M v M [2005] EWHC 528 (Fam)

This judgment is being handed down in private on 5 April 2005. It consists of 73 paragraphs and has been signed and dated by the judge. The judge hereby gives leave for it to be reported and suggests that in that event it is cited as M v M (Short Marriage: Clean Break).

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location.

Case No FD03D04472

[2005] EWHC 528 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 05/04/2005

Before

Mr Justice Singer

Between

M S MApplicant

A J R MRespondent

Mr Nicholas Mostyn QC and Mr Tim Bishop (instructed by Withers LLP) for Applicant Wife

Mr Martin Pointer QC and Mr Justin Warshaw (instructed by Messrs Sears Tooth) for Respondent Husband

Hearing Hearing dates: 11 to 15 October 2004

Judgment

An outline of the application

[1]Mr M (H) is 40. He has throughout his life lived in this country where, after leaving university and training as an accountant he began to work as an investment manager in about 1986. As a result of a winning combination of flair and hard work he has excelled. Mrs M (W) is 35. She was born, brought up and educated in America, where all her family still live. She came to live and work in Cambridge in the first months of 1995. In America she had acquired specialised knowledge of the investor and media relations requirements of pharmaceutical companies, and it was for a firm in that industry that she came to work in England.

[2]The parties met in the summer of 1995 and within a matter of months had embarked upon what became a protracted courtship, leading to engagement in July 1999 and marriage in July 2000. They never lived together continuously in the same household prior to their marriage, which was childless and ended abruptly when they separated on 23 April 2003, H leaving W in their matrimonial home where she continues to reside.

[3]W now makes application for ancillary relief, a decree absolute of divorce having been pronounced in February 2004. She seeks the transfer of their London home, and of a villa in the south of France which is currently in joint names. In addition she seeks a lump sum to bring her award up to a total of £7.2 million. H's position at the hearing has been that his offer of a lump sum of £1.3 million (on the basis that he retains the French property) is more than generous in the circumstances.

[4]These extremely polarised positions are in the context that the parties agree that H is currently worth of the order of £17.5M, plus whatever value should be attributed to the 200,000 shares which he owns in N Ltd, the fund management company of which he is a director and chief investment officer. In certain circumstances (which cannot be excluded although they appear unlikely) he might be obliged to dispose of his shares for their par value, £200,000. The contentions of the rival valuers from whom I have heard evidence indicate a range of between £12.35M and £18.11M for their value on a notional sale between willing vendor and willing purchaser. But in fact no such sale could take place in current circumstances, for a variety of reasons. There is also evidence that in early 2004 (when, amongst other factors, market conditions were significantly more favourable than they now are) H and the other shareholders had good grounds to hope that their shares might be marketable (admittedly over a period of perhaps five years, and thus subject to price fluctuation meantime) at an initial flotation price of about £130 per share. In H's particular circumstances (having regard to an option which he has given over 75,000 of the shares) this would (at an uncertain future date, over that period thereafter, and subject to post-flotation price movement) net him something of the order of £24.44M. It can, I hope, immediately be seen that valuing these shares raises complex issues.

[5]W's current financial circumstances are in stark contrast. If she paid her outstanding costs she would be more than £300,000 in overall debt. For this calculation I disregard the value of her share in the French house, her car and her modest jewellery, as well as furniture and other chattels which are to be divided. Put another way, if the liabilities which she has assumed to meet her costs are ignored then she has about £100,000 worth of assets of which £46,000 is locked in pension funds.

[6]This manifestly is a case for a clean break. No issue arises as to H's ability within a short space of time to pay the amount I propose to award W. Despite the illiquidity and the uncertainties regarding the N Ltd shares neither party suggested that W's award should await or be tied to their value when realised.

Some observations concerning the hearing

[7]I heard submissions and evidence over five days from 11 October 2004. On the first day I ruled that I would not shut out evidence from the parties about the reasons each gave for the breakdown of the marriage, notwithstanding a declaration embodied in the order made after the unsuccessful conclusion of the Financial Dispute Resolution hearing on 6 February 2004. That order recorded that W would not rely upon section 25(2)(g) of the Matrimonial Causes Act 1973: that is to say, that she would not assert that H had conducted himself in such a way that it would be inequitable to disregard his behaviour. I gave a short judgment on the question. In essence I took the view that in the particular circumstances of this case (notably the brevity of the marriage) it was not inconsistent with that declaration for W to seek by her evidence to demonstrate that the breakdown was largely if not entirely attributable to an intimate relationship H formed with the woman with whom he now lives, the physical separation between the spouses having occurred the day after he revealed the association to W. However, even if the declaration could be so construed, I took the view that W's evidence could not be circumscribed as to preclude her from airing this issue without which it would be impossible to gauge the strength and impact of the catalogue of complaints about her conduct during cohabitation advanced by H to seek to justify (as I find was his intention) his decision that the marriage had no future and/or to dilute what W asserts was the destructive impact of his adultery. His case is clear: he maintains that his new association was a consequence of an unhappy marriage rather than a cause of its breakdown.

