‘Mr. Feehan maintains that sharing in this case is not appropriate at all once H’s needs have been met, and that the wealth built up from earnings and bonuses which came to W during the relationship should remain hers. The evidential basis for this is the assertion that the couple maintained financial segregation within their marriage. True it is that they had no joint bank account nor any joint investments at any stage. They for the most part maintained contributory arrangements whereby they shared their household expenditure, he meeting the bills and she putting in a monthly amount towards them. There seem to have been times, and it may well have happened often, that each would contribute half to the cost of a meal out or some other social occasion: but this does not seem to have been an invariable rule. And W in fact bore the brunt of major items of expenditure. I have already referred to H’s cars, but there were in addition their expensive holidays the cost of which W met. What is lacking is any suggestion that there was a deliberate and agreed intention on their part to maintain strict separation of their finances.’
‘But as I say I am not persuaded that there is evidentially established any sufficiently clear and consistent pattern of separate finances as might found such a finding in this case. The pattern rather is, to my mind, one of open-ended liberality regularly maintained to meet the wishes and even the whims which W afforded them both. It was in this way that their incomes were pooled, and in addition clearly both contributed to regular household outgoings and other expenditure.’
‘No sufficient reason has been identified in this case for departing from equality of division. The fact that this is in effect a husband’s claim against a wife rather than the more conventional claim of wife against husband empathetically does not call for a discount. Thus the principled outcome would be that of the£6.9M of current assets (that is to say at this stage ignoring pension entitlements) H should receive sufficient to leave him with£3.275M (that is to say half of£6.9M but after deduction off the top of the£350,000 [for agreed pre-acquired assets]).’
‘Self-evidently, fairness requires the court to take into account all the circumstances of the case. Indeed, the statute so provides. It is also self-evident that the circumstances in which the statutory powers have to be exercised vary widely. … But there is one principle of universal application which can be stated with confidence. In seeking to achieve a fair outcome, there is no place for discrimination between husband and wife and their respective roles. Typically, a husband and wife share the activities of earning money, running their home and caring for their children. Traditionally, the husband earned the money, and the wife looked after the home and the children. This traditional division of labour is no longer the order of the day. Frequently both parents work. Sometimes it is the wife who is the money-earner, and the husband runs the home and cares for the children during the day. But whatever the division of labour chosen by the husband and wife, or forced upon them by circumstances, fairness requires that this should not prejudice or advantage either party when considering paragraph (f), relating to the parties’ contributions. This is implicit in the very language of paragraph (f): “the contributions which each … has made or is likely … to make to the welfare of the family, including any contribution by looking after the home or caring for the family” (Emphasis added). If, in their different spheres, each contributed equally to the family, then in principle it matters not which of them earned the money and built up the assets. There should be no bias in favour of the money-earner and against the home-maker and the child-carer.’
‘As a general guide, equality should be departed from only if, and to the extent that, there is good reason for doing so. The need to consider and articulate reasons for departing from equality would help the parties and the court to focus on the need to ensure the absence of discrimination.’
‘There is greater awareness of the extent to which one spouse's business success, achieved by much sustained hard work over many years, may have been made possible or enhanced by the family contribution of the other spouse, a contribution which also required much sustained hard work over many years. There is increased recognition that, by being at home and having and looking after young children, a wife may lose for ever the opportunity to acquire and develop her own money-earning qualifications and skills.’
‘This case, therefore, is all about contributions and whether each should be regarded as having made an equal contribution to the assets accumulated in a joint enterprise which should then be shared equally unless there are other considerations telling against this.’
