Sharp v Sharp

JurisdictionEngland & Wales
JudgeLord Justice McFarlane,Lord Justice McCombe,Lord Justice David Richards,And
Judgment Date13 June 2017
Neutral Citation[2017] EWCA Civ 408
Docket NumberCase No: B6/2015/3887+4366
CourtCourt of Appeal (Civil Division)
Date13 June 2017

[2017] EWCA Civ 408

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT, FAMILY DIVISION

Sir Peter Singer

GL 13D01112

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice McFarlane

Lord Justice McCombe

and

Lord Justice David Richards

Case No: B6/2015/3887+4366

Between:
Julie Therese Sharp
Appellant
and
Robin Duncan Sharp
Respondent

Frank Feehan QC and Deepak Nagpal (instructed by Josiah-Lake Gardiner) for the Appellant

Jonathan Southgate QC and Joseph Switalski (instructed by Harrison Clark Rickerby) for the Respondent

Hearing date: 23 rd February 2017

Approved Judgment

Lord Justice McFarlane
1

In White v White [2001] 1 AC 596 (' White') the House of Lords established what has become a principle that the matrimonial assets of a divorcing couple should normally be shared between them on an equal basis. The present appeal requires this court to consider whether that is inevitably the case where the marriage has been short, there are no children, the couple have both worked and maintained separate finances, and where one of them has been paid very substantial bonuses during their time together. Although the possibility of a relaxation of the sharing principle in such circumstances has been described in earlier cases, this is the first occasion that the point has arisen directly for determination at Court of Appeal level since White and Miller v Miller; McFarlane v McFarlane [2006] UKHL 24; [2006] 2 AC 618 (' Miller').

2

The case was heard at first instance by Sir Peter Singer, sitting as a judge of the High Court. Following a four-day hearing in May 2015, with judgment handed down on 6 November 2015 ( [2015] EWHC 2921 (Fam)), the judge awarded capital totalling £2.725 million to the husband, which represented exactly 50% of the total matrimonial assets of £5.45 million (after deductions and concessions). The wife now appeals against that outcome. Her appeal is resisted by the husband.

The factual background

3

I shall refer to Mrs Julie Sharp as 'the wife' and Mr Robin Sharp as 'the husband', notwithstanding that their marriage ended in December 2014. They are each in their early 40's and have no children. The factual background can be shortly stated and I gratefully adopt the summary given by Sir Peter Singer in the opening paragraphs of his extremely clear and well-crafted judgment:

'2. Each party comes from a relatively modest financial background. Each of them worked hard to achieve the qualifications and experience which each of them brought to their relationship at the start of the six years for which their cohabitation and marriage lasted. W since before the parties met worked continuously for one employer and proved her value as a trader in a particular sector of the wholesale fuel trade. H was from before they met in mid-2007 continuously till October 2012 employed by an international company involved with IT. Their basic salaries were not very different in the early years of their cohabitation, around the £100,000 p.a. mark. But there was this significant difference, that W received discretionary annual bonuses until her trading activity recently became limited as a result of developments which affected her industry. For the central five years of their relationship W's bonuses totalled £10.5M, whereas any bonuses H's employment brought were comparatively trivial. The parties were both continuously employed until in October 2012 H took voluntary redundancy in circumstances which have been the source of one of the many challenges and disputes in this case.

3. The parties commenced cohabitation in rented accommodation at about the end of 2007, became engaged to marry in August 2008 and did so in June 2009. In anticipation of that marriage in November 2008 they purchased their first home, SD, in a Gloucestershire town. The property was purchased outright in joint names with funds, some £1.02M, provided exclusively by W. That figure includes some £200,000 spent on extensive works to the property…'.

4

In October 2012, the couple purchased a second property in joint names, LC, for £2M. Although they planned, in due course, to sell their first home, SD, events intervened and both houses are still currently owned by them, with the husband living in one and the wife in the other. At the time that the parties decided to purchase LC the husband took redundancy; he claims that this was so that he could project-manage the extensive refurbishment work that the couple then undertook on this property, the wife strongly disputes the extent of his role in that regard. They did not move to live in LC until September 2013, but by that time the difficulties in their marriage, that were soon to lead to divorce, had become apparent.

5

By at least February 2013 the husband had started a clandestine affair which, despite the growing suspicions of the wife, he continued to deny (with the full truth only surfacing during the course of his oral evidence in May 2015). Although the wife filed a divorce petition in December 2013, physical separation did not take place until the husband moved from LC to live at SD in July 2014.

6

The period of pre-marital cohabitation, therefore, ran from the end of 2007 until the marriage in June 2009, some 18 months, and the marriage effectively lasted until the divorce petition in December 2013 making a period of six years in all. A period that the judge described as 'not so desperately short … as some, but still by no means lengthy'.

