Burgess v Burgess

In financial-relief proceedings involving jointly owned matrimonial assets, equality may be adopted as a starting point where both spouses have worked, but it is never an inflexible rule. The court must exercise the broad discretion under the Matrimonial Causes Act 1973, particularly section 25, by considering all the circumstances and the statutory factors. Unequal future earnings or other assets may remain undisturbed where the parties’ needs have been addressed. An isolated sentence should be read in the context of the judgment as a whole when alleged misdirection is assessed. Indemnity costs may be ordered for an unjustified and oppressive Anton Piller application, especially where it produces no useful evidence and is executed insensitively.

The parties, both professional people, had been married since 1969 and had three children. After the marriage broke down, Hale J divided their jointly owned assets equally and made a clean break order. She also ordered the husband to pay the wife’s costs of an Anton Piller application on an indemnity basis and limited the costs of the ancillary-relief proceedings.

The husband appealed, arguing that the assets should have been divided two-thirds to one-third in his favour and that indemnity costs were unjustified. The central issues were whether the judge had treated equality as a binding rule and whether her approach to the Anton Piller proceedings justified the costs order.

Financial order

1. Lord Justice Waite, with whom Lord Justice Morritt agreed, dismissed the appeal with costs. The judge’s financial order was neither wrong nor plainly wrong.
2. The statutory discretion under the Matrimonial Causes Act 1973, section 25, is broad. It must be exercised by considering the circumstances of the case and the matters specified in section 25(2), including earnings, earning potential, contributions, resources and present and future needs.
3. Equal division of joint assets belonging to working spouses is a legitimate starting point based on common sense and equity. It must yield to the requirements of the case and cannot become an a priori rule or principle. There is no general Parliamentary policy requiring the court to equalise the parties’ future incomes or all their resources.
4. The judge’s isolated reference to equality had to be read with her detailed assessment of the parties’ needs and resources. Her decision to leave unequal earnings, capital accounts, investments and inheritance prospects undisturbed was a permissible exercise of the statutory discretion.

Anton Piller proceedings

1. The costs of the proceedings were within the judge’s discretion. An indemnity order was justified where the application was without foundation, oppressive and unnecessary, produced no useful evidence, and was executed in a way that increased distress and humiliation.
2. Observations made on an ex parte application, before an inter partes hearing and on prima facie evidence, should not be represented as findings of fact. The husband’s reliance on such observations, together with the absence of evidence supporting concealment or suppression of documents, reinforced the costs order.
3. The court endorsed the warning that Anton Piller relief remains a rare remedy in family proceedings, appropriate only in extreme or exceptional cases.

• Court of Appeal (Civil Division): dismissed the husband’s appeal with costs.
• High Court of Justice, Family Division: Hale J divided the jointly owned assets equally, made a clean break order, ordered indemnity costs for the Anton Piller proceedings and limited ancillary-relief costs to £20,000 on the standard basis.