2.116m brought into a 16 year marriage but not any growth on the sum (and before making any necessary adjustment for needs);

c) The doctrine of Special Contribution

2. Post-separation accrual
The judge describes assets in this category as "a hybrid creature'. He distinguished two types of post-separation accrual:

a) Continuum cases - assets which were in place at the point of separation will remain matrimonial property but the increase in value achieved post separation may be unequally divided (although he emphasised that passive growth will be subject to equal sharing);

b) New venture cases - where the post separation accrual relates to a truly new venture in which case it should be designated as non-matrimonial property.

In the same way as with non-matrimonial property generally, Mostyn J criticises the approach whereby the court adjusts the overall percentage of division on an intuitive basis to reflect post separation accrual (as he infers was the approach adopted by Roberts J in Cooper-Hohn v Hohn [2014] EWHC 4122 (Fam). Instead he proposes that the court should first determine the share of matrimonial property before post separation accrual (usually subject to equal sharing) before going on to determine the share of the post separation growth (usually subject to unequal sharing).

On the present facts the judge decided that both the Wife's inheritance and the husband's post separation windfall were non-matrimonial (the husband's windfall came from shares in a new company from a job he took 11 months after separation). He therefore approached the discretionary exercise by awarding the parties equal shares of the matrimonial property and he then assessed their respective needs having accounted for the non-matrimonial property to which each was entitled. On that analysis no further adjustment proved necessary to meet needs.

In light of the husband's non-disclosure the judge ordered him to pay all of the wife's costs from the proceedings at first instance (£85,000). He had already made a costs order upon allowing the appeal at the previous hearing.

Summary by George Gordon, barrister, 1 King's Bench Walk

Neutral Citation Number: [2015] EWHC 360 (Fam)
Case No: FD12D00611


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 18/02/2015

Before :


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Between :
JL Applicant
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SL Respondent
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Alexis Campbell (instructed by Family Law in Partnership) for the Applicant
Richard Bates
(instructed by Kidd Rapinet) for the Respondent

Hearing date: 12 February 2015
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Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

This judgment was delivered in private.   The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved.   All persons, including representatives of the media, must ensure that this condition is strictly complied with.   Failure to do so will be a contempt of court.

Mr Justice Mostyn : 
1. In this judgment I shall refer to the appellant as the wife and to the respondent as the husband.

2. On 7 October 2014 I allowed the appellant's appeal from the order of District Judge Reid dated 8 January 2014. My ex tempore judgment has the neutral citation [2014] EWHC 3658 (Fam) and will be published at the same time as this one. It sets out the relevant background and any reader of this judgment should perhaps read my earlier judgment first.

3. I allowed the appeal on the ground that the District Judge had erred in her treatment of an inheritance received by the wife of £465,000 shortly before the separation in July 2011.

4. Normally on allowing an appeal the appellate court will immediately proceed to exercise the statutory discretion anew. But I was not in a position to do so as it was revealed that two significant events had occurred since the order of 8 January 2014 had been made. First, as I explained in para 26 of my first judgment, the company which employed the husband had been sold to venture capitalists on 3 June 2014 and on 1 July 2014 the husband received £1.1m gross, £586,334 net, sale proceeds of his 90,000 shares in the company. These shares he had stated in evidence to the District Judge were worthless. Second, as I explained in para 27, shortly thereafter the husband was made redundant, receiving £100,000 net as a termination payment.

5. I concluded that I needed more information before I could exercise the discretion anew. I directed a further statement from each party and a SJE report concerning the husband's future employment prospects.

6. I ordered the husband to pay the wife's costs assessed at £15,000, such order not to be enforced until after the substantive disposition had been implemented. In other words those costs were to come out of the husband's divided share and not off the top of the assets.

7. The SJE report was written by Andrew Nicoll of Keith Carter & Associates. If I may say so it is a report of outstanding quality in terms of its analysis and conclusions as well as its literary style. It was a real pleasure to read it.