[8]At the commencement of the hearing it was by no means clear to me whether or not by its conclusion attribution of responsibility for breakdown would constitute a relevant circumstance which I should take into account in reaching my award. But I was not prepared to take the risk inherent in excluding evidence of W's position on this question with the consequence that H's assertion would not be tested. I was encouraged in that course by observations made by Thorpe LJ in G v G (Financial Provision: Separation Agreement),

[2004] 1 FLR 1011

, where he said: [32] I come then to the final point, that the judge’s approach to the duration of the marriage was flawed. Mr Pointer’s argument, which is lucidly presented, goes thus. The judge considered that there were three respects in which the conduct of the husband was relevant to the quantification of the wife’s lump sum. One of those was the circumstances in which the marriage had broken down. The judge was highly critical of the husband in this regard. He held that his association with B was the major contributory factor to the breakdown of the marriage, and that the husband’s attitude to his misconduct merely demonstrated his lack of insight into the distress that it would inevitably cause the wife. The judge went on to say at 31:

‘However, taking all this into account, in my view it is not appropriate to increase the award which the court would make because of the husband’s bad conduct in this regard. Rather, I see it as a significant counterbalancing factor to the point made on behalf of the husband that this was a short marriage.’ [33] Mr Pointer says, quite persuasively, that this is in effect a mechanism for increasing the wife’s award by the back door in reliance on the husband’s conduct. He says that if she is not to be assessed as having an entitlement on the foundation of a 4-year marriage, on what greater length of marriage is she to be assessed? [34] The answer to that seemingly well-developed submission is, in my opinion, this. A judge has to do fairness between the parties, having regard to all the circumstances. He must be free to include within that discretionary review the factors which compelled the wife to terminate the marriage as she did. The point was essentially taken as a defensive shield to the reliance upon the duration submission. There must surely be room for the exercise of a judicial discretion between the pole of a wife who is driven to petition by the husband’s unfeeling misconduct and that of a wife who exits from a marriage capriciously and for her own advantage. It seems to me that the judge was doing no more than taking his bearings as to where he stood along that path. ‘However, taking all this into account, in my view it is not appropriate to increase the award which the court would make because of the husband’s bad conduct in this regard. Rather, I see it as a significant counterbalancing factor to the point made on behalf of the husband that this was a short marriage.’

[9]I agree with Mr Pointer (who in this case also represents the husband, appearing with Mr Justin Warshaw) that nothing which either spouse alleges against the other remotely constitutes conduct of such gravity that it would be inequitable to disregard it. Nor indeed does it approach the weight of the findings made against the husband in G v G. But that does not seem to me to detract from the 'fairness' point which Thorpe LJ was making. Indeed, as will appear in more detail below, I do as a result of hearing this evidence regard myself as better able to position myself fairly in relation to W's claims than otherwise would have been the case. I am moreover satisfied that H was not put at a disadvantage by this ruling. W did not seek to go beyond what she had already said on the topic in her affidavit evidence. I do not believe that H's case on these issues would have been improved by any more intensive preparation than had already been devoted to it.

[10]Each party gave evidence over a day. In addition I heard from Mr D, the chairman and prime mover of N Ltd. I also heard evidence from the two expert accountants, Mr Jeffrey Nedas of BDO Stoy Hayward instructed on behalf of W, and Mr Peter Clokey of Price Waterhouse Coopers LLP by H.

[11]The documentation in the case was vast, but it had been efficiently trimmed (albeit to six bundles) for use at the hearing. The thoroughness with which the applications have been pursued and defended, and the high level of professional skill applied, are reflected in the costs of the exercise which in aggregate exceed £800,000.

The development of H's business career and his wealth

[12]As stated above, H qualified as an accountant after university, and in about 1986 took up his first employment in investment management. In 1988 he was recruited by G Ltd, and in late 1994 was recruited to join J Ltd. This was a company which Mr D had established nine years earlier and which had in the meantime become a public company. Within a matter of months J Ltd was taken over by C Ltd in early 1995.

[13]The parties met that summer. W was living in modest rented accommodation in Cambridge where she worked, and continued to do so until a matter of two months or so prior to their wedding in July 2000. When they met H owned a flat in Paulton Square (subject, I believe, to a mortgage) and told me that he had between £500,000 and £1 million in savings. His recollection was that he was earning about £120,000 a year.

[14]I do not know what if anything H received in connection with the March 1995 takeover of J Ltd by C Ltd. But the consideration for the takeover was payable in two tranches, the second of them in December 1999, so that in March 2000 H was paid £20 million gross pursuant to the formula which had earlier been agreed. Meanwhile he had in about 1997 been instrumental in the launch of the J Ltd Hedge Fund, an innovative investment vehicle which proved to be extremely successful.

[15]C Ltd would have been deeply unhappy about the very unexpectedly large payment required under the formula for them to acquire the final tranche of J Ltd shares. This led to serious disagreement between them and Mr D, which did not come as an entire surprise to him. I entirely accept his evidence that he had been preparing for what he rightly anticipated might be his dismissal, which occurred in May 2000. To this end he had been laying the foundations upon which he hoped to establish a new enterprise, the rival fund management company which became N Ltd. I am also fully satisfied that, from this perspective, H would be a significant asset if his release by C Ltd could be achieved, not least because he would be likely to bring with him a valuable trio of significant investment funds. I have no reason to doubt that tentative discussions along these lines commenced with H, and with others, from about December 1999 onwards.

[16]In February 2000 H, by now since July 1999 engaged to marry W, bought what was to be their SW3 home for £1.8 million. It now has an agreed value of £2.35 million and a net value after redemption of mortgage and sale costs of £1.78 million.

