P v P

In ancillary relief proceedings, the sharing principle must be applied within the statutory discretion and does not create a formula or require precise separation of matrimonial and non-matrimonial property. Post-separation accrual and future earning capacity remain relevant, but their weight is fact-sensitive. An award must first meet reasonable needs; sharing cannot justify an award that fails to do so. Speculative or contingent assets should not be assigned an artificial value where proportional sharing can fairly distribute the risk. Where assets are held in foreign trusts, the court may take them into account while exercising restraint over direct variation and structuring implementation through the foreign court.

The Wife sought ancillary relief following the parties’ separation after a 24-year marriage. The parties had substantial assets, including property, deferred remuneration, employee benefit trusts and family trusts in Jersey and South Africa. The principal disputes concerned the treatment of post-separation wealth, the Husband’s future earning capacity, the valuation and sharing of contingent assets, the Wife’s housing and income needs, and the form in which trust assets should be transferred. The court also considered disclosure, tax consequences and the implementation of any order affecting foreign trusts.

1. Trust assets and comity. The court took the relevant trust assets into account as resources available to the parties. Following the approach discussed in Mubarak v Mubarak and Others [2007] 2 FLR 364 and the Jersey decision in In the matter of the B Trust [2006] JRC 185, it exercised restraint concerning direct variation of the trusts and contemplated implementation through the Royal Court of Jersey.
2. Statutory discretion. The guidance in Miller v Miller; McFarlane v McFarlane [2006] 1 FLR 1186 did not replace the statutory discretion under the Matrimonial Causes Act 1973. The court should not treat the speeches as statutory tests or impose fixed results. Nor is it necessary to identify a precise boundary between matrimonial and non-matrimonial property.
3. Post-separation wealth and earning capacity. The general principle that the marital partnership does not ordinarily continue for sharing future resources unless justified by need or compensation was adopted. It did not require the court to exclude post-separation accrual or future earning capacity. Both were relevant factors whose weight depended on the facts. The court applied the flexible approach recognised in Charman v Charman, including the possibility of departing from equality in relation to non-matrimonial property.
4. Needs and contingent assets. The sharing principle could not justify an award below the Wife’s reasonable needs. The court assessed housing and income needs broadly, treated uncertain assets cautiously, and declined to assign firm values to assets whose realisation was speculative. The Wife received property K in trust, retained the South African holiday property, received a lump sum, and was awarded a proportion of the LPDFs and pension assets.
5. The Wife’s application was granted in part. The order was structured to provide for her needs while recognising the Husband’s post-separation wealth and future resources. She also received one third of the net proceeds from the Company X investment above the value attributed to it at trial.

The judgment concerned first-instance ancillary relief proceedings. The petition was issued on 7 March 2005, decree nisi was pronounced on 1 February 2006, and interim financial orders were made during the proceedings. No appellate history is stated.