ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION
MR JUSTICE SINGER
FD03D04472
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
LORD JUSTICE THORPE
LORD JUSTICE WALL
and
MRS JUSTICE BLACK
Between :
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ALAN JOHNATHAN RICHARD MILLER |
Appellant |
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- and - |
|
|
MELISSA SUZANNE MILLER |
Respondent |
Mr L Marks QC & Mr A Thorpe (instructed by Messrs Sears Tooth) for the Appellant
Mr N Mostyn QC & Ms. R Bailey-Harris (instructed by Messrs Withers LLP) for the Respondent
Hearing dates : 19th July 2005
Judgment
Lord Justice Thorpe:
Introduction
On the 5th April 2005 Mr Justice Singer handed down judgment in the present case. For the parties it had been a long wait since the trial had commenced on 11th and concluded on 15th October 2004. Singer J himself granted permission to appeal on 14th 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.”
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 Section 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.
The husband is English and forty-one years of age. The wife is American and thirty-six 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.
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.
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 the 14th 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.
This objective was achieved on the 29th January 2001 when the husband left Jupiter to join New Star as it commenced to trade. The husband brought with him from Jupiter three substantial hedge-funds and duly received 200,000 £1 shares in New Star issued at par. As a result of the move, the husband suffered a huge reduction in basic salary but acquired at par 200,000 shares which at the date of their issue were already being placed elsewhere at £80.00 per share. Furthermore, these shares had the obvious potential to rise significantly in value above even that high plane. Although the husband in August 2003 granted an option to Mr Duffield to purchase 75,000 of his shares at £80.00 a share in December 2006, the remaining 125,000 shares hold the potential for further gain.
In May 2001 the wife gave up her employment. She had developed a considerable interest in interior design, the London home was complete and attention turned to a villa in the south of France offered to the wife on her birthday in June and purchased in joint names in September 2001. Its refurbishment was completed by April 2002.
The parties had agreed deferring children at the outset of marriage. After all, at that date the wife was only just thirty-one. The husband suggested that she should abandon the contraceptive pill first in Autumn 2001 and again at Christmas. The wife wanted to wait until the work on the villa had been completed. Thus it was that in May she came off the pill and quickly conceived. Sadly in late August she miscarried. Despite every effort, the wife did not conceive again and on the 23rd April 2003 the husband left to pursue his relationship with another woman, whom he has since married.
The Proceedings.
Divorce proceedings swiftly followed and within the proceedings the real issue has been money. On the 17th October 2003 District Judge Bowman made a substantial order for maintenance pending suit. Amongst other directions she provided for the simultaneous exchange of narrative affidavits dealing with all relevant Section 25 factors not later than six weeks before the date fixed for the FDR. She also provided that each should answer the other’s questionnaire raised on their respective Forms E. I will refer later to the wife’s answer to questionnaire and also to the contents of the narrative affidavits.
Sumner J conducted the FDR hearing on the 6th February 2004. The FDR failed its primary purpose and an order was drawn to prepare the case for trial. The order was preceded by the following recital: -
“And upon the respondent declaring that she will not be relying upon Section 25 (2) (g) of the Matrimonial Causes Act 1973 in the prosecution of her claim for ancillary relief against the petitioner.”
However paragraph 9 of the order provided for the simultaneous exchange of affidavits in reply to the narrative affidavits filed pursuant to the order of District Judge Bowman. These reply affidavits were duly filed in mid-April.
The next relevant development was a pre-trial review before the President on the 29th July 2004. Nothing was then said concerning the wife’s promise not to rely upon conduct. However, on the 6th August her solicitors wrote to say that counsel had “come across the only recently reported case of G v G [2004] 1 FLR 1011.” They continued by saying that at the trial they intended to rely on G v G “to establish the facts that led to end of the marriage, and as a defensive shield to the reliance that no doubt will be made by your client on the duration of the marriage.”
The Trial.