[17]No doubt in anticipation of their marriage, W left her Cambridge flat and job and moved to work for a public relations firm in London as an associate partner at a salary (including bonus) of £85,000 a year. But she stayed with mutual friends in London and (as already stated) the parties did not move into their new home together until after the marriage in July 2000.

The circumstances of the N Ltd share acquisition

[18]Mr D and J Ltd/C Ltd parted acrimoniously on 22 May 2000. An action for damages for wrongful dismissal swiftly ensued. The corporate vehicle N Ltd was acquired in early June and steps taken to achieve the regulatory compliance necessary before trading could commence. It was an open secret that Mr D aimed to negotiate his way out of restrictive covenants (for others as well as for himself if that could be achieved) and to set up in competition with J Ltd just as soon as he could. I am left in no doubt upon his evidence, taken with that of H, that Mr D set about forging the strategic alliances which would enable his project to prosper, assuming that he would indeed be able to get it off the ground.

[19]To this end, according to them both, the parties visited him at Mr D's country home at the end of May 2000.

[20]I am entirely satisfied from the evidence of H and of Mr D that they reached what each regarded as an agreement binding in honour upon them: what Mr D describes as a 'my word is my bond' arrangement. True as points out Mr Mostyn (who with Mr Tim Bishop represents W) it could not be immediately operative even if indeed it could be regarded as legally enforceable. Neither participant was in a position to agree other than conditionally that H would move to Mr D's new company, and would in doing so in all likelihood bring with him a personal following of hedge fund investors of very significant importance to Mr D's strategic plans. Mr D could not at that stage make good his offer of employment to H, nor implement the arrangement both men say was made for H to take up 200,000 shares in the company at £1 each. For both H and Mr D were contractually bound by non-competition clauses to C Ltd, and the new company was still on the shelf rather than acquired for Mr D's purposes. But I have no doubt, having heard their evidence, that these were the arrangements they then agreed, and in due course put into effect once Mr D had leased the shackles that inhibited them both. This he achieved when he struck the negotiated settlement of his unfair dismissal action against C Ltd in November 2000. I am not persuaded that the delayed description (in the evolution of the evidence in the case) of this meeting and its effect was contrived, as was suggested on W's behalf.

[21]There has been much emphasis on the timing of the events whereby (in legal terms in January 2001) H became the purchaser of 200,000 shares, the shares whose value for the purpose of these proceedings has been so much in dispute. H may have received them at what may have been the bargain price of par, and if a bargain that may have had as quid pro quo the value H brought to the fledgling company. Or (at the other extreme) they may now be worth hardly more than when they were purchased. This is because of the perception of the parties and their advisors that the outcome of W's claims might be significantly affected one way or the other depending upon whether the share acquisition should be regarded as having taken place before or after the July 2000 marriage; and by what view I might take as to the effect, amongst the circumstances of the case, of the nature of the parties' relationship leading up to their engagement in July 1999, and indeed between that date and the marriage. As will become apparent, I am unable to subscribe to the view that, in this case, such considerations can affect what outcome is fair to both parties as radically as each legal team, in diametrically opposite directions, has so strenuously argued.

[22]H moved to N Ltd in January 2001 and now holds the position of Chief Investment Officer, with (in addition to his fund management responsibilities) responsibility for the task of ensuring compliance by his 40 or 50 subordinates with all manner of regulatory imperatives. This is a responsibility that carries with it a risk that it may be necessary for his head to roll if there are breaches by others for which he carries the equivalent of ministerial responsibility. I do not doubt Mr D's evidence about that risk. Nor can I discount to the extent to which I was invited to do so the risk that failure to deliver satisfactory results, or serious lack of judgment (of which one episode was described) might make H vulnerable to losing his employment and being required to dispose of his shares at par rather than for any of the significantly higher values that have been canvassed as within their potential over time.

[23]That apart, it is clear that in this highly competitive and stressful environment H has for the most part been very successful, although the financial measure of his success in terms of his remuneration is to an extent in the lap of the market. His basic salary is £180,250, but he is entitled to a bonus which depends on a formula. It is volatile, cannot be calculated until each 31 December, and may in a bad year amount to nil. For 2003 it was around £3M gross.

Other properties

[24]Since the parties' separation in April 2003 H, who originally went back to live in his bachelor flat, has purchased a substantial property in Chelsea for £6.25M where he lives with the other lady and her teenage daughter. The fact that the property is subject to a mortgage of £2.5M is neither here nor there as H could redeem it were he to choose to do so, if not immediately then in due course. That is the measure of the accommodation need which he regards as appropriate for himself and what I assume he regards as his new family.

[25]Meanwhile, during the marriage, the parties purchased a villa in the south of France upon which significant expenditure was lavished both as to its fabric and its contents and equipment. It is now valued at £920,000 net after sale expenses. W maintains that H announced his intention on the occasion of her 32nd birthday in 2001 to give her this property by handing her a voucher inviting her to find a suitable home in France at a price of up to £750,000. H says that W has misconstrued what he wrote, and that although it did indeed constitute an invitation to find such a property to convert into their weekend and holiday home, it in no way suggested expressly and could only by mistake be interpreted to signify that the property was to be hers rather than his or (as it was indeed purchased) theirs. W relied on affidavits from two of her friends who say that they too formed the view from the way that H revealed his intention to make the present that what he was giving was the house rather than the commission to find and convert it.