‘16. A third strand is sharing. 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 . 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. 17. This principle is applicable as much to short marriages as to long marriages: see Foster v Foster[2003] 2 FLR 299 , 305, para 19 per Hale LJ. A short marriage is no less a partnership of equals than a long marriage. The difference is that a short marriage has been less enduring. In the nature of things this will affect the quantum of the financial fruits of the partnership. 18. A different approach was suggested in GW v RW (Financial Provision: Departure from Equality)[2003] 2 FLR 108 . There the court accepted the proposition that entitlement to an equal division must reflect not only the parties' respective contributions “but also an accrual over time”: p 122, para 40. It would be “fundamentally unfair” that a party who has made domestic contributions during a marriage of 12 years should be awarded the same proportion of the assets as a party who has made the domestic contributions for more than 20 years: para 43. In M v M (Financial Relief: Substantial Earning Capacity)[2004] 2 FLR 236 , 252, para 55(7), this point was regarded as “well made”. 19. I am unable to agree with this approach. This approach would mean that on the breakdown of a short marriage the money-earner would have a head start over the home-maker and child-carer. To confine the White approach to the “fruits of a long marital partnership” would be to re-introduce precisely the sort of discrimination the White case was intended to negate. 20. For the same reason the courts should be exceedingly slow to introduce, or reintroduce, a distinction between “family” assets and “business or investment” assets. In all cases the nature and source of the parties' property are matter to be taken into account when determining the requirements of fairness. The decision of Munby J in P v P (Inherited Property)[2005] 1 FLR 576 regarding a family farm is an instance. But “business and investment” assets can be the financial fruits of a marriage partnership as much as “family” assets. The equal sharing principle applies to the former as well as the latter. The rationale underlying the sharing principle is as much applicable to “business and investment” assets as to “family” assets.’
‘22. This does not mean that, when exercising his discretion, a judge in this country must treat all property in the same way. The statute requires the court to have regard to all the circumstances of the case. One of the circumstances is that there is a real difference, a difference of source, between (1) property acquired during the marriage otherwise than by inheritance or gift, sometimes called the marital acquest but more usually the matrimonial property, and (2) other property. The former is the financial product of the parties' common endeavour, the latter is not. 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. As already noted, in principle the entitlement of each party to a share of the matrimonial property is the same however long or short the marriage may have been. 23. The matter stands differently regarding property (“non-matrimonial property”) the parties bring with them into the marriage or acquire by inheritance or gift during the marriage. Then the duration of the marriage will be highly relevant. … 24. In the case of a short marriage fairness may well require that the claimant should not be entitled to a share of the other's non-matrimonial property. The source of the asset may be a good reason for departing from equality. This reflects the instinctive feeling that parties will generally have less call upon each other on the breakdown of a short marriage. 25. With longer marriages the position is not so straightforward. Non-matrimonial property represents a contribution made to the marriage by one of the parties. Sometimes, as the years pass, the weight fairly to be attributed to this contribution will diminish, sometimes it will not. After many years of marriage the continuing weight to be attributed to modest savings introduced by one party at the outset of the marriage may well be different from the weight attributable to a valuable heirloom intended to be retained in specie. Some of the matters to be taken into account in this regard were mentioned in the above citation from the White case. To this non-exhaustive list should be added, as a relevant matter, the way the parties organised their financial affairs.’
‘54. Several issues arise from these judgments. The first concerns the relevance today of the approach to short marriages enunciated in the 1980s. In the 1980s and earlier there were several reported cases concerning short marriages. The facts vary widely, but in these cases the general approach to division of assets was to concentrate on making provision for the financial needs of the claimant, usually the wife, and on compensating her for any financial disadvantage she had suffered from the breakdown of the marriage. To greater or lesser extent this approach appears in S v S[1977] Fam 127 , H v H (Financial Provision: Short Marriage)(1981) 2 FLR 392 , Robertson v Robertson(1982) 4 FLR 387 , Attar v Attar (No 2)[1985] FLR 653 and Hedges v Hedges[1991] 1 FLR 196 . 55. On the present appeal Mr Turner submitted this approach has not been invalidated by the decision in the White case[2001] 1 AC 596 . Both Singer J and the Court of Appeal declined to adopt this submission. They were right to do so. In the 1980s cases attention was directed predominantly at the wife's needs. There may be cases of short marriages where the limited financial resources of the parties necessarily mean that attention will still have to be focused on the parties' needs. That is not so in big money cases. Then the court is concerned to decide what would be a fair division of the whole of the assets, taking into account the parties' respective financial needs and any need for compensation. The court will look at all the circumstances. The general approach in this type of case should be to consider whether, and to what extent, there is good reason for departing from equality. As already indicated, in short marriage cases there will often be a good reason for departing substantially from equality with regard to non-matrimonial property.’