7

Whilst it was not an agreed fact that the couple maintained separate finances, several significant unchallenged aspects of their financial arrangements (listed at paragraph 47 of the Appellant's Skeleton Argument) indicate that there was in fact a marked degree of separation, albeit, as the judge found (para 46) there was no 'deliberate and agreed intention on their part to maintain strict separation of their finances. For example, they would, not infrequently, split restaurant bills between them and, regularly, each pay half of any utility bills on the two properties. Further, although the husband was aware that the wife received substantial bonuses during the period, he was never privy to the details and, in addition to providing the total purchase price of the two houses, the wife fully funded the couple's various holidays and bought a series of three Aston Martin cars for the husband.

8

At the time of the hearing before Sir Peter Singer the total assets held by either party amounted to £6.9 million, of which LC represented £1.455 million, SD represented £1.067 million and £4.171 million was credited to the wife's bank accounts. The balance was made up with a range of other smaller elements. The figure for "matrimonial assets" of £5.45 million used by the judge in his final calculation was arrived at by subtracting £1.1 million from £6.9 million, being the rounded-up value of SD, which the husband conceded should be kept out of the "matrimonial asset" pot on the basis that it was acquired by the wife before the couple were married, and further subtracting £350,000 to reflect the balance of other pre-acquired assets.

The first instance hearing

9

As Sir Peter Singer's judgment shows, the parties adopted polarised positions at the first instance hearing. The wife's opening stance, which was to offer a lump sum of £400,000, had moved (at the close) to propose an unencumbered transfer of SD to the husband together with a lump sum of £130,000 to cover his legal fees (representing a total value of £1.23 million). In contrast the husband sought a total package, including SD, of £3 million. In addition to the dispute as to capital, there was a further issue concerning the parties' pensions which the judge resolved and which is not the subject of appeal.

10

The judge was highly critical of the way that the wife had sought to develop and pursue a range of points within the proceedings. In particular, her attempt to run a case based upon the husband's conduct was, as the judge found it to be, both unfounded and disproportionate to the overall wealth of the parties. In addition, in a passage of the judgment attractively entitled "clutter-clearance", the judge cut through a whole range of issues that had been raised by the parties. No challenge is made to the judge's conclusions on these points and it is, therefore, not necessary to spell them out in this judgment. Within that section of the judgment, however, the judge did make the following observations which are relevant to the central issue:

'[referring to the wife's case that it was a "coincidence" that the payment of substantial bonuses to her during a 20-year career occurred during the marriage] … I of course accept that it is a circumstance, and indeed quite a remarkable circumstance, of the case, and that it would indeed have had a quite other cast if W's bonuses had been in the bag before they met.' [paragraph 28]

'The simple fact is that the two of them had the good fortune in those years of their relationship as a result of extraneous market movements in her commodity sector that W was able to mine very profitable seams for her employers, for which £10M of bonuses was their recognition and her reward.' [paragraph 33]

11

From paragraph 44 onwards the judge reviewed the parties' respective cases starting with the wife's submission that the entirety of the capital value falling for distribution arose from her 'unilateral assets', which were received by her in the context of a "genuine dual career family" and where the couple had maintained a strict separation between their respective finances. At paragraph 46 the judge summarised the wife's case and stated his conclusion on the factual basis underpinning this point:

'Mr. Feehan maintains that sharing in this case is not appropriate at all once H's needs have been met, and that the wealth built up from earnings and...

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3 firm's commentaries
  • The Sharing Principle In Short Marriages
    • United Kingdom
    • Mondaq UK
    • 16 September 2021
    ...How should they apply if there are children of the marriage? Prior to 2021, the key case addressing these questions was Sharp v Sharp [2017] EWCA Civ 408, which has been used to suggest that in the case of a short and childless marriage, the sharing principle should be departed from and the......
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    ...the court will adopt a different approach to the situation where the marriage was short but there are no children. Sharp v Sharp [2017] EWCA Civ 408 The parties were married for six years and had no children. The parties had co-habited for 18 months prior to getting married. The marriage wa......
  • The Sharing Principle In Short Marriages
    • United Kingdom
    • Mondaq UK
    • 16 September 2021
    ...How should they apply if there are children of the marriage? Prior to 2021, the key case addressing these questions was Sharp v Sharp [2017] EWCA Civ 408, which has been used to suggest that in the case of a short and childless marriage, the sharing principle should be departed from and the......
1 books & journal articles
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    • Wildy Simmonds & Hill The Single Family Court: a Practitioner's Handbook - 2nd Edition Contents
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    ...from Equality) [2003] EWHC 611 (Fam), [2003] 2 FLR 108. 69 Foster v Foster [2003] EWCA Civ 565, [2003] 2 FLR 299. 70 Sharp v Sharp [2017] EWCA Civ 408. 71 Fleming v Fleming [2003] EWCA Civ 1841, [2004] 1 FLR 667. 72 Kimber v Kimber [2000] 1 FLR 383. 73 Atkinson v Atkinson [1995] 2 FLR 356; ......

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