Miller v Miller (Short Marriage: Clean break)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SINGER,Mr Justice Singer |
| Judgment Date | 05 April 2005 |
| Neutral Citation | [2005] EWHC 528 (Fam),[2003] EWHC 2410 (Fam) |
| Court | Family Division |
| Date | 05 April 2005 |
| Docket Number | Case No: FD03D04472 |
[2005] EWHC 528 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Singer
Case No: FD03D04472
Mr Nicholas Mostyn QC and Mr Tim Bishop (instructed by Withers LLP) for the Applicant Wife
Mr Martin Pointer QC and Mr Justin Warshaw (instructed by Messrs Sears Tooth) for the Respondent Husband
Hearing dates: 11 to 15 October 2004
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE MR JUSTICE SINGER
This judgment is being handed down in private on 5 April 2005. It consists of 73 paragraphs and has been signed and dated by the judge. The judge hereby gives leave for it to be reported and suggests that in that event it is cited as M v M (Short Marriage: Clean Break).
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location.
An outline of the application
Mr M (H) is 40. He has throughout his life lived in this country where, after leaving university and training as an accountant he began to work as an investment manager in about 1986. As a result of a winning combination of flair and hard work he has excelled. Mrs M (W) is 35. She was born, brought up and educated in America, where all her family still live. She came to live and work in Cambridge in the first months of 1995. In America she had acquired specialised knowledge of the investor and media relations requirements of pharmaceutical companies, and it was for a firm in that industry that she came to work in England.
The parties met in the summer of 1995 and within a matter of months had embarked upon what became a protracted courtship, leading to engagement in July 1999 and marriage in July 2000. They never lived together continuously in the same household prior to their marriage, which was childless and ended abruptly when they separated on 23 April 2003, H leaving W in their matrimonial home where she continues to reside.
W now makes application for ancillary relief, a decree absolute of divorce having been pronounced in February 2004. She seeks the transfer of their London home, and of a villa in the south of France which is currently in joint names. In addition she seeks a lump sum to bring her award up to a total of £7.2 million. H's position at the hearing has been that his offer of a lump sum of £1.3 million (on the basis that he retains the French property) is more than generous in the circumstances.
These extremely polarised positions are in the context that the parties agree that H is currently worth of the order of £17.5M, plus whatever value should be attributed to the 200,000 shares which he owns in N Ltd, the fund management company of which he is a director and chief investment officer. In certain circumstances (which cannot be excluded although they appear unlikely) he might be obliged to dispose of his shares for their par value, £200,000. The contentions of the rival valuers from whom I have heard evidence indicate a range of between £12.35M and £18.11M for their value on a notional sale between willing vendor and willing purchaser. But in fact no such sale could take place in current circumstances, for a variety of reasons. There is also evidence that in early 2004 (when, amongst other factors, market conditions were significantly more favourable than they now are) H and the other shareholders had good grounds to hope that their shares might be marketable (admittedly over a period of perhaps five years, and thus subject to price fluctuation meantime) at an initial flotation price of about £130 per share. In H's particular circumstances (having regard to an option which he has given over 75,000 of the shares) this would (at an uncertain future date, over that period thereafter, and subject to post-flotation price movement) net him something of the order of £24.44M. It can, I hope, immediately be seen that valuing these shares raises complex issues.
W's current financial circumstances are in stark contrast. If she paid her outstanding costs she would be more than £300,000 in overall debt. For this calculation I disregard the value of her share in the French house, her car and her modest jewellery, as well as furniture and other chattels which are to be divided. Put another way, if the liabilities which she has assumed to meet her costs are ignored then she has about £100,000 worth of assets of which £46,000 is locked in pension funds.
This manifestly is a case for a clean break. No issue arises as to H's ability within a short space of time to pay the amount I propose to award W. Despite the illiquidity and the uncertainties regarding the N Ltd shares neither party suggested that W's award should await or be tied to their value when realised.