‘69. I accept the husband's contention that both the judge and the Court of Appeal misdirected themselves on the “conduct” issue. Even so I would dismiss Mr Miller's appeal, largely for two reasons. The first concerns the increase in the husband's wealth during the marriage. The husband brought substantial wealth into the marriage at its outset. That was non-matrimonial property. That was a major financial contribution he made to the marriage. But it would be wrong to suppose that during the period of the marriage the husband's assets increased only by the comparatively modest amount of£300,000 or so represented by his property other than his New Star shares. 70. When the parties married New Star had not got off the ground, although some of the groundwork had been done. New Star then expanded and flourished, as a result of activities undertaken for the most part during the period of the marriage. New Star set itself to grow quickly, and it did so. By rights issues and placings spread over the period from March 2001 to December 2003 substantial numbers of shares were issued at prices ranging from£80 to£150 per share. As a result New Star paid out over£140m in acquiring management of funds having assets worth the staggering amount of£3.73 billion . It is in this context that the experts' valuations of£12m and£18m for the husband's New Star shares, if they could currently have been sold, have to be seen. 71. Plainly the accretion to the husband's wealth during the marriage, as a result of work he did during the marriage, was very substantial indeed. Although the marriage was short, the matrimonial property was of great value. The gain in the husband's earned wealth during the marriage was huge. 72. Secondly, the judge was entitled to regard the high standard of living enjoyed by the parties during the marriage as a key feature of this case. That was not a standard of living the wife would be likely to achieve for herself. 73. Having regard to these two features I consider the sum of£5m awarded by the judge is appropriate in this highly unusual case. The midway figure between the experts' valuations of the New Star shares was£15m . Taking this as no more than some indication of the value of these shares, the husband's worth was of the very approximate order of£32m . An award of£5m , including in this the matrimonial home, represents less than one-third of the value of the New Star shares and less than one-sixth of the husband's total worth. An award of less than one-half of the value of the New Star shares reflects the amount of work done by the husband on this business project before the marriage.’
‘143. But there are many cases in which the approach of roughly equal sharing of partnership assets with no continuing claims one against the other is nowadays entirely feasible and fair. One example is Foster v Foster[2003] 2 FLR 299 , a comparatively short childless marriage, where each could earn their own living after divorce, but where capital assets had been built up by their joint efforts during the marriage. Although one party had earned more and thus contributed more in purely financial terms to the acquisition of those assets, both contributed what they could, and the fair result was to divide the product of their joint endeavours equally.’
‘whether in the very big money cases, it is fair to take some account of the source and the nature of the assets, in the same way that some account is taken of the sources of those assets in inherited or family wealth. Is the “matrimonial property” to consist of everything acquired during the marriage (which should probably include periods of premarital cohabitation and engagement) or might a distinction be drawn between “family” and other assets?’
‘150. More difficult are business or investment assets which have been generated solely or mainly by the efforts of one party. The other party has often made some contribution to the business, at least in its early days, and has continued with her agreed contribution to the welfare of the family (as did Mrs Cowan). But in these non-business-partnership, non-family asset cases, the bulk of the property has been generated by one party. Does this provide a reason for departing from the yardstick of equality? On the one hand is the view, already expressed, that commercial and domestic contributions are intrinsically incommensurable. It is easy to count the money or property which one has acquired. It is impossible to count the value which the other has added to their lives together. One is counted in money or money's worth. The other is counted in domestic comfort and happiness. If the law is to avoid discrimination between the gender roles, it should regard all the assets generated in either way during the marriage as family assets to be divided equally between them unless some other good reason is shown to do otherwise. 