The husband’s advisors inevitably regarded this as unprincipled and at the outset of the trial applied to the judge to rule that the wife was bound by her declaration and was, therefore, precluded from asserting that it was the husband’s conduct that had destroyed the marriage. The judge refused that application for reasons which he explained in a brief extempore judgment. He emphasised his statutory duty to consider all the circumstances of the case and particularly the criteria in s25(2). He noted that each of the parties had given a lengthy account of the marriage and its breakdown in their narrative affidavits and that the husband was not proposing to withdraw any of his criticisms of the wife. Accordingly, the trial proceeded, each of the parties being in the witness box for about a day. Mr Duffield was called the husband’s behalf and each of the parties relied upon a highly qualified forensic accountant to offer an opinion as to the value of the husband’s New Star shares. Inevitably the wife’s expert advanced the high ground and the husband’s the low ground.
The submissions advanced by counsel were equally polarised. Mr Pointer QC, who then appeared for the husband, submitted that the wife was only entitled to be returned to her former position as a professional woman living in a flat with an income of about £50,000 a year net. Mr Pointer submitted that that could be achieved by allowing her £500,000 to purchase a flat and a £120,000 to cover three years of revenue shortfall whilst she worked her way back to her former level. Thus, he urged, the husband’s offer of £1.3m was generous.
Mr Mostyn asserted that as a consequence of the decision in White v White [2001] 1 AC 596, the proper approach was to calculate the wife’s award by reference to the marital acquest, that is to say the increase in the husband’s fortune during the period of marriage. The extent of the acquest was much in dispute. Fundamentally, it was argued for the husband that the New Star shares were acquired before the marriage, since they were the subject of the gentlemen’s agreement between the husband and Mr Duffield in May 2000. The obvious counter was that since they were not acquired by the husband until January 2001 they were the product of the years of marriage. We may add to that the differences between the wife’s accountant (£20m) and the husband’s accountant (£14m). From all that disputed territory Mr Mostyn drew his submission that the wife’s award should be £7.2m, representing 37.5% of the marital acquest.
The effect of Singer J’s judgment can be broadly summarised as follows:
He accepted the wife’s evidence as to the circumstances of the marriage and its breakdown.
He declined either to rule on the difference of opinion between the forensic accountants or to put a value on the New Star shares.
He rejected the approach advocated by both Mr Pointer and Mr Mostyn.
He held that the wife’s half-share of the French villa should go to the husband but that the wife should have the London home valued at £2.3m.
He added a lump sum of £2.7m to enable him to conclude his judgment with the following sentence:-
“A global award equivalent to £5m (plus the furniture and chattels which have agreed) seems to me a fair outcome irrespective of what ever value the husband in due course may achieve for the New Star shares.”
The Appeal.
In his grounds of appeal and skeleton argument Mr Marks contended: -
The judge erred in permitting the wife to adduce evidence as to the cause of the breakdown in the face of her FDR declaration.
The judge erred in holding that the husband was to blame for the breakdown of the marriage and that this consideration shielded the wife from the husband’s reliance on the short duration of the marriage.
The judge was plainly wrong to justify his substantial 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 on a long term basis.
The judge wrongly rejected a clear line of authority that established the principle on which claims were to be determined in short marriage cases. In particular he relied upon S v S [1976] FLR 640: H v H [1981] 2 FLR 392: Robertson v Robertson [1983] 4 FLR 387 and Hedges v Hedges [1991] 1 FLR 196.
In his skeleton argument Mr Mostyn had skilfully developed a response to each of the appellant’s grounds. However at the conclusion of Mr Marks’ submissions he was asked to address only two questions, namely: -
Was the judge’s conclusion sufficiently explained and reasoned;
Was the judge’s overall award plainly excessive?
In a succinct oral submission he characterised the judgment as heavily nuanced but submitted that it was possible to construct an adequate and clear rationalisation from a careful analysis of its key paragraphs. From those paragraphs it emerged that the judge was clearly impressed by the wife’s commitment to the marriage. Its short duration was neutralised by the combination of that commitment and the wife’s comparable innocence in its breakdown. Furthermore the judge had had proper regard to the wife’s needs.
