Hart v Hart

When applying the sharing principle in financial remedy proceedings, the court need not use a formula to separate matrimonial from non-matrimonial property. It should order only such investigation as is proportionate, make the findings permitted by the evidence, and then exercise its discretion under Matrimonial Causes Act 1973.

The sharing principle applies with force to matrimonial property and with limited or no force to non-matrimonial property. Where no precise boundary can fairly be drawn, the court may make a broad assessment and award less than half to reflect non-marital endeavour. Evidential deficiencies or litigation misconduct do not compel equal division. The court may draw appropriate inferences, but must still reach a fair outcome on the available evidence.

The wife appealed against a final financial remedy order made by His Honour Judge Wildblood QC, sitting as a deputy High Court judge. The parties had resources of just under £9.4 million. The judge awarded the wife approximately £3.5 million after finding that the husband had possessed substantial wealth before their long relationship, although its value and subsequent history could not be quantified reliably.

The wife argued that the husband’s deficient disclosure prevented the court from identifying any non-matrimonial property and therefore required equal division. She also contended that an award based on her needs was impermissibly lower than the judge’s other calculations.

The central questions were whether non-matrimonial property must be identified through a detailed, formulaic exercise and whether the judge’s broad assessment justified an unequal division.

1. Appeal dismissed. The judge was entitled to find that the husband’s substantial pre-relationship wealth made equal division unfair and to award the wife approximately £3.5 million. Moylan LJ delivered the judgment, with which Beatson and Lloyd Jones LJJ agreed.

2. The court is not required to adopt a formulaic approach when identifying matrimonial and non-matrimonial property or when determining the award. An asset may combine both elements, and attempting to draw a sharp boundary may be artificial, disproportionate and of doubtful utility. The degree of particularity or generality depends on the circumstances.

3. The practical process has three stages. First, the court should decide what proportionate factual investigation is required. Secondly, it should make the findings permitted by the evidence. A clear division should be used where established; a complicated continuum may instead require a broad assessment. Thirdly, the court must incorporate those findings into its discretionary evaluation under section 25 of the Matrimonial Causes Act 1973.

4. The sharing principle applies with force to matrimonial property and with limited or no force to non-matrimonial property. If precise demarcation is impossible but an element of non-matrimonial property is established, the court may select a percentage below 50% which makes fair allowance for non-marital endeavour. No particular mathematical methodology is prescribed, but the proposed award must satisfy overall fairness.

5. Pre-marital property need not be proved by clear documentary evidence. Ordinary evidential rules apply, including the drawing of fair or adverse inferences. Deficient evidence or litigation misconduct does not mandate equal division or any other predetermined outcome. The judge must make such findings as the available evidence justifies.

6. The award must be no lower than the result required by the needs principle where that exceeds the result under sharing. Although the judge selected a figure corresponding to the wife’s needs, he had also conducted an independent overall-fairness assessment. His higher calculations rested on insecure foundations and gave insufficient weight to the origins of the wealth. His final evaluative decision remained within the permissible bounds of discretion.

1. Court of Appeal (Civil Division): The wife’s appeal was dismissed in Hart v Hart [2017] EWCA Civ 1306. The court upheld the unequal division and the award of approximately £3.5 million.

2. High Court, Family Division: His Honour Judge Wildblood QC, sitting as a deputy High Court judge, made the final financial remedy order on 25 June 2015. No citation for that decision is stated in the judgment.