151. On the other hand is the view that this is unrealistic. We do not yet have a system of community of property, whether full or deferred. Even modest legislative steps towards this have been strenuously resisted. Ownership and contributions still feature in divorcing couples' own perceptions of a fair result, some drawing a distinction between the home and joint savings accounts, on the one hand, and pensions, individual savings and debts, on the other. Some of these are not family assets in the way that the home, its contents and the family savings are family assets. Their value may well be speculative or their possession risky. It is not suggested that the domestic partner should share in the risks or potential liabilities, a problem which bedevils many community of property regimes and can give domestic contributions a negative value. It simply cannot be demonstrated that the domestic contribution, important though it has been to the welfare and happiness of the family as a whole, has contributed to their acquisition. If the money maker had not had a wife to look after him, no doubt he would have found others to do it for him. Further, great wealth can be generated in a very short time, as the Miller case shows; but domestic contributions by their very nature take time to mature into contributions to the welfare of the family. 152. My Lords, while I do not think that these arguments can be ignored, I think that they are irrelevant in the great majority of cases. In the very small number of cases where they might make a difference, of which Miller may be one, the answer is the same as that given in White v White in connection with premarital property, inheritance and gifts. The source of the assets may be taken into account but its importance will diminish over time. Put the other way round, the court is expressly required to take into account the duration of the marriage: section 25(2)(d). If the assets are not “family assets”, or not generated by the joint efforts of the parties, then the duration of the marriage may justify a departure from the yardstick of equality of division. As we are talking here of a departure from that yardstick, I would prefer to put this in terms of a reduction to reflect the period of time over which the domestic contribution has or will continue (see Bailey-Harris, “Comment on GW v RW (Financial Provision: Departure from Equality)” [2003] Fam Law 386, 388) rather than in terms of accrual over time (see Eekelaar, “Asset Distribution on Divorce-Time and Property” [2003] Fam Law 828). This avoids the complexities of devising a formula for such accruals. 153. This is simply to recognise that in a matrimonial property regime which still starts with the premise of separate property, there is still some scope for one party to acquire and retain separate property which is not automatically to be shared equally between them. The nature and the source of the property and the way the couple have run their lives may be taken into account in deciding how it should be shared. There may be other examples. Take, for example, a genuine dual career family where each party has worked throughout the marriage and certain assets have been pooled for the benefit of the family but others have not. There may be no relationship-generated needs or other disadvantages for which compensation is warranted. We can assume that the family assets, in the sense discussed earlier, should be divided equally. But it might well be fair to leave undisturbed whatever additional surplus each has accumulated during his or her working life. However, one should be careful not to take this approach too far. What seems fair and sensible at the outset of a relationship may seem much less fair and sensible when it ends. And there could well be a sense of injustice if a dual career spouse who had worked outside as well as inside the home throughout the marriage ended up less well off than one who had only or mainly worked inside the home.’
‘The judge eschewed the yardstick of equality because the assets had not been generated by their joint efforts (cf Foster) but by the husband using his pre-marriage assets and expertise to generate substantial extra profits during the marriage. The judge quantified her claim without reference to the unfathomable value of the New Star shares acquired during the marriage, but in such a way as to give her a permanent income upon which she could live in the former matrimonial home albeit at a lower standard than she had been accustomed during the marriage.’
‘[The judge’s award] should enable a gentle transition from that standard [of living] to the standard that she could expect as a self-sufficient woman. But she is also entitled to some share in the assets. “…” She is also entitled to some share in the considerable increase of the husband's wealth during the marriage. Had the yardstick of equality been applied to all the assets which accrued during the marriage, she would have got much more than she did. In my view the judge was wrong to take account of the reasons for the break-up of the marriage, but there was a reason to depart from the yardstick of equality because those were business assets generated solely by the husband during a short marriage. Whether one puts this as the result of the contacts and capacities he brought to the marriage or as the result of the nature and source of the assets generated (or, put another way, whichever the rationale one chooses from GW v RW (Financial Provision: Departure from Equality)[2003] 2 FLR 108 ), it comes to much the same thing.’