[26]My conclusion in relation to this is that there may well have been an element of mutual misunderstanding about what was intended by H. I have to say that he does not strike me as the most obviously spontaneously generous of men. I think he may have intended and indeed conveyed an ambivalent message. W is more romantic, more susceptible to warm emotion, and thus in my judgment may well have misread H's more tentative intentions. She seeks a transfer of the property to her. He asks to have it transferred to him. Each claims to have the more significant attachment to it than the other. I have no doubt W is right that she was far more absorbed in the grand scheme as well as the minutiae of the property's conversion, albeit with professional help and at H's unstinted expense. But it does not seem to me to be a requirement of fairness in this case that W should have a second property in France worth over £1m pounds gross. As part and parcel to the solution of their financial claims she will transfer the villa to H alone, unless of course they wish to adjust the pattern of the award once they know its overall tally.

The relevant length of the parties' relationship

[27]From marriage to separation these parties lived together as spouses for 2¾ years. The marriage in terms of cohabitation was therefore brief. But two factors are urged by Mr Mostyn which he says should affect the weight to be given to the duration of the marriage as a circumstance of the case to be taken into account when performing the section 25 exercise. The first is what he asserts was the exclusive and committed nature of the parties' relationship for the 5 years prior to their marriage in July 2000. The second is the factor already referred to, that W was not a wife who capriciously ended their marriage, but rather one whose expectations that it would continue were dashed by H's decision to terminate it.

[28]As to the nature of the parties' relationship before their marriage, it was undoubtedly close and apparently exclusive virtually from the outset. Their physical relationship was established from the summer of 1995 onwards. There were two limiting factors which take the case out of the ordinary. Until the marriage the parties never co-habited and indeed until shortly before the marriage they did not live in the same city. But I am satisfied that they spent the overwhelming bulk of their leisure time together and were in virtually daily contact. Those were the practical and geographical boundaries of their relationship. Emotionally the position was, in my assessment, more complex. Of course their relationship developed over time until their engagement resulted in July 1999 from a formal proposal made by H. Until then W was hoping to marry H with more enthusiasm than he was demonstrating for that commitment, in my judgment. He had been married before and was wary of repeating the experience. For her part, W says a factor which militated against setting up home together before the marriage was her and her family's more traditional attitudes, which some might call old-fashioned, that marriage is the moment to establish a joint life together. That, she says, explains why even in the period immediately before the marriage, when she had left Cambridge to live in London she stayed with friends rather than move with H into the house they had already bought as their matrimonial home.

[29]This rather tentative relationship, at least on H's part, until their engagement does not fit entirely happily to my mind with the epithets 'exclusive' and 'committed' which Mr Mostyn invites me to apply. But it was certainly several grades more significant than H's rather dismissive description of it as one merely of 'girlfriend and boyfriend'.

[30]The modern authorities on the topic have been culled for comparisons. I have been referred to, amongst others, the reported cases of GW v RW (Financial Provision: Departure from Equality)

[2003] EWHC 611 (Fam)

[2003] 2 FLR 108

; M v M (Financial Relief: Substantial Earning Capacity)

[2004] EWHC 688 (Fam)

[2004] 2 FLR 236

; the first instance decision in the case of Parlour (referred to below) reported as J v J (Ancillary Relief: Periodical Payments)

[2003] EWHC 611 (Fam)

, [2004] 1 FCR 709; and CO v CO (Ancillary Relief: Pre-marriage Cohabitation)

[2004] EWHC 287 (Fam)

[2004] 1FLR 1095

at [39] to [48]. There is not a case in the calendar where a court has expressly taken into account (whether while assessing the impact of the duration of the marriage, or simply as a circumstance deemed relevant) a relationship which did not involve cohabitation. Moreover, and self-evidently, these parties did not mingle their finances, purchase or rent property together or have a child.

[31]If the whole of the nearly 8 years from the summer of 1995 or thereabouts until separation in the Spring of 2003 were to be treated as in some way analogous to marriage in the manner described (for example) by Coleridge J in CO v CO, then my instinct would be that W would be fairly entitled to an ampler financial outcome than if in fact what falls to be assessed is the appropriate award at the end of, say, an almost 4 year relationship from engagement to separation. Whether that instinct is one that I can follow in the post-White era is one of the issues in the case with which I must grapple.

[32]My conclusion on the facts is impossible to state other than as an impression, of which the impact on the award is necessarily unquantifiable. I do not regard the absence of cohabitation as definitive, one way or the other. Into the balancing exercise I will put the fact as I find that there was no mutual commitment to make their lives together until their engagement in July 1999. Until then their ties were tentative, and their separate expectations did not accord. In this relationship there was no pre-engagement honeymoon to blend seamlessly into marriage. I tend therefore to favour Mr Pointer's submissions and treat this as a marriage of relatively short duration.

[33]What then of the parties' disengagement: where along the path described by Thorpe LJ in the cited paragraph [34] from G v G do I find myself positioned?