8. I heard oral evidence from the husband, specifically about his knowledge of a takeover at the time of the hearing below which took place on 3 and 4 October 2013. Otherwise the parties were content to proceed on the basis of the findings made by the District Judge in particular concerning the parties' respective needs.

9. Both Counsel prepared skeleton arguments of quality and had agreed a schedule of assets. They made their submissions economically and eloquently. All in all the case was conducted in a model way. 

10. The two complicating legal features of this case are the correct treatment of the inheritance by the wife and the post-separation accrual in the hands of the husband. How should they be fairly reflected in my disposition?

11. It is a truism that the ultimate judicial objective in an ancillary relief case is to achieve a "fair" outcome. But, in such a case, what is fairness? 

12. In White v White [2001] 1 AC 596, [2000] 2 FLR 981 at para 1 Lord Nicholls stated:

"Features which are important when assessing fairness differ in each case. And, sometimes, different minds can reach different conclusions on what fairness requires. Then fairness, like beauty, lies in the eye of the beholder."

13. In Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 618, [2006] 2 WLR 1283, [2006] 1 FLR 1186 at para 4 Lord Nicholls stated:

"Fairness is an elusive concept. It is an instinctive response to a given set of facts. Ultimately it is grounded in social and moral values. These values, or attitudes, can be stated. But they cannot be justified, or refuted, by any objective process of logical reasoning. Moreover, they change from one generation to the next. It is not surprising therefore that in the present context there can be different views on the requirements of fairness in any particular case."

14. In a totally different context in R v Secretary of State for the Home Department, ex parte Doody [1993] UKHL 8, [1994] 1 AC 531 Lord Mustill stated:

"What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that: … (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. …"

15. Therefore at its heart a judgment about what is fair is instinctive and intuitive. However, as Lord Nicholls stated in Miller at para 6:

"But an important aspect of fairness is that like cases should be treated alike. So, perforce, if there is to be an acceptable degree of consistency of decision from one case to the next, the courts must themselves articulate, if only in the broadest fashion, what are the applicable if unspoken principles guiding the court's approach."

16. Deane J put it in a similar way in the High Court of Australia in Mallett v Mallett (1984) 156 CLR 605 at p 641:

"It is plainly important that, conformably with the ideal of justice in the individual case, there be general consistency from one case to another of underlying notions of what is just and appropriate in particular circumstances. Otherwise, the law would, in truth, be but the "lawless science" of "a codeless myriad of precedent" and "a wilderness of single instances" of which Lord Tennyson wrote in his poem "Aylmers Field""

Matrimonial and non-matrimonial property.
17. A key component of fairness is drawing the distinction between matrimonial and non-matrimonial property. In para 16 of Miller Lord Nicholls stated:

"This 'equal sharing' principle derives from the basic concept of equality permeating a marriage as understood today. Marriage, it is often said, is a partnership of equals. In 1992 Lord Keith of Kinkel approved Lord Emslie's observation that 'husband and wife are now for all practical purposes equal partners in marriage': R v R [1992] 1 AC 599, 617. This is now recognised widely, if not universally. The parties commit themselves to sharing their lives. They live and work together. When their partnership ends each is entitled to an equal share of the assets of the partnership, unless there is a good reason to the contrary. Fairness requires no less. But I emphasise the qualifying phrase: 'unless there is good reason to the contrary'. The yardstick of equality is to be applied as an aid, not a rule." 

18. Matrimonial property is the property which the parties have built up by their joint (but inevitably different) efforts during the span of their partnership. It should be divided equally. This principle is reflected in statutory systems in other jurisdictions. It resonates with moral and philosophical values. It promotes equality and banishes discrimination.

19. These arguments do not apply to property received or created outside the span of the partnership, or gratuitously received within the partnership from an external source. Such property has little to do with the endeavour of the partnership and the equal sharing principle as explained by Lord Nicholls just cannot apply to it on any moral or fair basis. However, as I will explain, pre-marital property not uncommonly becomes part of the economic life of the spousal partnership and thus acquires a matrimonial character giving rise to a (not necessarily equal) sharing claim in relation to it.

