H v H

In ancillary relief proceedings, the guidance in White v White and Miller v Miller; McFarlane v McFarlane is not a series of statutory tests producing fixed results. The court must apply the statutory criteria, retain flexibility and stand back to assess overall fairness.

For a long marriage, assets generated by the parties’ mutual support up to the end of the marital partnership may attract equal sharing. Future earnings are not automatically shared. A capital award may nevertheless reflect the loss of a share in enhanced earning capacity created by the marital partnership. The assessment is fact-sensitive and cannot be fixed by an arbitrary separation date or formula.

The applicant sought ancillary relief under the Matrimonial Causes Act 1973 after a long marriage in which the husband had built substantial wealth through a banking career and the wife had supported that career while caring for their four children.

The principal disputes concerned which deferred bonuses formed part of the matrimonial property, whether an additional capital award should reflect the husband’s future earnings and enhanced earning capacity, and the appropriate periodical payments for the children. The wife sought inclusion of the 2006 and 2007 bonuses and a further award; the husband proposed equal division of assets identified at an earlier date and a lower award.

1. Statutory and discretionary approach. The court had to apply the statutory criteria in the Matrimonial Causes Act 1973, guided by need, compensation and sharing. The guidance in White v White and Miller v Miller; McFarlane v McFarlane was not itself a set of statutory tests. It supplied a process of reasoning directed to a fair result, without rigid stepping stones or formulae.
2. Matrimonial property. The assets existing at 1 January 2005, when the mutual support underlying the marital partnership had ended, were matrimonial property to which equality applied readily and with force, subject to the overall assessment of fairness. The 2006 and 2007 bonuses were not added by proximity, reconciliation attempts or the hearing date. An arbitrary rule based on a fixed period after separation was rejected.
3. Future income and enhanced earning capacity. Future income is not automatically a continuing marital resource. The part of enhanced income or earning capacity created by the parties’ contributions, lifestyle and joint endeavours during the marital partnership may justify an additional award under sharing or compensation. Its value is difficult to quantify and must be assessed by reference to the particular case. The wife was not entitled to long-term economic parity or a payment for continuing childcare as if for services.
4. Overall award. The court treated one half of the assets at 1 January 2005 as the starting point, then considered the transition or “run off” from the marital partnership. Relevant considerations included the length of the partnership, the wife’s contribution, the likely future product of the husband’s work and the overall financial effects of the award. A capital sum of £1.4 million was fair as an addition, payable immediately and without delayed elements.
5. Children. The husband’s offer of £18,000 per annum for each child, in addition to school and university fees and specified direct payments, was sufficient and fair in the circumstances. The wife’s higher claim was excessive having regard to the family’s established lifestyle and the husband’s obligations.