‘167. Thirdly, this is the area where the approaches of Lord Nicholls and Baroness Hale diverge in some measure, at least in principle. On the one hand, on Lord Nicholls's approach, non-matrimonial property is viewed as all property which the parties bring with them into the marriage or acquire by inheritance or gift during the marriage (plus perhaps the income or fruits of that property), while matrimonial property is viewed as all other property. The yardstick of equality applies generally to matrimonial property (although the shorter the marriage, the smaller the matrimonial property is in the nature of things likely to be). But the yardstick is not so readily applicable to non-matrimonial property, especially after a short marriage, but in some circumstances even after a long marriage. 168. On the other hand, Baroness Hale’s approach takes a more limited conception of matrimonial property, as embracing “family assets” (cf Wachtel v Wachtel[1973] Fam 72 , 90 per Lord Denning MR) and family businesses or joint ventures in which both parties work (cf Foster v Foster[2003] 2 FLR 299 , 305, para 19, per Hale LJ). In relation to such property she agrees that the yardstick of equality may readily be applied. In contrast, she identifies other “non-business-partnership, non-family assets”, to which that yardstick may not apply with the same force particularly in the case of short marriages; these include on her approach not merely (a) property which the parties bring with them into the marriage or acquire by inheritance or gift during the marriage (plus perhaps its income or fruits), but also (b) business or investment assets generated solely or mainly by the efforts of one party during the marriage. 169. Baroness Hale acknowledges that the difference between the two approaches will in the great majority of cases be irrelevant. Further, it seems to me that after a short marriage it may in reality often be difficult to determine precisely what assets (other than family assets) were generated during the marriage. The present case is an example, with arguments about whether Mr Miller can be said (by reason of his contacts, his gentleman's agreement with Mr Duffield and/or his experience) to have brought into the marriage any asset relating to his potential interest in New Star. To take into account the shortness of a marriage could enable a court to cut through some of these more intricate arguments in a manner consistent with section 25(2)(d) of the 1973 Act. More fundamentally, to allow the duration of a marriage as a relevant factor would cater for the considerations that, while some people may make a large amount of money in a short time, the nature of their work or other factors may mean that they do not do so at a consistent rate over their lives as a whole or for more than a short period of their lives, and furthermore, as Baroness Hale has pointed out, that there may be long-term risks in relation to non-business-partnership, non-family assets which remain with those directly involved in generating them. The longer the marriage, the less likely these are to be significant considerations. In a short marriage, the timing of which may or may not coincide with a period of significant increase in the value of non-business-partnership, non-family assets, such considerations argue in favour of some further flexibility in the application of the yardstick of equality of division. I see force in and would agree with the views expressed by Baroness Hale in paras 151–152 of her judgment to the effect that the duration of a marriage, mentioned expressly in section 25(2)(d) of the Act, cannot be discounted as a relevant factor. 170. Fourthly, and whatever the position on the third point, I agree with what Baroness Hale has said in para 153, which is, as I see it, also consistent with the last sentence of para 25 of Lord Nicholls's speech. The present marriage had what one might call a traditional aspect. Mr Miller worked, and Mrs Miller gave up work to look after him. But there can be marriages, long as well as short, where both partners are and remain financially active, and independently so. They may contribute to a house and joint expenses, but it does not necessarily follow that they are or regard themselves in other respects as engaged in a joint financial enterprise for all purposes. Intrusive inquiries into the other's financial affairs might, during the marriage, be viewed as inconsistent with a proper respect for the other's personal autonomy and development, and even more so if the other were to claim a share of any profit made from them. In such a case the wife might still have the particular additional burden of combining the bearing of and caring for children with work outside the home. If one partner (and it might, with increasing likelihood I hope, be the wife) were more successful financially than the other, and questions of needs and compensation had been addressed, one might ask why a court should impose at the end of their marriage a sharing of all assets acquired during matrimony which the parties had never envisaged during matrimony. Once needs and compensation had been addressed, the misfortune of divorce would not of itself, as it seems to me, be justification for the court to disturb principles by which the parties had chosen to live their lives while married.’
‘83. … As we will show, Baroness Hale put forward the distinction between unilateral assets and other matrimonial property for use in cases in which the marriage was short. And, although obiter she suggested an extension of it to another situation, namely that of the dual career to which we turn in paragraph 86 below, she definitely did not commend the distinction for use in other cases. …’
‘85. … We suggest with respect that, while the approach of Lord Nicholls was perhaps the more logical, the approach both of Baroness Hale, with which Lord Hoffmann agreed, and of Lord Mance was perhaps the more pragmatic. Lord Nicholls, at [17] to [20], stressed that the sharing principle was as fully applicable to short as to long marriages and that the concept of treating unilateral assets differently from other matrimonial assets discriminated in favour of the bread-winner. He justified departure from equal sharing of the matrimonial property in Miller by reference, at [73], to the amount of work done by the husband prior to the marriage referable to the venture. In a section entitled “The source of the assets and the length of the marriage” Baroness Hale, at [147] to [152], squarely faced the conceptual difficulties inherent in the different application of the sharing principle to short marriages but considered that, on balance, perceptions of fairness justified it. Such became, at [158], her rationale for justifying departure from equality in Miller. Lord Mance, at [169], powerfully stressed the practical value of Baroness Hale’s approach, namely that it would often obviate the need to address the argument, sometimes called the “seed-corn” argument, raised in Miller itself, to the effect that wealth which one of the parties ostensibly generated during the marriage was a crop of which he or she had sown the seed prior to it. 86. The extension of the concept of unilateral assets, suggested by Baroness Hale in Miller, at [153], was expressly endorsed by Lord Mance, at [170]. Although obiter, it clearly commands great respect. It relates to the ‘dual career’
“Once needs and compensation had been addressed, the misfortune of divorce would not of itself … be justification for the court to disturb principles by which the parties had chosen to live their lives while married.”