20. For obvious reasons the span of the partnership is looked at de facto and not de jure. It is not looked at from the date of the marriage to the date of decree absolute. Rather it is measured from when the cohabitation began on a permanent basis until the date of the separation.

21. In my decision of N v F [2011] 2 FLR 533 I sought to analyse the developing jurisprudence in relation to the categorisation and treatment of these two classes of property. Following my decision came the decision of the Court of Appeal in K v L [2011] 2 FCR 597, which is the most recent appellate pronouncement on the subject. In my decision of S v AG [2011] 3 FCR 523, [2011] EWHC 2637 (Fam) I in effect up-dated my compendium in N v F. I stated at para 7:

"Therefore, the law is now reasonably clear. In the application of the sharing principle (as opposed to the needs principle) matrimonial property will normally be divided equally (see para 14(iii) of my judgment in N v F). By contrast, it will be a rare case where the sharing principle will lead to any distribution to the claimant of non-matrimonial property. Of course an award from non-matrimonial property to meet needs is a commonplace, but as Wilson LJ has pointed out we await the first decision where the sharing principle has led to an award from non-matrimonial property in excess of needs." 

22. Given that a claim to share non-matrimonial property (as opposed to having a sum awarded from it to meet needs) would have no moral or principled foundation it is hard to envisage a case where such an award would be made. If you like, such a case would be as rare as a white leopard.

23. In N v F at paras 10 and 11 I stated:

"Where it is decided that the existence of [non-matrimonial] property should be reflected, there are two schools of thought as to how its expression should be worked out. The first is the technique of simply adjusting the percentage from 50%.  …

The alternative technique is to identify the scale of the non-matrimonial property to be excluded, leaving the matrimonial property alone to be divided in accordance with the equal sharing principle. …"

24. The problem with the first technique is that it is quintessentially intuitive. How do the parties understand how, say, 40% has been alighted on, as opposed to, say, 43% or 45%? The technique may reflect the individual judge's instinct and intuition but it risks being described as a lawless science. In my opinion that technique cannot comfortably co-exist with para 21 of K v L where Wilson LJ stated:

"Thus a special contribution arises in circumstances in which a spouse's contribution, direct or indirect, to the creation of matrimonial property has been so extraordinary as to dictate a departure within the sharing principle from the ordinary consequence of its equal division. It is therefore no accident that this court's reference, [in Charman] at [90], to the unlikelihood of departure from equality further than to 66.6% - 33.3% was of "division of matrimonial property". By contrast, although non-matrimonial property also falls within the sharing principle, equal division is not the ordinary consequence of its application. The consequences of the application to non-matrimonial property of the two other principles of need and of compensation are likely to be very different; but the ordinary consequence of the application to it of the sharing principle is extensive departure from equal division, often (so it would appear) to 100% - 0%."  (emphasis in original)

25. This seems to me to mandate that the court should always attempt to determine the partition between matrimonial and non-matrimonial property. Once it has done so the matrimonial property should usually be divided equally and there should usually be no sharing of the non-matrimonial property.

26. To my mind Lewison LJ put the matter well in Re A (A Child) [2014] EWCA Civ 1577 where he said at para 40 "if, as White suggests, the yardstick is equality it is impossible to know whether a pot of assets is being divided equally unless you know what the pot is". And the pot he was referring to was the pot of matrimonial property.

