Foster v Foster [2003]

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date16 Apr 2003

Ancillary relief – Financial provision – Property division – Equality – Effect of inequality of financial contributions upon distribution of accumulated assets – Whether judge in error.

In 1997, the husband and wife married. In 2000, they separated and a decree nisi was granted in 2001. They had no children, and both were employed throughout the marriage. The wife always earned more than the husband. The parties had amassed capital of nearly £400,000, after allowing for capital gains tax, as a result of property dealing and development throughout the marriage. An application for ancillary relief came before a district judge. Her approach was that, as the marriage had been short, and taking into account so far as possible the other aspects of s 25 of the Matrimonial Causes Act 1973, the parties should be returned more or less to their positions before the marriage. She therefore returned to each party what they had brought into the marriage and what had been contributed to the outgoings on the property after the separation, but divided the profits made during the marriage equally. Her order gave the wife 61% of the assets, and the husband 39%. The wife appealed to the circuit judge, arguing that the district judge had not given enough weight to her much greater financial contribution to the capital achieved. The circuit judge accepted the wife’s argument, and varied the distribution to give the wife 70% and the husband 30%. The husband appealed against the circuit judge’s decision, contending that the assets should have been split equally between the parties. The question on the appeal was whether, given that the principles applicable on an appeal from district to circuit judge in ancillary relief cases were now the same as those in any other appeal, the district judge had gone so far wrong as to entitle the circuit judge to intervene.

Held – The instant case was all about contributions, and whether each party should be regarded as having made an equal contribution to the assets accumulated in a joint enterprise which should then be shared equally, unless there were other considerations telling against that. Generally speaking, the most important considerations telling the other way were the parties’ respective housing needs and the needs of the children, but none of those considerations applied in the instant case. Another reason for departing from equality might be that the assets in question had been brought into the marriage from outside. However, that was only one of the circumstances of the case. The nature and value of the property, and the time when and circumstances in which it had been acquired should be considered. In the ordinary course it would carry little

weight, if any, in a case where the other party’s needs could not be met without recourse to it. In the instant case it certainly could not be argued that that the approach of the district judge was unfair either to the wife or the husband, and the circuit judge had been wrong to interfere in what she had decided. Accordingly, the appeal would be allowed.

Cases referred to in judgment

Cordle v Cordle[2001] EWCA Civ 1791, [2002] 1 FCR 97, [2002] 1 WLR 1441, [2002] 1 FLR 207.

Cowan v Cowan[2001] EWCA Civ 679, [2001] 2 FCR 331, [2002] Fam 97, [2001] 3 WLR 684, [2001] 2 FLR 192.

Lambert v Lambert[2002] EWCA Civ 1685, [2002] 3 FCR 673, [2003] 4 All ER 342, [2003] Fam 103, [2003] 2 WLR 631, [2003] 1 FLR 139.

Piglowska v Piglowski[1999] 2 FCR 481, [1999] 3 All ER 632, [1999] 1 WLR 1360, [1999] 2 FLR 763, HL.

White v White[2000] 3 FCR 555, [2001] 1 All ER 1, [2001] 1 AC 596, [2000] 3 WLR 1571, [2000] 2 FLR 981, HL.

Appeal

The appellant, Stephen Foster, applied for permission to appeal, with appeal to follow if permission was granted, against an order made by Judge Peter Thompson in the Chelmsford County Court sitting in Ipswich on 27 September 2002 whereby he allowed the appeal of the respondent, Tracey Foster, and varied an ancillary relief order made by District Judge Silverwood Cope on 16 May 2002. The facts are set out in the judgment of Hale LJ.

The husband appeared in person.

Kerstin Boyd (instructed by Scannell Dimdore) for the wife.

HALE LJ.

[1] This began as a husband’s application for permission to appeal, listed with appeal to follow if permission is granted, against an order made by Judge Peter Thompson in the Chelmsford County Court sitting in Ipswich on 27 September 2002. He allowed the wife’s appeal and varied an ancillary relief order made by District Judge Silverwood Cope on 16 May 2002.

[2] As this is a second appeal, permission can only be granted if it raises an important point of principle or practice or there is some other compelling reason. In our view the case does raise the important issue of the proper approach, in the light of White v White[2000] 3 FCR 555, [2001] 1 All ER 1 and later decisions of this court, to the parties’ respective contributions in a short childless marriage where both are working. Accordingly we gave permission to appeal.

[3] The parties are both aged 33. They married on 18 July 1997 after a long engagement. They separated in February 2000 and the decree nisi was granted on 25 July 2001. They have no children. Both were employed throughout the marriage, the husband as a computer engineer and the wife as an accountant.

The differential between their earnings varied during the marriage, but the wife always earned more than the husband did and at the date of the hearing before the district judge the wife earned about £67,000 gross a year and the husband about £30,000.

[4] It was accepted that this was not a case for income provision. Nor did the district judge take account of various smaller assets and their pensions. The case was about the distribution of the surprisingly large amount of capital amassed as a result of property dealing and development during the marriage. During that time they had owned five properties, two of them as matrimonial homes.

(i) 57 Rectory Lane, Chelmsford. This was already owned by the husband, who had bought it with a friend in 1990. It then went into negative equity. The friend bought himself...

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  • Lilleyman v Lilleyman and another
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    • Chancery Division
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    ...to the sharing principle: "This principle is applicable as much to short marriages as to long marriages: see Foster v Foster [2003] 2 FLR 299, 305, para 19 per Hale LJ. A short marriage is no less a partnership of equals than a long marriage. The difference is that a short marriage has......
  • Sharp v Sharp
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    ...be applied as an aid, not a rule. 17. This principle is applicable as much to short marriages as to long marriages: see Foster v Foster [2003] 2 FLR 299, 305, para 19 per Hale LJ. A short marriage is no less a partnership of equals than a long marriage. The difference is that a short marria......
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    ...counting the days of its duration. 34 Third, Mr Marks' reliance on the old cases is clearly precluded by the decision of this court in Foster v Foster [2003] 2 FLR 299. Between that case and the present there is an obvious similarity in that the duration of each was approximately 2 3/4 year......
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    ...of equality is to be applied as an aid, not a rule. 17 This principle is applicable as much to short marriages as to long marriages: see Foster v Foster [2003] EWCA Civ 565; [2003] 2 FLR 299, 305, para 19 per Hale LJ. A short marriage is no less a partnership of equals than a long marriag......
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