[34]H made a number of criticisms of the way in which W conducted herself during the marriage. He was obviously irritated by aspects of her personality, which, if I may say so it is surprising he had not appreciated before their marriage even without that proving period which cohabitation might have provided. She clearly is house-proud, to an extent which then (or increasingly with retrospection) he found irksome. She did not appreciate it when he returned home late from work-related functions. She was sensitive to any suggestion that he might be developing an interest in women other than herself, and this he regarded as unreasonably possessive. He paints her as a woman who threw herself enthusiastically into an idle lifestyle of shopping and self-indulgent social pursuits. He did not find her style congenial when he returned home after a long and hard day's work. He undoubtedly became depressed, but in my view that was in response to a variety of pressures, by no means all related to his relationship with W.

[35]She for her part believes that she was suitably supportive and that she performed diligently what she saw as her role as companion and homemaker. She believes that he was in no way averse to her ceasing to work for what he regarded as mere play money, and that there was certainly a side to him that approved and even delighted in her indulging herself (and him) in pursuit of a lifestyle which he could well afford, but which he did not have the time to develop for himself. On these last topics I believe her perception is the more accurate.

[36]Until only a few months before their separation these spouses were both hoping to have a child. He disengaged from that process at a time when he may well have sensed at least the beginnings of the relationship that led him to leave W.

[37]This marriage may well have been doomed, but my conclusions as an analysis of the explanations that I heard from both of them are these. H may well have developed an irritation with aspects of W's personality and behaviour. This reflects more his lack of adaptability than any shortcomings on her part. The sum of what he complains of is not marriage-breaking stuff. I do not subscribe to his view that his burgeoning relationship with the woman with whom he lives was a consequence rather than a cause of the breakdown.

[38]None of this, to state the obvious, is conduct which it would be inequitable to disregard in arriving at a resolution of the financial dispute. But it has the result that it would be unfair to W to concentrate solely on the bare chronology of this marriage without acknowledging that she did not seek to end it nor did she give H any remotely sufficient reason for him to do so.

Other relevant section 25 factors

[39]There are other section 25 factors upon which I must comment.

[40]I heard and read some evidence about W's future career and what she might expect to earn from it. She would prefer not to return to the same sphere of employment, but were she to do so she would need 3 to 5 years to reinstate herself to a comparable position and salary level, upon the basis of evidence from an employment consultant instructed by H. Her preference could be to pursue her interest and what her current part-time employer regards as her flair for interior design, with the hope that after some three years or so further experience as an employee she may be in a position to establish her own consultancy practice. It is certainly not for this court to tell her which course she can and should adopt. It is understandable that H regards the interior design project as a tactical distraction intended to limit her future self-sufficiency or at least to render it more speculative, as well as a support for her objective of retaining their current home with its extra space part of which she could use as an office. Although I shall refer as a point of reference only to a Duxbury calculation I do not propose to decide this case upon the basis of any strict or even tangential reliance upon that to fix the award, and so the disparity between the parties' positions on this is of scant importance in my view. W should be in a position and will be so as a result of the award to choose her own career path. But that she has and should exercise an earning capacity given her age and aptitude is incontestable, and I take it into account as one of the factors in the case.

[41]For the sake of completeness I mention that I heard no evidence in relation to any inheritance prospects that either party may have. As for any other financial resources each is likely to have in the foreseeable future, W has none in particular in prospect. She may remarry but that possibility does not affect the outcome of this application. On H's side there is every prospect unless some disaster strikes that he will maintain high earnings (including substantial bonuses at least from time to time) and will be able to make savings from his income. In addition there is a good likelihood that at some stage the potential of his shares will be unleashed. If at that or any stage his employment with N Ltd ceases then I anticipate again, barring the small but incalculable risk of corporate or personal disaster, that H's career will not be spent, and that he has at the very least some years of productive endeavour ahead of him even if he does not achieve the longevity of his mentor, Mr D, in this taxing market place.

[42]Neither party has any physical or mental condition of which I am aware which it would be relevant to take into account.

[43]W's contributions to their family life were non-financial (save to the extent that she worked at the start of the marriage). She aspired to provide, as I have said, the domestic and social fabric in which they could both enjoy the fruits of H's success and the opportunities for leisure, relaxation and enjoyment which were available. A major contribution in this context was the planning and oversight she brought to the refurbishment, equipping and furnishing of the French property to which H has become so attached. Neither the modest period during which she was able to make this contribution nor the very considerable scale of H's efforts and the rewards they brought him affect the proposition, which I accept, that incommensurable though these contributions are as chalk and cheese, nevertheless no discriminatory attitude should be allowed to treat them as other than equivalent.

[44]Pensions have not figured as a feature of this case.

[45]All in this judgment which precedes this point goes to inform my overall conclusion, to be arrived at in light of the view of the law applicable to circumstances such as these in the non-discriminatory era brought in by White.