27. I explained in S v AG at paras 8 and 9 that matrimonial property will not invariably be divided equally. As Lord Nicholls stated "when [the] partnership ends each is entitled to an equal share of the assets of the partnership, unless there is a good reason to the contrary". I stated:

"8. While matrimonial property will normally be divided equally, this is not an invariable rule. The reason for this is that sometimes the matrimonial property in question will not be the product of the endeavours of the parties within the social-economic partnership that is marriage (as Guest J described it in the Australian case of Farmer and Bramley [2000] FamCA 1615 at para 188). Sometimes one party brings assets in which become "part of the economic life of [the] marriage…utilised, converted, sustained and enjoyed during the contribution period" (ibid at para 190). This is the concept of mingling referred to by me in N v F at para 9 (where I cited the remarks of Lord Nicholls in Miller & McFarlane at paras 24 – 25 and of Baroness Hale at para 148), and by Wilson LJ in K v L at para 18(b). But even if there has been much mingling the original non-matrimonial source of the money often demands reflection in the award. Thus in S v S [2007] 1 FLR 1496 Burton J divided the matrimonial property 60/40 to reflect this factor.

9. In Miller & McFarlane Lord Nicholls specified that the matrimonial home should always be designated matrimonial property, whatever its source. He stated at para 22 that "the parties' matrimonial home, even if this was brought into the marriage at the outset by one of the parties, usually has a central place in any marriage. So it should normally be treated as matrimonial property for this purpose." This is reflected in the remarks of Wilson LJ in K v L at para 18(c). But even the matrimonial home is not necessarily divided equally under the sharing principle; an unequal division may be justified if unequal contributions to its acquisition can be demonstrated. In Vaughan v Vaughan [2008] 1 FLR 1108 Wilson LJ stated at para 49:

"Such would be the award notwithstanding that the home had been owned by the husband, free of mortgage, since well before the marriage and that, putting to one side his misconduct in dissipating assets following the breakdown of the marriage (the effect of which is intended to be rectified by the calculation), the contributions of each party to the welfare of the family during the marriage were in effect agreed to have been equal in value albeit not in kind. Although, in the words of Baroness Hale in Miller v. Miller, McFarlane v. McFarlane [2006] UKHL 24, [2006] 2 AC 618 at 663E, "the importance of the source of the assets will diminish over time", I consider that the husband's prior ownership of the home carried somewhat greater significance than either the district or circuit judge appears to have ascribed to it.""

28. This leads to the treatment of pre-marital or other non-matrimonial property which has become "part of the economic life of [the] marriage…utilised, converted, sustained and enjoyed during the contribution period". In N v F  I stated at para 14:

"It seems to me that the process should be as follows:

i) Whether the existence of pre-marital property should be reflected at all. This depends on questions of duration and mingling.

ii) 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, as happened in Jones?

iii) The remaining matrimonial property should then normally be divided equally. …"

In that case the husband brought £2.116m into a 16 year marriage. It was well and truly mingled into the economic life of the partnership. But, as I found in para 44 it was "the bedrock on which [the] marriage was founded". But for the question of need I would have excluded the initial £2.116m but not any growth on it. I adopted the same approach in my earlier decision of FZ v SZ and Others (Ancillary Relief: Conduct: Valuations) [2011] 1 FLR 64. In contrast in Jones Wilson LJ excluded not only the initial £2m of pre-marital property introduced by the husband but also £7m of growth on it.

29. It can be seen that this technique maintains the purity of equal division of what is found to be the matrimonial property and in my judgment is the path that should be generally adopted. However the fact of mingling may nonetheless lead to an unequal division of the matrimonial property, most likely where it is the matrimonial home which was provided solely by one party, as was the case in Vaughan.

30. A further instance where there will be an unequal division of the matrimonial property is where the doctrine of special contribution is found to be in play.

31. Of course an unequal division of the matrimonial property risks the very same criticism of being a lawless science to which I have referred above but in some circumstances it is unavoidable. It is equally unavoidable in some cases of post-separation accrual, to which I now turn.