As to the scale of the overall award Mr Mostyn emphasised that it represented something between one sixth and one seventh of the husband’s fortune. The product of the marriage was something between £12m and £16m. Taking a middle figure, £5m represented 34% of the marital acquest.
Finally he submitted that before we could interfere it would not be enough for us to conclude that the judge’s reasoning was too attenuated if we were satisfied that the overall award lay within the very wide ambit of his discretion. Only if we concluded that the award was plainly excessive as well as inadequately reasoned could we interfere.
Conclusions.
The procedural point.
Mr Marks’ criticisms are at least superficially well directed. The case of G v G (Financial Provision: Separation Agreement) was decided in this court on the 28th June 2000 but only reported some four years later. That report clearly led to a major readjustment of the wife’s case. In her Form E she had reserved the right to rely on s25 (2)(g). In his questionnaire the husband required her to state her position if she intended to rely on conduct which it would be inequitable for the court to disregard. Her answer of 19th December 2003 stated: -
“The marriage came to an end at the sole behest of the petitioner who had formed an adulterous relationship with another woman. The respondent says that she is an innocent wife. In such circumstances the petitioner should not be heard to use the argument that “this marriage only lasted a very short time” (Brett v Brett [1969] 1 WLR 487).”
That was, therefore, the case she declared that she had abandoned at the date of the FDR some six weeks later. However, the case revived by her solicitor’s letter of the 6th August was the very same case.
In my judgment that analysis does not carry Mr Marks very far. A retreat from a clear declaration is generally to be deprecated and may in many cases result in a heavy costs penalty. But such a declaration cannot possibly override or circumscribe the trial judge’s obligation to investigate whatever he conceives relevant and necessary to enable him to discharge his statutory duty. Ancillary relief proceedings are quasi- inquisitorial and the judge is never confined by what the parties elect to put in evidence or by whatever they may agree to exclude from evidence.
Singer J was indisputably right to rule as he did on 11th October, particularly given that the declaration had to be weighed in the context of the contentious affidavits filed by the parties both before and after the making of the declaration.
Mr Marks sought to meet that difficulty by asserting that as a matter of principle and construction allegations of conduct in ancillary relief could only be advanced under s25(2)(g) and if that sub-section was excluded by agreement or concession then conduct could not be introduced as an aspect of any other of the statutory criteria. Thus it was not open to a party to disavow s25(2)(g) and then contend that the other spouse’s contribution, which s25 (2)(f) requires the court to assess, was valueless or devalued because of attitude or conduct. In support of this submission he relied upon the case of Wells v Wells only reported at first instance in a note at [2001] Family Law 656. The note could be read to record a conclusion that where a party alleges that the other has made a nil contribution to the welfare of the family the case must be advanced under s25(2)(g). However the note is ambiguous and without the judgment itself it is pointless to consider that authority further.
Mr Marks further submitted that it was not open to an applicant to finesse the other party’s reliance on the short duration of the marriage by asserting that the breakdown was the consequence of the other’s conduct. That case could only be mounted under s25(2) (g), as the wife had here correctly recognised by her response to questionnaire.
Mr Marks contended that were we to hold otherwise, we would be flouting the principle established in the seminal case of Wachtel v Wachtel [1973] Fam 72 and opening the floodgates to ancillary relief trials that would be akin to the bitter defended divorce that flourished prior to the Divorce Reform Act 1969.
These submissions cannot be right in my judgment. The statutory criteria are not to be rigidly characterised. The judge has an overriding obligation to regard and to reflect in his judgment “all the circumstances of the case”. In my judgment the language of s25(2)(g) is intended to discourage allegations of conduct unless it is such that it would be inequitable to disregard. In other words it is pointless, and in terms of costs, risky, to assert misconduct that does not measure high on the scale of gravity. But conduct that would not merit advancing under s25(2)(g) is not therefore irrelevant or inadmissible. Often the court’s assessment of the worth of the comparable contributions will require consideration of motives, attitudes, commitments and responsibilities.
