‘To the extent that the focus is on the matrimonial acquest, the period during which the parties were making their different mutual contributions to the marriage has obvious relevance … it seems to me therefore natural in this case to look at the period until separation.’ [117] This mutual support could have diminished, or ended, before the parties split up but the guidance given as to the effect of conduct by the House of Lords means that in this case the first possible point, or line, to identify the matrimonial property is early January 2005 (the husband having announced dissatisfaction with the marriage on24 December 2004 and having left the matrimonial home on9 January 2005 ). ….. Correctly no earlier date was argued for.’
‘Counsel submitted that the use of net values in this situation should be discontinued. I do not agree. As with so much else in this field, there can be no hard and fast rule, either way. When making a comparison it is important to compare like with like, so far as this may be possible in the particular case.’
‘Accordingly, if this issue [of potential CGT] were an important one (which I do not think it is) I would not be inclined to deduct CGT on the entirety of the wife’s holding. Equally, however, in the fullness of time and as things turn out, she may wish to bring some of her fortune into this jurisdiction, as she has done on some occasions in the past, thus attracting CGT on the proportion remitted. There is no way of anticipating this in any informed way. So taking a broad brush, I would deduct latent CGT on an arbitrary£10m worth of her shareholding, but would not deduct it from the balance of the share holding. I consider that this discretionary although speculative approach is open to me, as there is ‘no hard and fast rule’ and because I think it is the best way to produce a fair and realistic determination on the issue, given the unusual facts of this particular case. The gross kitty, therefore, reduces in size accordingly.’
‘In circumstances such as those pertaining here, suggested guidance as to maximum and minimum likely outcomes does little to assist. Each case simply has to be looked at on its own particular facts and fairness achieved by the exercise of judicial discretion based on those facts, informed by the s 25 exercise and by the authoritative guidance referred to at para [42] to [47] above [relating to various quotations from the judgments of the House of Lords in Miller]. It is for this reason that the schedule of ‘Cases involving extra-matrimonial property’ referred to at para [49] above [being cases cited by Mr Pointer QC who had acted for the husband in that case] if only of limited informative value and not in the end compelling as regards determination of the actual outcome.’
‘… if there is a risk of a tax liability of$100m (so that W’s share would be$50m ), and it will be determined within, say, 12 months then it would probably be reasonable to require an indemnity. If there were a minor risk of a tax bill of$2m which will not be determined for 5 years then it would be unreasonable and inconsistent with the court’s objectives [to achieve a clean break at the earliest opportunity pursuant to s25A] to require an indemnity.’
‘It would, in our view, avoid sterile arguments, and expense to the parties, if the English courts were, in cases involving a Jersey Trust, having calculated their award on the basis of the totality of the assets available to the parties, to exercise judicial restraint and to refrain from invoking their jurisdiction under the Matrimonial Causes Act to vary the trust. Instead they could request this Court to be auxiliary to them … we can see no reason why the trustee or one or more of the parties before the English court as the case might be, should not be directed to make the appropriate application to this court for assistance in the implementation of the English court’s order. It appears to us that this would be a more seemly and appropriate approach to matters where the courts of two civilised and friendly countries have concurrent interests. It would furthermore be more likely to avoid the risk of the delivery of inconsistent judgments.’
‘The Court is not being asked to weigh the risk or to act as a Tax Tribunal but to accept that if there is any tax risk then it must be taken into account when W’s award is made.’
‘[S]ection 25(2)(g) recognises the difficulty and undesireability, except in egregious cases, of any attempt at assessing and weighing marital conduct. I now recognise the same difficulty in respect of marital contributions – conduct and contributions are in large measure opposite sides of a coin.’
‘There may be cases where the product alone justifies a conclusion of special contribution but absent some exceptional and individual quality in the generator of the fortune a case for special contribution must be hard to establish.’