Post-separation accrual
32. Post-separation accrual is a difficult subject conceptually as it is often a hybrid creature.  In my decision of Rossi v Rossi [2006] EWHC 1482 (Fam), [2007] 1 FLR 790 I attempted to explain the problem at para 15:

"But what of the position where a party has taken matrimonial property that existed at separation and traded with it and achieved a significant profit? Two points of view arise here. On the one hand it can legitimately be argued that the party in question has traded with the other party's undivided share and so should share with that party the profit that has been generated. On the other hand it can equally convincingly be said that the second party has not contributed to the industry or endeavour that gave rise to the profit or growth and so it is unfair that the second party should share to the same extent in that profit as the first who made all the effort. Similar controversy arises in relation to bonuses earned in the period of separation. The earner of such bonuses can validly argue that he did his work outside married life and without the support of his spouse. But the other party can equally validly argue that the ability to earn was generated during the marriage; that she was maintaining the family infrastructure pending dissolution of the marital partnership and division of the assets; and that during the period of separation the parties were financially linked." 

33. After analysing all the cases on the subject, some of which stretched back far into the past, including the important pronouncements of Lord Mance in Miller at para 174, I attempted to summarise the relevant principles at para 24 as follows:

"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."

34. That summary received approval from Singer J in S v S (Ancillary Relief After Lengthy Separation) [2006] EWHC 2339 (Fam) [2007] 1 FLR 2120, but at least in one respect Charles J in  H v H [2007] EWHC 459 (Fam), [2007] 2 FLR 548 disagreed with me (see para 57). However, in Jones v Jones [2011] EWCA Civ 41, [2011] 1 FLR 1723 at para 46 Wilson LJ approved one aspect of my decision. Further, the Court of Final Appeal of Hong Kong in its recent decision of Kan v Poon FACV20/2013, (2014) 17 HKCFAR 414 approved my summary. Ribeiro PJ stated at para 133:

"The summary of the principles provided in Rossi v Rossi is broader than Thorpe LJ's stricter approach [in Cowan] and is, in my view, preferable.  It points to various factors relevant to deciding whether a post-separation accrual justifies departure from equality, including the length of the marriage and separation, the nature of the property accruing and the means or efforts by which it was acquired, and so forth."

35. In that case the attempt by the husband to exclude the post-separation accrual from the marital pool failed. Ribeiro PJ stated at para 134:

"In my view, the increased Analogue Group profits do not provide a ground for departure from the equal sharing principle in the present case.  The parties married in January 1968 and separated in mid-2008, over 40 years later.  The period of separation prior to the hearing date was relatively insignificant.  The profits accruing to the Analogue Group during the post-separation period arose out of the business which had been built up in the course of the marriage, in respect of which W can legitimately assert an unascertained share on the principles accepted in LKW v DD."

36. Perhaps unsurprisingly, I remain satisfied that my summary of the relevant principles is correct, although my references to sharing non-matrimonial property in paras 24.6 and 24.7 must now be read in the light of K v L and S v AG. Only very exceptionally will such sharing be found to be fair.

37. Recently in her monumental judgment of Cooper-Hohn v Hohn [2014] EWHC 4122 (Fam) Roberts J meticulously analysed the entire jurisprudence between paras 147 and 197. At para 183 she stated:

"Thus what I have to decide is whether and to what extent the new work and new investments created by the husband in the period after the parties separated falls to be considered in the character of matrimonial property in which the wife should be entitled to a share or whether some or all of it falls at a point too distant from the essential character of the matrimonial partnership to qualify." 

And her next section was pithily headed "Continuum versus new ventures" which to my mind rightly captures the essence of the debate.

38. In that case a particular portfolio which was unquestionably matrimonial property had almost doubled in value during the period of separation of two years. In that period its increase in value had been $550m. The reason it had exploded in value was "the husband's investment eye coupled with his ability to drive change and so achieve levels of profit which are demonstrably in excess of any conventional rates of investment return" (para 185).

39. Roberts J in para 195 reached this conclusion:

"Whilst I shall come on to the precise figures once I have considered the issue of overall computation and special contribution, it is not my intention that this wife should receive no share of the assets which fall outside the marital acquest in this case. She will receive a share and that share will form part and parcel of the overall award which I will make on the basis of fairness to both parties. There is no question of her entitlement to any element of post-separation accrual being triggered by a 'needs' argument but I take the view that, notwithstanding the exponential increase in the growth of the Fund post-separation, its genesis as a matrimonial asset is a factor of considerable significance. That factor must, in my view, find its reflection in the overall quantum of the financial award she will receive at the conclusion of these proceedings. It goes to the heart of what I consider to be fair in the overall context of the case."

