Miller and Miller
| Jurisdiction | England & Wales |
| Judgment Date | 2005 |
| Date | 2005 |
| Court | Court of Appeal (Civil Division) |
Divorce – Financial provision – Discretion – Large assets – Short childless marriage – Judge considering conduct of parties and concluding husband responsible for marriage breakdown – Whether judge in error – Matrimonial Causes Act 1973, s 25(2)(g).
The parties commenced a relationship in 1995. There was a considerable financial disparity between the parties; the wife had a salary of £85,000 per annum and the husband was a fund manager for a company, J, with annual earnings that exceeded £1m per annum. They were married in July 2000 and the husband bought a home for £1·8m. In March 2000 the husband received a sum of £20m, which was due to him as a result of the sale of J five years earlier. In May 2001 the wife gave up her employment and turned her attention to a villa in the south of France which was offered to her for her birthday, and was purchased in joint names. The husband suggested conceiving a child in autumn 2001 and in the following year the wife miscarried. Despite every effort, the wife did not conceive again and in April 2003 the husband left to pursue a relationship with another woman, whom he later married. Divorce proceedings swiftly followed and an order was made for maintenance pending suit. A financial dispute resolution hearing was unsuccessful and an order was drawn to prepare the case for trial, which was preceded by a condition that the wife would not rely upon s 25(2)(g) of the Matrimonial Causes Act 1973 in pursuing her claim. Her solicitors later indicated that they would be relying upon the decision in G v G [2004] 1 FLR 1011 to establish the facts that had led to the end of the marriage and as a defensive shield to submissions on the duration of the marriage. At the outset of the trial, the husband submitted that the wife should be bound by her declaration, but the judge refused that application and emphasised his statutory duty to consider all the circumstances of the case. The judge accepted the wife’s evidence and ordered that the wife should retain the London home worth £2·3m, and be given a lump sum of £2·7m. The husband appealed. He submitted that the judge had erred in permitting the wife to adduce evidence as to the cause of the breakdown and in holding that the husband was to blame for the breakdown in the marriage; that the judge was plainly wrong to justify the award on the ground that the wife had a legitimate expectation that she would live at a higher standard of affluence than she had enjoyed prior to the marriage; and that he was wrong to reject a clear line of authority that had established the principle on which claims were to be determined in short marriage cases.
Held – In the instant case, the judge had an overriding obligation to regard and to reflect in his judgment ‘all the circumstances of the case’, and the declaration made by the wife could not have possibly overridden or circumscribed the judge’s obligation to investigate whatever he conceived relevant and necessary to enable him to discharge his statutory duty. Having seen and heard the parties extensively cross-examined, the judge had been plainly entitled to conclude that the husband was to blame for the breakdown of the marriage. The award had been sufficiently if obliquely explained and it could not be regarded as excessive. The award was at the top end of the bracket and the ambit of the judge’s discretion in cases involving very large assets and a short childless marriage was particularly wide. Accordingly, the judge had not erred in his discretion and the appeal would be dismissed.
Cases referred to in judgmentsBiogen Inc v Medeva plc (1996) 38 BMLR 149, HL.
Brett v Brett [1969] 1 All ER 1007, [1969] 1 WLR 487, CA.
Cowan v Cowan[2001] EWCA Civ 679, [2001] 2 FCR 331, [2002] Fam 97, [2001] 3 WLR 684, [2001] 2 FLR 192.
Foster v Foster[2003] EWCA Civ 565, [2003] 2 FLR 299.
G v G (financial provision: separation agreement) [2004] 1 FLR 1011.
Gojkovic v Gojkovic [1990] FCR 119, [1990] 2 All ER 84, [1992] Fam 40, [1991] 3 WLR 621, [1990] 1 FLR 140, CA.
H v H (financial provision: short marriage) (1981) 2 FLR 392.
Hedges v Hedges [1990] FCR 952, [1991] 1 FLR 196, CA.
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.
Martin v Martin [1977] 3 All ER 762, [1978] Fam 12, [1977] 3 WLR 101, CA.
McFarlane v McFarlane, Parlour v Parlour[2004] EWCA Civ 872, [2004] 2 FCR 657, [2004] 3 All ER 921, [2005] Fam 171, [2004] 3 WLR 1480, [2004] 2 FLR 893.
Piglowska v Piglowski[1999] 2 FCR 481, [1999] 3 All ER 632, [1999] 1 WLR 1360, [1999] 2 FLR 763, HL.
Robertson v Robertson (1982) 4 FLR 387.
