GW v RW

In a substantial-asset ancillary-relief case, equality of contributions does not automatically require equality of division. The duration of the relationship remains a statutory consideration. Seamless pre-marital cohabitation may count towards duration, while a period of formal separation generally does not.

Property brought into the relationship, including an established career and earning capacity, must be taken into account in assessing contributions, but should not artificially be excluded from the discretionary exercise. Deferred and risk-laden assets may appropriately be shared as realised rather than valued by speculative discounts.

In a big-money case with assets exceeding needs, the starting point on costs should generally be no order as to costs. That approach may be displaced by unreasonable conduct, including non-disclosure, unreasonable litigation conduct or refusal to negotiate.

The parties were married in 1989 after approximately 18 months of cohabitation. They had two children and separated finally in 2001. The wife and children later moved permanently to Australia. The parties’ assets, derived principally from the husband’s City remuneration, were worth approximately £12 million.

The wife sought an equal share. The husband relied on the duration of the relationship, assets and earning capacity brought into the marriage, wealth accumulated during a period of estrangement, and his alleged greater needs. The court also determined child maintenance, the treatment of deferred assets, and costs.

The central issues were the appropriate division of marital assets, the treatment of non-marital contributions and deferred assets, the level of child maintenance, and the proper approach to costs in substantial ancillary-relief proceedings.

1. Ancillary relief. The wife was awarded 40% of the immediately realisable assets and 40% of the husband’s deferred and risk-laden assets and liabilities. The overall departure from equality was justified cumulatively by the duration of the relationship, the husband’s unmatched pre-marital assets and established earning capacity, and his unmatched contribution during the period of estrangement.
2. The 18 months of seamless pre-marital cohabitation counted towards the duration of the relationship. The formal 18-month separation did not. The relevant duration was therefore 12¼ years. The assumed equality of contributions discussed in Lambert v Lambert [2002] 3 FCR 673; [2003] 1 FLR 139 was not treated as requiring equal division in a relationship of this duration. Equality of contributions and equality of division remain distinct questions.
3. Assets owned before marriage, and the husband’s established career and earning capacity, were relevant contributions. It would be artificial and contrary to section 25(2)(a) of the Matrimonial Causes Act 1973 to exclude non-marital assets from the pool before exercising the statutory discretion.
4. Because the value of the deferred options and other assets could not be assessed reliably, a Wells v Wells [2002] 2 FLR 97 sharing was appropriate. The wife was to receive 40% of the net sums realised annually, with corresponding responsibility for deficits.
5. The child-maintenance starting point should ordinarily reflect the new child-support regime. The court awarded A$40,000 per child per annum, indexed, together with educational costs and specified contact-travel costs. The award was expressed in Australian currency to protect the children from currency fluctuation.
6. In a big-money case where the assets exceed the parties’ aggregate needs, the starting point on costs is no order as to costs. That starting point may be displaced by unreasonable conduct, including material non-disclosure, meritless tactical conduct, or failure to negotiate constructively. Applying that approach, the husband was awarded 50% of his indemnity costs and the wife 25% of hers. After set-off and adjustment, the husband was ordered to pay the wife an additional lump sum of £83,000 within 14 days. There was no reimbursement of maintenance pending suit.

First-instance ancillary-relief judgment of the High Court (Family Division). Permission to appeal on costs was granted to either party.