40. When I first read this I wondered if I had sighted a white leopard, as Roberts J appears to be suggesting that the wife would receive a share (not on a needs basis) in property that was "outside the marital acquest" and which was therefore non-matrimonial property. But on reflection I think I was wrong. I think the proper analysis is that Roberts J was saying that the fund retained its matrimonial character but the wife would share unequally in the increase in the value achieved by the husband alone in the period of separation. 

41. This approach is to my mind undoubtedly correct for those assets which were in place at the point of separation. They remain matrimonial property but the increase in value achieved in the period of separation may be unequally divided. I emphasise may. Obviously passive growth will not be shared other than equally, and there will be cases where on the facts even active growth will be equally shared, as happened in Kan v Poon.

42. On the other hand there will be cases where the post-separation accrual relates to a truly new venture which has no connection to the marital partnership or to the assets of the partnership. In such a case the post-separation accrual should be designated as non-matrimonial property and save in a very rare case should not be shared.

43. In SK v WL [2010] EWHC 3768 (Fam) there had been a substantial increase in the value of the matrimonial assets during the six years which had elapsed between separation in 2004 and trial in 2010. A business which had been incorporated in 2001 was built up by the husband substantially after separation and sold for a large sum in 2008. Moylan J declined to calculate the assets at the point of separation (which were conceded should be divided equally) and to determine what share (if any) the wife should be awarded of the post-separation growth. Rather, he awarded the wife 40% of all the assets, the departure form equality reflecting his intuitive view of how the growth should fairly be reflected.

44. It would appear that Roberts J in the end adopted the same approach in Cooper-Hohn v Hohn. In para 299 she awarded the wife 36.12% of the total assets to reflect both the husband's special contribution to the point of separation and his growth of the assets post-separation which had been achieved by his endeavour and skill alone. 

45. It will be apparent from what I have written above that I do not agree with this approach as it risks the criticisms of being a lawless science and an unreasoned expression of instinct and intuition. To my mind the preferable approach where there is a significant amount of active post-separation growth of a matrimonial asset is first to determine the share of the pool in the absence of that growth (usually an equal share) and then to determine the share of the growth (usually an unequal share).

46. It is of course correct that in Jones that Wilson LJ stated at paras 34, 35 and 52 that the fairness result achieved by this approach should be checked by the overall percentage technique, although it is hard to imagine a case where the datum of the overall percentage of a mixture of matrimonial and non-matrimonial property could alter the primary result (although an alternative view of the decision of Roberts J in Cooper-Hohn v Hohn is that she did just that).

This case

47. The husband had purchased (for the nominal sum of a penny a share) the first tranche of 40,000 shares in March 2013, seven months before the hearing on 2 October 2013. He disclosed this just a few days before the hearing. In his oral evidence to me he was not able to explain why he delayed for such a long time in revealing this. He purchased, again for a nominal sum, the second tranche of 40,000 shares in September 2013, but did not reveal this until he was being re-examined before the District Judge. To me all he could say was "it must have slipped my mind". In his witness statement the husband stated that around the end of September or the beginning of October 2013 there was a meeting attended by senior figures in his company including him and the ultimate purchasers. This was just before the hearing before District Judge Reid.  In his oral evidence to me he was unable to explain why he failed to disclose this at the hearing. What he did say in his evidence was that the shares had no value and that he had no idea when they might have value. He did agree that it was the ambition to sell the company "at some point but not immediately". He was unable to give me an explanation for such an unfortunate answer.