Some observations concerning the hearing
I heard submissions and evidence over five days from 11 October 2004. On the first day I ruled that I would not shut out evidence from the parties about the reasons each gave for the breakdown of the marriage, notwithstanding a declaration embodied in the order made after the unsuccessful conclusion of the Financial Dispute Resolution hearing on 6 February 2004. That order recorded that W would not rely upon section 25(2)(g) of the Matrimonial Causes Act 1973: that is to say, that she would not assert that H had conducted himself in such a way that it would be inequitable to disregard his behaviour. I gave a short judgment on the question. In essence I took the view that in the particular circumstances of this case (notably the brevity of the marriage) it was not inconsistent with that declaration for W to seek by her evidence to demonstrate that the breakdown was largely if not entirely attributable to an intimate relationship H formed with the woman with whom he now lives, the physical separation between the spouses having occurred the day after he revealed the association to W. However, even if the declaration could be so construed, I took the view that W's evidence could not be circumscribed as to preclude her from airing this issue without which it would be impossible to gauge the strength and impact of the catalogue of complaints about her conduct during cohabitation advanced by H to seek to justify (as I find was his intention) his decision that the marriage had no future and/or to dilute what W asserts was the destructive impact of his adultery. His case is clear: he maintains that his new association was a consequence of an unhappy marriage rather than a cause of its breakdown.
At the commencement of the hearing it was by no means clear to me whether or not by its conclusion attribution of responsibility for breakdown would constitute a relevant circumstance which I should take into account in reaching my award. But I was not prepared to take the risk inherent in excluding evidence of W's position on this question with the consequence that H's assertion would not be tested. I was encouraged in that course by observations made by Thorpe LJ in G v G (Financial Provision: Separation Agreement), [2004] 1 FLR 1011, where he said:
[32] I come then to the final point, that the judge's approach to the duration of the marriage was flawed. Mr Pointer's argument, which is lucidly presented, goes thus. The judge considered that there were three respects in which the conduct of the husband was relevant to the quantification of the wife's lump sum. One of those was the circumstances in which the marriage had broken down. The judge was highly critical of the husband in this regard. He held that his association with B was the major contributory factor to the breakdown of the marriage, and that the husband's attitude to his misconduct merely demonstrated his lack of insight into the distress that it would inevitably cause the wife. The judge went on to say at 31:
'However, taking all this into account, in my view it is not appropriate to increase the award which the court would make because of the husband's bad conduct in this regard. Rather, I see it as a significant counterbalancing factor to the point made on behalf of the husband that this was a short marriage.'
[33] Mr Pointer says, quite persuasively, that this is in effect a mechanism for increasing the wife's award by the back door in reliance on the husband's conduct. He says that if she is not to be assessed as having an entitlement on the foundation of a 4-year marriage, on what greater length of marriage is she to be assessed?
[34] The answer to that seemingly well-developed submission is, in my opinion, this. A judge has to do fairness between the parties, having regard to all the circumstances. He must be free to include within that discretionary review the factors which compelled the wife to terminate the marriage as she did. The point was essentially taken as a defensive shield to the reliance upon the duration submission. There must surely be room for the exercise of a judicial discretion between the pole of a wife who is driven to petition by the husband's unfeeling misconduct and that of a wife who exits from a marriage capriciously and for her own advantage. It seems to me that the judge was doing no more than taking his bearings as to where he stood along that path.
I agree with Mr Pointer (who in this case also represents the husband, appearing with Mr Justin Warshaw) that nothing which either spouse alleges against the other remotely constitutes conduct of such gravity that it would be inequitable to disregard it. Nor indeed does it approach the weight of the findings made...
To continue reading
Request your trial
-
P v P
... ... a child after the breakdown of the marriage. He also has had a further child by a new ... for a long time, citing Lord Nicholls in Miller v Miller [2006] UKHL [2006] 2 AC 618 at §22 ... In short, they argued that it was not open to him to ... ...
-
Birch v Birch
... ... for financial orders on the basis of a clean break between them. The wife wished to continue ... … either or both of the parties to the marriage has or have a beneficial interest … ... In Miller v Miller [2006] UKHL 24 ; [2006] 2 AC 618 at ... ...
-
Sharp v Sharp
... ... that is inevitably the case where the marriage has been short, there are no children, the couple ... Court of Appeal level since White and Miller v Miller ; McFarlane v McFarlane [2006] UKHL 24 ... to take account of the reasons for the break-up of the marriage, but there was a reason to ... ...
-
KA v MA (Prenuptial Agreement: Needs)
... ... orders following the breakdown of her marriage to MA (‘the husband’). That application was ... assume that there will be a financial clean break on payment of either one of those sums ... wife travelled extensively and took many short- and long-haul holidays together with M. Whilst ... as explained by the House of Lords in Miller v Miller ; McFarlane v McFarlane [2006] UKHL 24 ... ...