Wachtel v Wachtel [1973] 1 All ER 829, [1973] Fam 72, [1973] 2 WLR 366, CA.
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 husband appealed from the decision of Singer J, dated 5 April 2005 ([2005] EWHC 528 (Fam)), whereby he accepted the wife’s evidence and ordered that the wife should retain the home worth £2·3m, and be given a lump sum of £2·7m. The facts are set out in the judgment of Thorpe LJ.
Lewis Marks QC and Alexander Thorpe (instructed by Sears Tooth) for the husband.
Nicholas Mostyn QC and Rebecca Bailey-Harris (instructed by Withers LLP) for the wife.
Cur adv vult
29 July 2005. The following judgments were delivered.THORPE LJ.INTRODUCTION[1] On 5 April 2005 Singer J handed down judgment in the present case ([2005] EWHC 528 (Fam)). For the parties it had been a long wait since the trial had commenced on 11 October and concluded on 15 October 2004. Singer J himself granted permission to appeal on 14 April 2005 saying:
‘I agree that the Court of Appeal should review my decision in this case. The grounds advanced in oral argument … were, in summary: (a) the public and professional interest in this, the first post-White big money short marriage case; (b) the quantum of the overall award; (c) the manner in which I dealt with factual issues concerning the breakdown of the marriage.’
[2] The appeal has certainly generated a good deal of professional interest. Indeed Mr Marks QC for the appellant husband, suggested that there was a string of cases awaiting the outcome of the appeal. However in the end the outcome depends not so much on the resolution of novel points but the familiar assessment of whether the judge’s award falls within the generous ambit of discretion and whether its foundations are sound. The foundations in a number of instances are either not expressed or not expressed in much detail. That enabled Mr Marks to suggest that imprecisions were the result of the exceptional lapse of time between hearing and judgment. Mr Mostyn QC for the respondent wife however characterised the judgment as commendably succinct, a virtue that has allowed the judge to express some of his views by nuances. Mr Mostyn’s characterisation is apt and Mr Marks was unable to demonstrate that the judgment’s long gestation accounted for any obvious errors or omissions. However undoubtedly the appeal has been difficult to decide and most of the difficulties can be ascribed to two shortcomings in the judgment. The first is the failure to make a fuller record and finding of all the facts and circumstances relevant to the exercise of the discretion conferred upon the judge by s 25 of the Matrimonial Causes Act 1973. The second is the judge’s failure to explain his ultimate award more fully. His overall award of £5m is achieved by a transfer to the wife of the matrimonial home free of mortgage (agreed value £2·3m) and a capital fund of £2·7m to ensure her relative affluence. Mr Marks suggested, and Mr Mostyn did not demur, that the judge had first decided that the award should be £5m and then that it was reasonable for her to retain the home. The mathematical consequence was that
the lump sum should be £2·7m. With that brief overview of what has emerged as the heart of this appeal, I will now record the basic facts.
THE HISTORY[3] The husband is English and 41 years of age. The wife is American and 36 years of age. The husband first married in 1987, a marriage that was dissolved in 1992. He is an exceptionally successful fund manager. In turn he has worked for Gartmore, Jupiter and New Star.
[4] The wife arrived in this jurisdiction in February 1995 to take up a two-year contract with a pharmaceutical company in Cambridge. The parties met in the summer of 1995 and shortly thereafter commenced an intimate relationship. Between their respective positions there was a considerable financial disparity. The wife had a salary of about £85,000 per annum and lived in a rented flat in Cambridge. The husband was a high earner. With Jupiter his annual earnings inclusive of bonus might exceed £1m per annum.
[5] Perhaps, curiously this intimate relationship, described by Mr Marks as courtship, continued for no less than four years before the couple committed to marriage by their engagement in the summer of 1999. Seemingly to avoid the disapproval of her parents, the wife was not prepared to co-habit in advance of marriage. It took place on 14 July 2000. In preparation, the husband bought the home at 16 Elm Park Road in February 2000 for £1·8m. The wife moved to London and to a London job at about that date. In March 2000 the husband received the enormous sum of £20m. This was the second tranche of sums due to him as a result of the sale of Jupiter to Commerzbank completed some five years earlier. The husband has always been closely allied in business to John Duffield. He was the founder of Jupiter and he had recruited the husband from Gartmore. In May 2000 Mr Duffield started to invest in New Star and entered into a gentlemen’s agreement with the husband to give him a 20% of the venture if and when the husband could be extricated from Commerzbank.
[6] This objective was achieved on 29 January 2001 when the husband left Jupiter to join New Star as it commenced to trade. The husband brought with him...
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