48. In my judgment this was a clear and indefensible case of non-disclosure. Had I not already set aside the order below I would have set it aside on the ground of non-disclosure. The case of Bokor-Ingram v Bokor-Ingram [2009] EWCA Civ 412, [2009] 2 FLR. 922 clearly establishes that there is a duty to reveal negotiations of this nature. It cannot be said that had the truth been told it would have made no difference, as was the case in Sharland v Sharland [2014] EWCA Civ 95, where the non-disclosure was of an intended IPO which never in fact happened. That case is proceeding to the Supreme Court and it remains to be seen if the materiality criterion survives. In this case, had the husband told the truth, it is distinctly possible that a different order, both in terms of shape and structure, would have been made.

49. At first instance the wife incurred costs of £85,000. Had the order been set aside on the ground of non-disclosure I have no doubt that there would have been an order for indemnity costs in her favour. I intend to mark my displeasure at this gross litigation misconduct by making an order that the husband pays her costs at first instance in the sum of £85,000.

50. Applying the principles set out above I have no hesitation in concluding that the wife's inheritance of £465,000 is non-matrimonial property and should be excluded from the divisible pool of matrimonial property. The fact that it had been placed in the husband's name in the circumstances mentioned in my first judgment is neither here not there. For the reasons given in paras 17 – 21 of that judgment I am wholly satisfied that this inheritance is non-matrimonial property.

51. I conclude that the receipt by the husband of £586,334 in July 2014 is also non-matrimonial property. There is an irony in this finding given the husband's misconduct in seeking to mislead the court about these shares. The first tranche of shares was not received until March 2013, 20 months after the separation. The shares were in a new company deriving from a new job which he took 11 months after the separation. The remaining tranches were received over two years after the separation.

52. In my judgment this new employment, and the benefits the husband received from it, is to be described as a new venture and not as a continuum. It was not even in the same sector as his previous job. Not even on the most liberal interpretation of the facts could it be said that he was trading with a marital asset which existed at the point of separation. I agree with District Judge Reid at her para 62 where she described the husband's work as "his post matrimonial job".

53. The parties have agreed that the net assets amount to £4,635,981. The calculation of the matrimonial property is therefore as follows:

Total assets


less wife's inheritance


less husband's share proceeds


matrimonial property


54. In my judgment there is no good reason not to divide this equally. Each party will therefore receive £1,792,491 from the matrimonial pool. In addition each party has already received £650,000 as a pension share. Therefore the total sums to be received by the wife, subject to the question of need, and to the award of costs, is as follows:

50% of matrimonial property


plus inheritance


total non-pension assets


plus pension share


total assets


55. It might be thought that it is a truism that just under £3m is sufficient to meet the lifetime needs of a 50 year old woman living in Buckinghamshire. But as I have had extensive submissions about the wife's needs it is important and right that I should do the exercise.

56. District Judge Reid found that each party had a housing need of £900,000 all in. I shall take that figure but shall add to it in view of housing inflation in the intervening period the sum of £55,000 for SDLT and moving costs. Deducting the sum of £955,000 from £2,257,491 leaves the wife £1,302,491 to invest from her non-pension assets. This I shall call her investment fund.

57. District Judge Reid found that the wife's needs were in three phases as follows:

i) Phase 1. Years 1 – 3:  £75,329 p.a. while the youngest child was in tertiary education

ii) Phase 2. Years 4 – 10: £55,964 p.a. after deduction of earnings of £13,007 net to age 60.

iii) Phase 3. Years 11 – death: £68,981 p.a.

58. In my judgment the first port of call is to look at Phase 3, by far the longest period. An amortising Duxbury calculation for Phase 3 yields the sum of £1,191,357. Subtracting the sum of £650,000 pension share, which should then be brought into action, leaves a shortfall of £541,357. This sum needs to be carefully preserved by the wife from her investment fund of £1,302,491, although it will give her an investment income which I shall take at the Duxbury norm of 3% gross, giving £16,241 annually.

59. A Duxbury calculation on a non-amortising basis for Phases 1 and 2, on the basis that there will be £16,241 of annual savings income, amounts to £884,030. The wife would have £761,134 to set against this need. The wife would in fact only need to amortise a very small part of her investment fund to meet her needs in Phases 1 and 2. The program calculates that she would need only to amortise 13% of the £761,134 or £98,947.

