H v H (Divorce: Financial Provision)
| Jurisdiction | England & Wales |
| Judgment Date | 04 April 2007 |
| Neutral Citation | [2007] EWHC 459 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD 05D 02849 |
| Date | 04 April 2007 |
[2007] EWHC 459 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
the Honourable Mr Justice Charles
Case No: FD 05D 02849
Nicholas Mostyn QC and Richard Todd (instructed by Farrer & Co) for the Applicant
Lewis Marks QC and Christopher Pocock (instructed by Hughes Fowler Carruthers) for the Respondent
Hearing dates: 29 and 30 January 2007
Judgment Approved by the court
Charles J:
Introduction
This is an application for ancillary relief under the Matrimonial Causes Act 1973 (the MCA), and a “big money case”, relating to (a) substantial wealth built up during the course of a long marriage as a result of the earnings of the husband as a banker and the chosen lifestyle of the parties, and (b) the husband's future earnings.
The parties have four children. Their choice as a married couple was that the husband focused on his career and the wife travelled with him as his work dictated and devoted herself to supporting him, their home and bringing up their four children. Their chosen lifestyle during the marriage was therefore one in which the husband and wife by a combination of amongst other things their respective talents, their respective choices, their hard work, their support for each other and good fortune created a family that comprised themselves and four healthy and talented children, which enjoyed an increasingly good standard of living and, certainly during the later years, substantial wealth.
This is not a case in which the wife gave up a career that was likely to provide substantial income or monetary reward. She was a teacher. No doubt if she had pursued that career it would have provided other and additional benefits and burdens to those she took on as a wife and mother, but it was common ground that the choices made by both the husband and the wife were ones they both made willingly. Until the onset of the breakdown of their marriage those choices were ones that led to a successful emotional and economic result.
In determining what is a fair distribution of financial resources following the breakdown of a marriage there is to be no gender discrimination. The chosen roles of the parties to a marriage inevitably give rise to both benefits and burdens. I remind myself of these points at this early stage of this judgment because, perhaps understandably, both sides in submission tended to stress the burdens of their respective roles and choices rather than the benefits they enjoyed as a result of them. The reality is that both of their roles have benefits and burdens and they both provide direct and indirect support to the other which enhance aspects of the family life that they both enjoyed.
Some of the benefits of the husband's individual role can be easily measured in money terms. Some, however, such as job satisfaction cannot. His burdens include long hours, travel and hard work. The wife's role as the home maker and the primary caretaker of the children enabled the husband to devote time to his work which gave them both considerable economic benefits. Other benefits of her role are intangible. The bringing up of four children and the creation of a lovely home as the wife has done involves much hard work, love, time and devotion but it results in numerous joys and much satisfaction and pleasure.
In this case it is clear that neither party regretted the role that they respectively played. On the contrary during the successful years of the marriage it seems to me that they were both justifiably content with the roles they had chosen. As Baroness Hale points out in paragraph 154 of her speech in Miller v Miller; McFarlane v McFarlane [2006] 2 AC 618 ( Miller & McFarlane) the fact that they both might have wanted to take the roles they did is neither her nor there. That is generally the fact, and it is the results of the choices and life style of the marital partnership that matter in determining how its fruits are to be shared in a non-discriminatory way.
The fallout of the termination of a married lifestyle such as that chosen and enjoyed by these parties is likely to be what has happened in this case, namely that (a) the husband continues working and earning a very high remuneration, and (b) the wife continues to act as the primary caretaker of the children living with them at the matrimonial home. Save for the financial provision that is made by the husband they both do this without the continued day to day emotional and practical support of the other and the continued emotional pleasure and stability of a home for them both with the children.
They both therefore in large measure continue to perform, in different households, their respective roles as they have been developed during the marriage.