‘[87] Mindful of the postscript to the judgment of Coleridge J …… we have wondered whether, in order to help courts to perceive the circumstances in which, subject to our remarks in para [80], above, the generation of substantial wealth during the marriage might qualify as a special contribution, we should identify a threshold of wealth below which a court would be unlikely to conclude that it was the product of a special contribution. It is obvious that any such guideline would have to be laden with qualification so as to avoid any impermissible gloss on the court’s duty under s 25 to assess each case on its merits. Subject to that caveat, we invited counsel to make submissions upon the threshold. Both Mr Singleton and Mr Pointer were rightly tentative. Mr Singleton suggested a threshold no higher than£40m or£50m . Five years ago, in Lambert, Mr Pointer had suggested a threshold of£10m , in relation to which Thorpe LJ stated, at para [46], that it was ‘futile and dangerous even to attempt to speculate on the boundaries of the exceptional’
‘[43] It is clear to me that the husband is a very able business man. He has a number of important skills that have enabled him to create two very successful businesses in the field of cutting edge technology. He has excellent computer skills. He is a very good salesman. He is clearly good administratively. He is able to lead a team and motivate his staff. He has deserved all his success. [44] Nevertheless, I am quite satisfied that, applying the authorities, this does not amount to a “special contribution” such as to amount to a good reason for departure from equality. It would not be accurate to describe him as a “genius”. Equally, whilst the extent of his business success is rare and something to be applauded, it cannot be said to be “exceptional”. I did not in any way get the impression that it was something that it would be inequitable for me to disregard. [45] I realise that the quantum of the fortune amassed by a businessman is only one feature. I am certainly not intending to lay down a rule that it is impossible to make a “special contribution” if the assets are below£20 million . It is however a factor that the husband’s business success has not been so great as to generate truly vast wealth. He has been very successful. Whilst he is to be applauded for that, it is quite impossible to say that his contribution in this regard gets close to justifying a greater share of the wealth than that of the wife who contributed herself in an equally valuable way to the best of her ability.’
‘[60] There is no doubt but that H, for his part, achieved tremendous things in his generation of wealth. He is the one who has been principally responsible for their now holding assets worth in excess of$1.5 b. He has also been the architect of the funds now held within CIFF, amounting to a further$4.5 b. We do not suggest other than that that is a significant achievement.’
‘…. Sometimes, having carried out the statutory exercise, the judge’s conclusion involves a more or less equal division of the available assets. More often, this is not so. More often, having looked at all the circumstances, the judge’s decision means that one party will receive a bigger share than the other. Before reaching a firm conclusion and making an order along these lines, a judge would always be well-advised to check his tentative views against the yardstick of equality of division. 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. This is not to introduce a presumption of equal division under another guise. Generally accepted standards of fairness in a field such as this change and develop, sometimes quite radically, over comparatively short periods of time. The discretionary powers conferred by Parliament 30 years ago enable the courts to recognise and respond to developments of this sort. These wide powers enable the courts to make financial provision orders in tune with current perceptions of fairness. Today there is a greater awareness of the value of non-financial contributions to the welfare of the family. 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-making qualifications and skills. In Porter v Porter[1969] 3 All ER 640 , 643-644, Sachs LJ observed that discretionary powers enable the court to take into account ‘the human outlook of the period in which they make their decisions’
‘[67] Third, in my opinion fairness certainly permits and in some cases requires recognition of the product of the genius with which only one of the parties may be endowed. Indeed Miss Baron conceded the proposition, whilst contending that this husband was not in the category, since she submitted that he was no more than a hard-working businessman. That submission does not seem to me to do justice to the husband’s achievements, which clearly for their scale depended upon his innovative visions as well as on his ability to develop those visions. It is a factor in the present case which deserves some recognition. I do not regard it as discrimination by the back door. Whilst no doubt the husband’s capacity to devote himself to the expansion of the companies depended in part upon the stability and security of the home and family life which the wife created and sustained, his creativity was not so dependent to the same or perhaps to any degree.’