‘Nuptial agreements, separation agreements and public policy’
‘The sharing principle is now firmly embedded and, in those cases where the resources exceed needs, the “ordinary consequence” of its application will be the equal division of matrimonial property: Wilson LJ in K v L (Non-Matrimonial Property: Special Contribution)[2011] 2 FLR 980 at para 21.’
‘81. Provided the guidance is authoritative, this applies whether or not, as the court said in Charman, the guidance is part of the reasoning behind the actual decision. Only to apply this approach if the guidance is part of the reasoning is too restrictive in the context of s 25 which gives an unfettered discretion and when cases involving its application will only very occasionally reach the Supreme Court and, although more frequently, still occasionally reach this court. 82. The public interest is reflected in the two objectives which the Court of Appeal in Charman said would “govern what we say” (para 63). They were, as referred to above, “to be loyal to what we understand to be the spirit as well as the letter of such guidance on the topic as has been given by the House of Lords” and, secondly, “to express ourselves as clearly and simply as the subject allows” (para 63). 83. Accordingly, absent anything since Miller, as further explained in Charman, which shows that the principles as to special contribution described in those cases are uncertain or were erroneous or have caused unfairness, we consider that we, too, should be loyal to those principles.’
‘We can assume that the family assets, in the sense discussed earlier, should be divided equally. But it might well be fair to leave undisturbed whatever additional surplus each has accumulated during his or her working life.’
‘I take that to be a suggested formulation which would allow family assets, assets acquired during the course of the relationship, to be treated in a non-sharing manner if one party has built up savings or reserves from their greater earnings or indeed it could be from their smaller expenditure. That too seems to have been the way in which Lord Mance understood the proposition at paragraph 170 …’
‘48. That last passage [ie the reference to Lord Mance] looks forward to the increasing use of prenuptial agreements and anticipates where Radmacher and the Law Commission Report Matrimonial Property, Needs and Agreements (Law Comm No 343) have since led. But I do not believe that this rationalisation is consistent with the principles developed since the decision of the House of Lords in White in 1970 (sic) and that there should be this inroad into the sharing concept in which the parties in effect subscribe when they marry unless they choose to opt out (or attempt to do so) with a prenup. The pre-White regime where reasonable needs were the be-all and end-all which regularly left financially fruitful husbands with the pick of the harvest and domestically contributing wives with, in comparison, the crumbs was rightly swept away by the twin cleansing winds which brought to an end the then prevalent discrimination and imposed an overdue re-evaluationary realignment with the words and principles of the statute. “Not to share” as Baroness Hale speculated might be appropriate in cases where there are unilateral assets seems to me, with every respect, a retrograde step which would incidentally open up fresh arenas of factual dispute for spouses to rummage through. 49. Certainly I am fortified in that belief by the patent lack of enthusiasm of the Court of Appeal in Charman for the concept of unilateral assets, and by those judges’ express intention to keep the application of the concept closely confined. Indeed it is difficult to think of a case in which it has been applied as opposed to being discussed. 50. But as I say I am not persuaded that there is evidentially established any sufficiently clear and consistent pattern of separate finances as might found such a finding in this case. The pattern rather is, to my mind, one of open-ended liberality regularly maintained to meet the wishes and even the whims which W afforded them both. It was in this way that their incomes were pooled, and in addition clearly both contributed to regular household outgoings and other expenditure.’
‘What impact if any does [the length of this marriage] make upon the sharing principle, if it applies as here I conclude it should?’
‘54. Does the sharing principle apply? It is in my judgment consistent with current principle that the matrimonial acquest, the value of the assets and savings built up during the marriage, irrespective of the very different proportions in which the parties contributed them, should be subject to the equal sharing principle.’