The approach to be applied in short but wealthy marriage cases

[46]Mr Pointer advocates a restrictive approach culled from decisions given during the operation of the 'reasonable needs as the touchstone of wives' awards' era denounced in White by Lord Nicholls as discriminatory. He invites me to follow the lead of reported cases such as S v S

[1977] Fam 127

, CA; Robertson v Robertson

(1983) 4 FLR 387

; Attar v Attar (No. 2)

[1985] FLR 653

. All these cases pre-date the 1984 amendment which excised from section 25 the then requirement for the court so to exercise its powers as 'to place the parties so far as it is practicable and having regard to their conduct just to do so in the financial position they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other.' But (in particular in S v S and in Attar v Attar) the court recognised the artificiality and impracticality of that injunction in the context of very short marriage cases. But in these and the subsequent pre-White case of Hedges v Hedges

[1991] 1 FLR 196

, CA, the emphasis was on rehabilitation of the wife, or even restoration of her pre-nuptial financial circumstances where that is practicable. Thus in Robertson one sees reference to the purpose of the award being 'to enable the wife to get on her feet'. In the decision with the closest resemblance to the facts of this case (in terms of the means of the parties, although the marriage was exceptionally short, amounting to 7 weeks cohabitation over 6 months) Booth J in Attar focused on the effect of the marriage on a young wife well able to work, and commenced her calculation with a lump sum representing 2 years loss of income.

[47]Such an approach might well still be appropriate in a case as ill-starred as the Attars. But Booth J closely followed the approach of Ormrod LJ in S v S (a Court of Appeal case in which she had appeared as leading counsel for the successful wife), considering what effect the marriage had had upon the wife's financial position and looking at her reasonable requirements in the light of the situation she would have been in if the marriage had not taken place.

[48]I can therefore accept that there may be cases - relatively extreme cases - where such an approach would remain valid. But I am satisfied that it would not be fair to apply it in this case. For what it ignores is the key element to my mind present here. That is that by virtue of this marriage, taken in its proper setting both in terms of the way it was reached and the way it ended, H gave W a legitimate expectation that she would on a long-term basis be living on a higher economic plane that the rented flat and her £85,000 p.a. job had afforded her when she left them to live with him as his wife at the house he bought for that purpose. It would in my judgment quite simply be unfair to take the view as submitted by Mr Pointer that £500,000 for the purchase of a flat and £120,000 to cover 3 years of revenue shortfall until she could recoup her position in her specialist field would be adequate, and thus that H's £1.3M offer is very generous.

[49]But it by no means follows that I adopt the rival contentions advanced by Mr Mostyn for W. Her case is presented on the basis that I should as a starting point calculate what capital has been accumulated during the marriage (or such longer period as I might consider appropriate). This 'matrimonial acquest' in this case means looking only at H's position, as W (her share in the French property apart, which derives in any event from H) has not prospered in capital terms over the span under consideration.

[50]This approach, to take out of the equation against which the yardstick of equality is to be held as a test assets owned by a spouse before the marriage, derives – in English law – from the following passage from the speech of Lord Nicholls in White v White

[2001] 1 AC 596

[2000] 2 FLR 981

at 610 and 994 respectively:

'Inherited money and property I must also mention briefly another problem which has arisen in the present case. It concerns property acquired during the marriage by one spouse by gift or succession or as a beneficiary under a trust. For convenience I will refer to such property as inherited property. Typically, in countries where a detailed statutory code is in place, the legislation distinguishes between two classes of property: inherited property, and property owned before the marriage, on the one hand and "matrimonial property" on the other hand. A distinction along these lines exists, for example in the Family Law (Scotland) Act 1985 and the (New Zealand) Matrimonial Property Act 1976. This distinction is a recognition of the view, widely but not universally held, that property owned by one spouse before the marriage, and inherited property whenever acquired, stand on a different footing from what may be loosely called matrimonial property. According to this view, on a breakdown of the marriage these two classes of property should not necessarily be treated in the same way. Property acquired before marriage and inherited property acquired during marriage come from a source wholly external to the marriage. In fairness, where this property still exists, the spouse to whom it was given should be allowed to keep it. Conversely, the other spouse has a weaker claim to such property than he or she may have regarding matrimonial property. Plainly, when present, this factor is one of the circumstances of the case. It represents a contribution made to the welfare of the family by one of the parties to the marriage. The judge should take it into account. He should decide how important it is in the particular case. The nature and value of the property, and the time when and the circumstances in which the property was acquired, are among the relevant matters to be considered. However, in the ordinary course, this factor can be expected to carry little weight, if any, in a case where the claimant’s financial needs cannot be met without recourse to this property.'

'Inherited money and property

[51]A consequence of this approach might be to disregard H's existing worth as at the date of the marriage and to attempt simply to calculate the accretion. A variant would be to disregard assets he owned prior to the marriage (or arguably had earned, or was already entitled to acquire at that point) not only as to their value when acquired or at the time of the marriage, but also so as to leave out of account any increase in value since then. It is of course in this connection that the value to be attributed to the shares and whether there is a distinction to be drawn dependent upon their acquisition date being before or after the marriage assume apparent significance as issues in this case.

[52]There are no doubt cases where such an exercise in historical accounting could be expected to produce a single result about which one could feel reasonably confident. But the range of arguably acceptable results would in very many cases be wide, and depend upon methodology and valuation issues upon which experts and lawyers could expand, but arguably not to the obvious benefit of their clients nor of the judges tasked with finding that elusive but quintessentially easier to recognise solution, a fair answer. Comparisons with matrimonial régimes in Scotland, continental Europe and beyond could no doubt be drawn with what might soon become odious regularity. Indeed both sides in this case indulged a zeal for comparative analysis which I fear has no more assisted me than it did the Court of Appeal in McFarlane v McFarlane, Parlour v Parlour

[2004] EWCA Civ 872

[2004] 2 FLR 893

: see Thorpe LJ at [47], [48] and [110]). Although the context in which he spoke was the 'categorisation of the defining purposes of periodical payments' I gratefully adopt the following sentences from [106] which seem to me to be entirely apt to the evaluation of capital entitlement in this case:

'The Judges must remain focused on the statutory language albeit recognizing the need for evolutionary construction to reflect social and economic change. The statutory check list and the overall circumstances of the case allow the judge to reflect factors which are said to be inherent in either the entitlement model or the compensation model. But to adopt one model or another or a combination of more than one is to don a strait-jacket and to deflect concentration from the statutory language. Clearly in the assessment of periodical payments as of capital provision, the overriding objective is fairness. Discrimination between the sexes must be avoided.'

