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Court of Appeal judgment in non-matrimonial property appeal

Lord Justice Moylan gives leading judgment in Hart v Hart appeal

In Hart v Hart [2017] EWCA Civ 1306 the Court of Appeal has considered what approach the court should take in respect of non-matrimonial property when considering a financial remedy claim by application of the sharing principle. Lord Justice Moylan delivered the judgment of the court (with which Beatson and Lloyd Jones LJJ agreed).

When considering the approach the court should take in such cases, the court was concerned, in particular, with:

The wife was appealing against a financial remedy order which provided that she should have assets totalling approximately £3.5 million from total assets which amounted to nearly £9.4 million.  The judge had determined that this was the amount required to meet the wife's needs.  He had also ordered £92,000 in respect of arrears of maintenance.

The judge had concluded that the fact that at the beginning of the parties' relationship the husband had been a wealthy man whereas the wife had no significant capital assets was a matter which "must be reflected in the outcome".

The Court of Appeal dismissed both of the wife's grounds of appeal.

Moylan LJ noted that classifying property as matrimonial or non-matrimonial is relevant to any court seeking to apply the sharing principle because the sharing principle applies with force to marital property but that it does not apply, or applies only with significantly less force, to non-marital assets.

At first instance the judge had commented that it was "hardly surprising that there is difficulty in producing reliable documentation from that long ago", that is, the start of the parties' relationship some 30 years previously but the judge had also criticised the husband's approach to disclosure describing it as "very poor indeed".

Moylan LJ considered that it was not a requirement for a judge to adopt a "formulaic" approach in order to achieve a fair outcome. Indeed, this case illustrated the difficulties such an approach may present because an accurate financial history had been difficult to obtain.  The exercise was more an art than a science.

The Court of Appeal determined that the court at first instance had properly assessed the wife's further contention that if a departure from equality had been justified on the basis of non-marital assets then the decision to ground the award on the basis of her needs had been arbitrary and incorrect because it denied her the greater figure she should have received if the marital and non-martial assets. The judge had undertaken an overview of the case to check that his proposed award was fair and the award could not be successfully challenged.

Nicola Walker of Irwin Mitchell LLP, who acted for Mrs Hart, commented:

"The decision of the Court of Appeal leaves the law in a state of flux; it allows a Trial Judge to find that even where it is not properly evidenced, the financial contribution of one spouse outweighs the family and domestic contribution of the other."

For the judgment and detailed summary by Bethany Hardwick, click here.