June 22, 2017
Should matrimonial assets always be shared between the parties on an equal basis?
What about when the case involves a ‘short marriage’?
The Court of Appeal has recently handed down judgment in the case of Sharp v Sharp  EWCA Civ 408. The lead judgment is by Lord Justice McFarlane who describes the issue to be grappled with as follows:
‘In White v White  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  UKHL 24;  2 AC 618 (‘Miller’).’ (see paragraph 1)
The wife was a trader and the husband worked in IT. They initially both had basic salaries of around £100,000pa, but the wife received annual bonuses of around £10 million pounds during the marriage. The marriage lasted for around 6 years, including 18 months of pre-marital cohabitation.
McFarlane LJ considers in depth the relevant legal cases, which is outside the scope of this news article.
McFarlane LJ was clear at paragraph 75 that:
‘Nothing that is said in this judgment is intended in any manner to unsettle the clear understanding that has been reached post-White on the approach that is to be taken to the vast majority of cases. The focus of the present appeal, which is very narrow, is upon whether there is a fringe of cases that may lie outside the equal sharing principle.’
However, the court held that in a case such as this:
‘…fairness may require a reduction from a full 50% share or the exclusion of some property from the 50% calculation.’ (see paragraph 97)
The court limited the husband’s total share to £2 million from a total pot found to be £6.9 million at first instance, but excluded the wife’s liquid capital from being part of the matrimonial assets for equal sharing. The husband received one half of the capital value of the two properties (his share was £1.3 million) and was provided with an additional award amounting to £700,000 to reflect a combination of the following 3 factors:
‘(a) the standard of living enjoyed during the marriage; (b) the need for a modest capital fund in order to live in the property that he is to retain; and (c) some share in the assets held by the wife’ (see paragraph 114)
In the writer’s opinion, this case is likely to add to, rather than settle, the on-going discussion about the applicability of cases such as White and Miller to the division of matrimonial assets between the parties in ‘short marriage’ cases.
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White v White  1 AC 596
Miller v Miller; McFarlane v McFarlane  UKHL 24;  2 AC 618
Sharp v Sharp  EWCA Civ 408 (http://www.bailii.org/ew/cases/EWCA/Civ/2017/408.html)
Daniel Miller has been a practising family barrister since 2005.
He practises in all areas of family law, with a focus on financial remedy cases. He has had extensive exposure to financial remedy cases at all levels, which frequently involve disputed company assets, international issues, and trusts. He accepts work both under the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004.