60. Miss Campbell argued that for Phases 1 and 2 the wife should not have to amortise her investment funds but she should in phase 3. I largely agree with that. The scale of amortisation in this period will be modest. But I do not agree with Miss Campbell's capitalisation methodology. I consider that the Duxbury calculator, as the industry standard, should be used to assess needs in each phase.

61. I therefore conclude that the division will meet the wife's needs.

62. Plainly the division will meet the husband's needs. The SJE's evidence is that he should be able without undue difficulty to secure employment paying between £71,000 net and £114,000 net annually, with pension provision and the hope of bonuses. He is now aged nearly 52 so has 8 years of working life ahead of him, at least.

63. I now turn to what payment needs to be made to the wife to effect the division. Her entitlement is to £2,257,491 of the non-pension assets. She has in her name £2,100,663, excluding her entitlement to £15,000 costs awarded by me on 7 October 2014, which should be dealt with after the balancing payment has been worked out. That balancing payment is therefore £2,257,491 - £2,100,663 = £156,828. To that I add £100,000 being the costs of £85,000 that the husband must pay to the wife referable to the proceedings at first instance of £85,000 and the £15,000 costs awarded by me on 7 October 2014, giving a total payment to be paid by the husband to the wife of £256,828. That shall be paid in 14 days upon which a clean break shall take effect.

64. It is to be noted that the extra figure of £100,000 which I have awarded means that the wife will not in fact have to amortise any of her investment fund in phases 1 and 2.

65. The figure of £256,828 is to be compared to £141,827 proposed by the husband, which is too low, and £801,203 proposed by the wife, which is much too high.

66. The total receipt by the wife will be, inclusive of pension assets, £3,007,491 out of total assets, matrimonial and non-matrimonial, of £5,935,981 or 50.7%. That it is very close to equality overall is a coincidence. But a result that divides equally assets of £6m while leaving the husband with his earnings is not uncommon and is certainly not unfair.

67. It is noteworthy that on the calculations I have undertaken the wife will be able to pass on to her children, subject to inheritance tax, the sum of £1,816,134.   

68. I attach in the annex to this judgment the various calculations used by me.
Calculation of assets  
Non-pension assets 4,635,981  
pension assets 1,300,000  already divided
Total assets 5,935,981  
Calculation of matrimonial property 
Total non-pension assets 4,635,981  
less W inheritance (465,000) 
less H share proceeds (586,000) 
matrimonial property 3,584,981  
50% 1,792,491  
Receipt by W  
W receives 50% of MP 1,792,491  
plus her inheritance 465,000  
total non-pension assets 2,257,491  A
plus pension share 650,000  
total assets 2,907,491  
W needs  
W housing need 955,000  B
leaving to invest 1,302,491  A-B = C
1. W needs years 1-3 75,329  p.a.
2. W needs years 4-10** 55,964  p.a.
3. W needs year 11 to death 68,981  p.a.
Duxbury for phase 3 1,191,357  amortising
less pension fund (650,000) 
capital to be preserved 541,357  D
income yield on preserved fund 16,241  p.a.
capital for phases 1 and 2 761,134  C-D
Duxbury for phases 1 and 2 884,030  non amortising
Sum available 761,134  
amortisation needed to meet 1 and 2 98,947  

Payment to W  
W entitlement 2,257,491  
W has now** 2,100,663  
sum to be paid by H 156,828  
plus costs at first instance 85,000  
plus appeal costs 7 Oct 14 15,000  
sum to be paid by H 256,828  
W receipt 2,357,491  
W pension assets 650,000  
percentage of total 50.7% 
W passing on   
W receives 3,007,491  
Duxbury phase 3 (1,191,357) 
sums to pass on 1,816,134  
* after deduction of child needs and earnings of £13,017 net
**  ignoring £15,000 costs ordered against H on 7 Oct 14