[53]I draw attention to the analogous problems which can arise in relation to acquest by inheritance. It now seems to be well established that the extent to which such extraneous accretions should be taken into account or disregarded, treated as impenetrably ring-fenced or vulnerable to invasion, must depend on the circumstances of each case and the extent to which the essential needs of both spouses can be met without such an invasion. I agree with what Bennett J had to say on this topic at [59] to [68] in Norris v Norris (No. 1)

[2002] EWHC 2996 (Fam)

[2003] 1 FLR 1142

[54]If no dogmatic 'one-size fits all' treatment can in fairness be promulgated for inheritances then why, I ask myself, should the courts submit to or apply any rigidly theoretical approach to the treatment of pre-marital as against after-acquired assets, and accretions thereto? The statute contains no such imperative whether we like it or we loathe it. Its foundations are deeply settled into what some may regard as the uncertain quicksand of judicial discretion, to be exercised within a reasonable ambit. This does however have the merit not only that when the parties cannot reach agreement the court can tailor-make the solution, but also (as recent jurisprudence shows) that the trend and blend of solutions chosen can adapt to reflect and sometimes even to anticipate that social and economic change of which Thorpe LJ spoke.

[55]Mr Mostyn's final submission was that I should make an order that would provide W with 37.5% of what, on the evidence, he invited me to find was the increase in H's wealth during the period of the marriage. That would lead to the figure for an overall award of about £7M (plus a share of chattels which has now been agreed). The figure is of course largely dependent upon taking the shares to have a value of broadly £20M (per Mr Nedas) rather than about £14M (per Mr Clokey).

[56]Whether I take this range or that between £18.11M and £12.35M referred to in [4] above, the important feature is the span of about £6M which they both share. Mr Mostyn's 37.5% proportion predicates a differential of £2.25M if that is indeed the evidential gulf. If I preferred Mr Clokey's presentation I would award W £2.25M less than Mr Mostyn seeks on her behalf, reducing the total award from over £7M to just £5M.

[57]This, if I may say so, seems even more an exercise in throwing dice or playing Russian roulette with one-armed bandits than does relying on a judge's instinct for what is fair when he weighs a gamut of circumstances and produces his or her result out of the hat of fair outcomes. For in reality the uncertainty and the element of chance (or as the French would put it, hazard) inherent in such a forensic valuation gamble are at least as daunting as the unpredictability of the product of the section 25 exercise.

[58]This is particularly so in a case such as this where the accountancy fees involved in producing almost 200 pages of forensic reports, with such irreconcilable positions trenchantly maintained throughout, are horrific. I do not have a separate figure for the forensic accountants' charges, but my belief is that they are likely to make up the lion's share of the disbursements including VAT which totalled just over £200,000 at the commencement of the hearing before me.

[59]It does seem to me wholly wrong and artificial, particularly in this case, were I to be bound to apply the yardstick of equality as a measure of fairness to a matrimonial estate the scale of which depends so significantly on the hypothetical valuation arrived at by judicial evaluation of the experts and their methodology. That judicial evaluation must be formulated by reference to the highly sophisticated and abstracted and in many areas vehemently contradictory opinions of experts who end up £6M apart, 33⅓% of a maximum valuation of £18M. What confidence can that give the judge or the parties in the validity of an exercise which can throw up such disparity, but is yet to be the basis for fixing the matrimonial award 'fairly'?

[60]The answer, in my judgment and at least in this case, is that I derive no assistance at all from the minutiae contained in these reports nor from the oral evidence of the protagonists (for such they have become) in support of the soundness of their own position and the transparent baselessness of the other's. Nor is the process of sifting wheat from chaff assisted by the sophistication which experienced counsel bring to the fray, each emphasising what may or may not be the weaknesses in the other's expert's presentation. If I may just put in a word for this judge: I have some pretence to a degree of numeracy and some acquaintance with the basic process of share valuation. But when confronted with expert witnesses of the degree of experience and sophistication in their rarefied specialities as Mr Nedas and Mr Clokey, each apparently as reasonable and persuasive in the witness box as the other, how am I to choose between them, or independently to arrive at my own figure in contradiction to them both?

[61]I content myself in this case with the observation that they may both be right without either of them being wrong. The future value of these shares is unfathomable and in this case in my view their present value is inestimable. But in any case neither of these experts can exclude the possibility that events may dictate that all H gets for his share is the £200,000 he paid for them. That outcome may not be probable, but am I nevertheless bound to ignore it?