To my mind given the successes of this marriage and the amount of money available to the parties it is a great pity that, with the benefit of unemotional advice, they have been unable to reach agreement as to what would be fair and have become embroiled in arguments described in submission as “hot topics”, in big money cases, concerning the effect and application of the guidance given by the House of Lords in Miller & McFarlane.
The two central points raised in argument both relate to the husband's earnings and effectively to his bonuses. They were:
i) what bonuses should be included within the matrimonial acquest or family assets (which I shall refer to as the matrimonial property), and
ii) what award, if any, should be made in respect of future bonuses falling outside the matrimonial property.
It was correctly common ground that the relevance of the first question relates to the application of the yardstick of equality. In argument what was focused on was where the line should be drawn to identify the assets to which in this case that yardstick applies with such force that, as was common ground, it effectively dictates an equal division of the value of those assets. The second question is directed to earnings falling on the other side of the line that is drawn.
There is also a dispute as to the amount of the periodical payments that the husband should make for the children. It is common ground that the court has jurisdiction to make such orders because the husband is habitually resident abroad. I shall deal with this separately at the end of this judgment.
A chronology
A chronology demonstrates the history of the marriage
May 1960 W born (46)
June 1962 H born (44)
Parties meet at Oxford (St. John's College)
1983 to 1985 W teaches at a comprehensive school
6 February 1984 H joins a firm, who are later taken over by a major bank for whom he has worked (in its various incarnations) ever since
19 October 1985 Marriage
1985 to 1987 W teaches at a school for girls
1988 H is posted to Tokyo
9 August 1988 D (18) born. She has just finished her last year at school and gained a place at Oxford having failed to gain a place at medical school last year
1989 W teaches at a university near Tokyo
1990 Family (M F and D) returns to UK
23 August 1992 F born (14). She is at a private boarding school, she started there in September 2005
January 1993 H is again posted to Tokyo. W and the two young children go with him
11 March 1995 O born (11). He is at a private preparatory school and the plan is that he will go to a private boarding school. He boards part time
1996 Family (F, M and three young children) return from Japan. The parties then acquire their last matrimonial home
18 February 1997 H born (9), she is at the same preparatory school as O, boards part time and the plan is that she will go to a private boarding school
2000 W teaches part time at a comprehensive school
2003 W teaches part time at a primary school
c. March 2004 An apartment in London is purchased
2004 to early 2005 W teaches part time at a school in Ipswich, and ceased to do so because of the prospect that she and H may go abroad
September 2004 H forms a relationship with his present partner
24 December 2004 H announces dissatisfaction with the marriage
9 January 2005 H leaves the matrimonial home
Early 2005 There were some attempts at reconciliation and a visit by H to the matrimonial home in February
24 May 2005 Petition by W: section 1 (2) (a)
31 May 2005 A short and last stay by H at the matrimonial home. W qualifies the date of 31 May 2005 in her Form E, by saying that: “As recently as August [2005] he was discussing the possibility of me and the children living with him in Zurich, when he takes up a new job there…”
21 June 2005 H buys another property which is close to the two younger children's school. It is a nice home but not on the scale of the matrimonial home
12 July 2005 Form A by H
12 July 2005 H's solicitors write saying, “I have heard from my client that our clients' various attempts at reconciliation are now agreed to have failed.” W says H is still in direct contact with W and this was accepted by him
18 July 2005 Form A by W
August 2005 W goes to H's home to discuss reconciliation
September 2005 Final attempts at reconciliation fail
23 December 2005 Decree nisi
January 2006 H posted to Z
The chronology demonstrates the overall description of the marriage I have already given. The husband agreed in evidence that it was accurate but left some things out. If the wife had been asked the same question I am confident that she would have given a similar answer.
Both parties gave their evidence in an open and honest way. They have both clearly suffered in their different ways from the breakdown of their marriage and its aftermath. They are now rebuilding their separate lives. They are both able and likeable individuals.
The wife was fully supportive of the husband's career going to Tokyo twice. Up to, and then even more so during 2005 and afterwards, the wife has shouldered the work...
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