Robertson v Robertson

In financial-relief proceedings, the distinction between matrimonial and non-matrimonial property is analytical, not a rigid rule producing automatic exclusion. The court must exercise its statutory discretion fairly by considering the source, history and use of assets together with all the circumstances. The passive-growth methodology may assist as a tool, but it cannot replace the discretionary assessment under section 25 of the Matrimonial Causes Act 1973. Pre-marital business assets may therefore be treated as partly non-matrimonial and partly matrimonial. A claim of special contribution requires an exceptional and unmatched contribution. The court must avoid undervaluing the equal contribution of a spouse who is the home-maker and primary carer.

The applicant wife sought financial remedies following a marriage preceded by cohabitation of approximately ten to eleven years. The respondent husband held substantial shares in ASOS, acquired before the relationship, and had used some sale proceeds to purchase three Wimbledon properties after separation. The wife accepted that the original value of the shares, adjusted for passive growth, should be excluded, but sought equal sharing of the remaining growth. The husband argued that the shares and Wimbledon properties remained entirely non-matrimonial. The court also considered the husband’s fallback claim that his entrepreneurial contribution justified departure from equal sharing. The central issues were the proper treatment of the pre-existing assets and whether special contribution or the statutory factors required adjustment of the sharing outcome.

1. Asset classification. The analytical distinction between matrimonial and non-matrimonial property is established by Miller; McFarlane [2006] UKHL 24, but classification does not determine the result mechanically. The nature and source of property, and the way the couple conducted their lives, are relevant to the discretionary assessment.
2. Passive growth. The methodology discussed in Jones v Jones [2011] EWCA Civ 41 is a tool rather than a rule. Applying it mechanically would produce an outcome unfair to the husband. The court therefore considered the statutory factors under section 25 of the Matrimonial Causes Act 1973 substantively, rather than using the methodology merely as a cross-check.
3. Pre-existing shares and properties. The husband’s pre-existing shares had formed part of the family economy. He had used them to fund family homes, so they could not be treated as wholly ring-fenced. Conversely, the history of the business and the husband’s pre-marital work required a substantial allowance. The fair result was to treat one half of the remaining ASOS shares and Wimbledon properties as the husband’s personal non-matrimonial property, with the other half treated as matrimonial and shared equally.
4. Special contribution. The court adopted and applied its summary in Gray v Work [2015] EWHC 834 (Fam), together with the formulation in K v L [2011] EWCA Civ 550. A special contribution requires an exceptional contribution that is unmatched. The husband’s achievements were substantial, but did not meet that standard. Treating his contribution as unmatched would also risk discriminating against the wife’s equal contribution as home-maker and primary carer.
5. The wife’s overall entitlement was assessed at £69,507,407. After credit for assets already received or retained, the husband was ordered to pay a lump sum of £39,241,008. There was no order as to costs.