[62]Can I also ignore the even more potent consideration that at the present time the most obvious certainty is that H could not do anything to realise these shares at more than their par value? How then can it make sense to base so large an element of W's award on so uncertain a foundation? The reality is that the shares are in my view simply not susceptible to sensible valuation as at the hearing date. It is pointless to try to ascribe a single value to them, when the true range is from £1 each to the limits of the sky. But, I repeat, neither party proposed treating W as the beneficiary of the proceeds of disposal of any specified number of shares, no doubt because she is not prepared to await the uncertain event at its unpredictable date; and he may hope to achieve an award to her which is based on an underestimate of whatever may be their eventual proceeds.

[63]What I can be reasonably confident about is that unless in the meantime H has triggered an obligation to dispose of his shares at par if he leaves N Ltd in circumstances that impose that requirement, he is likely to receive £6M gross upon the exercise by the end of December 2006 of the option he was required to enter into to sell 75,000 of his shares for £80 each. Quite apart from any bonus earned since the end of 2003 therefore, he has a reasonable prospect of significant capital injection at that point.

[64]This then as it appears to me is one of what may be a rare group of cases where the attempt to measure what the yardstick of equality should be set against is to beat the air or to hunt a chimaera. The game is simply not worth the very uncertain and extremely expensive candle. Fairness can be better achieved, in my view, by carrying out the discretionary exercise ordained by the statute in recognition of all the relevant factors. Amongst those the short duration of the marriage, set in the context of its factual matrix as I have attempted to do, is undoubtedly very significant. Of course I must strive to avoid a discriminatory approach based on outmoded concepts of differential financial and non-financial contributions. I must reflect what I believe is that modern approach by not limiting the award to an amount which will put this wife back where she was or which will, rather patronisingly, put her back on her feet.

[65]Rather, as it seems to me, the award should recognise that H has by this marriage, notwithstanding its short duration, given W a reasonable expectation that her life as once again a single woman need not revert to what it was before her marriage, and that she should be able to live at a significantly better standard in terms of accommodation and spendable income, even if at one which does not approach the level that H can afford for himself and his new family.

[66]But I would not, I have to confess, in this case feel the slightest difficulty in departing from equality, were that a valid exercise. Nor, it must be said, does Mr Mostyn. He discounts to 37.5% by reference first because of the undoubted fact that H brought very valuable acquired expertise and acumen to this marriage, so that he was in the GW v RW sense already fully 'fledged'; and, second, because of the brevity of the marriage.

[67]I therefore share the instinctive approach of Mr Mostyn in judicial mode in GW v RW echoed by Baron J in M v M where at [55(6) and (7)] both their points of view emerge. I do not know the firm answer to the point which as advocate Mr Mostyn makes in this case, which is to ask where the moment of transition is in terms of years between a wife who must expect less because her marriage was not long enough and she who can expect full entitlement. I suspect that there is no firm answer to that question and that, again, within limits it will depend upon the instinct of and approach of the judge in the individual case.

[68]I appreciate of course that in her leading judgment in Foster v Foster

[2003] EWCA Civ 565

[2003] 2 FLR 299

, CA, Hale LJ (as she then was) at [19] said:

'The duration of the marriage will obviously be relevant in cases where one party's earning capacity may have been seriously affected by a long period devoted to home making and child rearing, but [counsel for the wife] eventually had to accept that where a substantial surplus had been generated by their joint efforts, it could not matter whether they had taken a short or a long time to do so'

[69]But the court was there dealing with what in effect was a joint venture to which the spouses had made unequal contributions over the duration of a short marriage. I do not seek to confine the importance of what was said to the specific facts of the case, but emphasise the defining phrase 'where a substantial surplus had been generated by their joint efforts'. It is always dangerous to second-guess a judge of the Court of Appeal, and even more so one who has moved onwards and upwards, but I do wonder whether the Court of Appeal's decision would have been the same if the same substantial surplus had been generated over the same time by one spouse using his or her pre-marriage assets or on the back of his or her pre-marriage 'fledged' experience. In support of this perhaps heretical observation I pray in aid what Hale LJ said at [21] that the fact, that property inherited or pre-acquired might in fairness lead to the spouse to whom it belonged or was given being able to keep it, was only one of the circumstances of the case which in ordinary course would not carry much or any weight if recourse must be had to it to satisfy the other party's needs.

The Award

[70]My conclusion is that W should have the opportunity to retain the former matrimonial home for as long as she chooses to live in it. Subject to any adjustment to the form of the order to accommodate her potential exposure to US tax I intend that it should be transferred to her free of mortgage. That will involve H paying off the liability of about £500,000 secured on it or adding it to the lump sum payment to enable W to redeem it herself. The value of that property after deduction of notional sale costs has been taken as about £2.3M.

[71]In addition a fair outcome to this case is that H will pay W a lump sum of a further £2.7M. If the Duxbury methodology is taken simply as a guide then the computer programme Capitalise suggests that for a woman soon to be 36 a fund utilised in accordance with usual principles would generate an initial annual net income of about £98,000.

[72]That is very significantly less than the budget of well over £200,000 which W asserted was the sum of the costs met by H in the last year of cohabitation, suitably trimmed to reflect his departure. She will not be able to afford that standard, but with an income of that order plus whatever she can earn she will be able to live to a very tolerable standard in that house.

[73]A global award equivalent to £5M (plus the furniture and chattels which have been agreed) seems to me a fair outcome irrespective of whatever value H in due course may achieve for the N Ltd shares.