‘[after noting that the costs ran to more than£400,000 ] That is not especially unusual in this class of case. But the parties are not assisted to achieve compromise when they are encouraged by the law to indulge in a detailed and lengthy retrospective involving a general rummage through the attic of their marriage to discover relics from the past to enhance their role or diminish their spouse’s. … Unless [something similar to ‘gross and obvious’ regarding ‘conduct’] is soon introduced to curb these debates, I fear there is a real danger that the forward-looking White v White innovations will be lost in a sea of post break-up backward-looking mutual recrimination and the court’s task and role in this already uncertain area will thereby be set back at least a generation.’
‘… I do not accept that the duty [on family judges] requires a detailed critical appraisal of the performance of each of the parties during the marriage. Couples who cannot agree division are entitled to seek a judicial decision without exposing themselves to the intrusion, indignity and possible embarrassment of such an appraisal. I fully agree with Coleridge J that any other approach encourages a vain endeavour to recreate historical situations, choices and failings which in the context of a long marriage can never be recaptured fully or accurately.’ and by Lord Nicholls in Miller at paragraph 67: ‘A good reason for departing from equality is not to be found in the minutiae of married life.’
‘In practice in the absence of a binding nuptial agreement, all matrimonial property is treated as subject fully to the equal sharing principle (absent special contribution) because the courts have adhered to the statement of Lord Nicholls in Miller/McFarlane that it should be, and have accepted that “the rationale underlying the sharing principle is as much applicable to ‘business and investment’ assets as it is to ‘family’ assets” [Lord Nicholls para 20]’
‘More difficult are business or investment assets which have been generated solely or mainly by the efforts of one party. The other party has often made some contribution to the business, at least in its early days, and has continued with her agreed contribution to the welfare of the family (as did Mrs Cowan). But in these non-business-partnership, non-family asset cases, the bulk of the property has been generated by one party. Does this provide a reason for departing from the yardstick of equality?’
‘The source of the assets may be taken into account but its importance will diminish over time. Put the other way round, the court is expressly required to take into account the duration of the marriage: section 25(2)(d). If the assets are not “family assets”, or not generated by the joint efforts of the parties, then the duration of the marriage may justify a departure from the yardstick of equality of division. As we are talking here of a departure from that yardstick, I would prefer to put this in terms of a reduction to reflect the period of time over which the domestic contribution has or will continue …rather than in terms of accrual over time …. This avoids the complexities of devising a formula for such accruals.’
‘This is simply to recognise that in a matrimonial property regime which still starts with the premise of separate property, there is still some scope for one party to acquire and retain separate property which is not automatically to be shared equally between them.’
‘The nature and the source of the property and the way the couple have run their lives may be taken into account in deciding how it should be shared. There may be other examples. Take, for example, a genuine dual career family where each party has worked throughout the marriage and certain assets have been pooled for the benefit of the family but others have not. There may be no relationship-generated needs or other disadvantages for which compensation is warranted. We can assume that the family assets, in the sense discussed earlier, should be divided equally. But it might well be fair to leave undisturbed whatever additional surplus each has accumulated during his or her working life.’
‘However, one should be careful not to take this approach too far. What seems fair and sensible at the outset of a relationship may seem much less fair and sensible when it ends. And there could well be a sense of injustice if a dual career spouse who had worked outside as well as inside the home throughout the marriage ended up less well off than one who had only or mainly worked inside the home.’
‘Mr Miller worked, and Mrs Miller gave up work to look after him. But there can be marriages, long as well as short, where both partners are and remain financially active, and independently so. They may contribute to a house and joint expenses, but it does not necessarily follow that they are or regard themselves in other respects as engaged in a joint financial enterprise for all purposes.’
‘If one partner (and it might, with increasing likelihood I hope, be the wife) were more successful financially than the other, and questions of needs and compensation had been addressed, one might ask why a court should impose at the end of their marriage a sharing of all assets acquired during matrimony which the parties had never envisaged during matrimony. Once needs and compensation had been addressed, the misfortune of divorce would not of itself, as it seems to me, be justification for the court to disturb principles by which the parties had chosen to live their lives while married.’
“the duration of the marriage may justify a departure from the yardstick of equality of division”
“there was a reason to depart from the yardstick of equality because those were business assets generated solely by the husband during a short marriage.”