G v G

In ancillary-relief proceedings, cohabitation is not equated with marriage. Its impact must be assessed by reference to the overall circumstances, including its financial consequences. A change in social attitudes cannot by itself justify departing from binding Court of Appeal authority.

Assets should generally be valued at the hearing date, after which the court should consider their nature and provenance. Post-separation income or wealth requires a discretionary assessment of the extent to which it derives from the marital partnership. A clean break is inappropriate where the receiving spouse cannot adjust without undue hardship within a foreseeable period.

The wife applied for ancillary relief following the breakdown of a relatively short marriage. The parties had one child, and the wife remained the child’s primary carer. The principal disputes concerned the husband’s remuneration, employee benefit trusts, pension arrangements, post-separation wealth, the wife’s new relationship, and the appropriate capital and income provision.

The court considered whether the wife should share in assets accumulated after separation, including international pension plans funded through the husband’s remuneration, and whether her relationship with another man affected her entitlement. It also addressed the level and duration of spousal and child maintenance.

1. Ancillary relief. The court formulated orders transferring the Dublin home to the wife, dividing or selling the other properties, and requiring the husband to pay a balancing lump sum. Further directions were required concerning implementation, updated valuations, currency, tax and costs.

2. Cohabitation. The presence of the wife’s new partner and their expected child did not affect the appropriate capital provision. Cohabitation is not equivalent to marriage. Its effect on maintenance must be assessed by reference to the overall circumstances. The court was bound by the Court of Appeal’s approach in Atkinson v Atkinson [1988] Fam 93 and Fleming v Fleming [2003] EWCA Civ 841, rather than the broader first-instance observations in K v K (periodical payments: cohabitation) [2005] EWHC 2886 (Fam).

3. Post-separation assets. The court should evaluate the available assets at the hearing date and then consider their nature and provenance. Assets deriving from pre-marriage acquisition, gift or inheritance may be excluded wholly or partly, subject to needs. The court must exercise discretion when deciding when the financial partnership ends and whether later wealth is a fruit of that partnership.

4. International pension plans and remuneration. Apart from the bonus already earned during the marriage, the pension contributions represented remuneration earned substantially after the marital partnership had ended. The wife therefore received no share in the pension plans. The husband’s deliberately incomplete disclosure was relevant to the assessment of maintenance and to retrospective adjustment of maintenance pending suit.

5. Maintenance. The case was not suitable for a clean break. The husband was ordered to pay spousal maintenance of £125,000 per year and child maintenance of £15,000 per year, subject to variation and further argument concerning currency. The maintenance-pending-suit order had been inadequate in light of the husband’s true resources, and £70,000 was included in the lump sum to reflect the shortfall.

Not stated in the judgment.