As to the relevance of those factors in assessing the significance to be attached to the duration of the marriage, the proper approach is already settled by my judgment in the case of G v G with which the President and Wright J agreed. In presenting his appeal Mr Pointer criticised Connell J. for effectively relying on the husband’s misconduct as a counter-balancing factor to the brevity of the marriage. My response to that submission is expressed in paragraph 34 of the judgment when I said: -
“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.”
That passage seems to me to be fatal to Mr Marks’ submission. He sought to distinguish the case by asserting that there the wife’s case at trial had been both presented and found to be conduct inequitable to disregard within the meaning of s25(2)(g). The judgment of Connell J in the Family Division was contemporaneously reported at [2000] 2 FLR 18. I do not consider that Connell J did so find. Further even had he done so I would not consider the distinction that Mr Marks seeks to draw as valid. On this aspect Singer J directed himself by reference to the decision of this court in G v G and he was clearly right so to do. Having seen and heard the parties extensively cross-examined he was plainly entitled to conclude that the husband was to blame for the breakdown of the marriage. That finding entitled him to give much less weight to the duration of the marriage than he would have done had he found that the wife was to blame for its breakdown or that the parties had separated consensually each acknowledging unexpected incompatibility. Those conclusions lead to the rejection of Mr Marks’ first and second grounds.
Principles.
It is now convenient to consider Mr Marks’ fourth ground in which he vigorously but vainly sought to argue that cases largely decided about twenty-five years ago settled the principle to be applied in determining claims arising out of brief marriages. The principle drawn from those early cases was that the award should be enough to get the unhappy applicant back on her feet. I think that characterisation is probably drawn from the judgment of Balcombe J in Robertson v Robertson when at 392 he said: -
“I also order a lump payment of £15,000 which seems to me more than adequate to enable the wife to get on her feet again.”
There are a number of very good reasons why that should no longer be the modern approach. First, it originated and developed during long years in which the yardstick for measuring the extent of the applicant’s claim was an assessment of her reasonable requirements. Second, a marriage is not to be equated to a purely financial venture where the court may redress breach of contract or the disintegration of a partnership by an award of damages or other financial relief. Section 25 requires a more sophisticated evaluation of the extent of the wife’s commitment to and investment in the marriage emotionally and psychologically. In some cases it may be necessary for the court to assess emotional and psychological damage and the extent to which the applicant’s future capacity and opportunity to enter into a fulfilling family life has been blighted. What a party has given to a marriage and what a party has lost on its failure cannot be measured by simply counting the days of its duration.
Third, Mr Marks’ reliance on the old cases is clearly precluded by the decision of this court in Foster v Foster [2003] 2 FLR 299. Between that case and the present there is an obvious similarity in that the duration of each was approximately 2¾ years. In other respects, the cases are clearly distinguishable. In Foster the means of the parties were comparatively modest, the assets being approximately £400,000. Furthermore, during the marriage each had contributed to property dealing and development which had proved profitable. The wife had made the greater financial contribution to the dealing. The district judge decided to return to each what he or she had brought into the marriage as well as such post-separation contributions as he or she had made. The profits made during the marriage were to be divided equally between the parties. The result of that exercise left the wife with approximately 61% and the husband 39%. The wife appealed successfully to the circuit judge who increased her share to 70%. The husband’s appeal succeeded and this court restored the order of the district judge. Since it was a second appeal caught by the provision of Section 55 of the Access to Justice Act 1998 this court could not grant permission unless the husband demonstrated an important point of principle or practice or some other compelling reason. Hale LJ explained that the husband had cleared that hurdle thus: -
“in our view the case does raise the important issue of the proper approach, in the light of White v White and later decisions of this court, to the parties respective contributions in a short childless marriage where both are working. Accordingly we gave permission to appeal.”
Accordingly, in her judgment Hale LJ considered the impact of the decisions in White v White, Cowan v Cowan [2002] FAM 97 and Lambert v Lambert [2003] 1FLR 139. Counsel for the wife argued that those authorities were solely concerned with the problem of evaluating the very different contributions of breadwinner and homemaker over a long marriage where there have been children to bring up. They were of no relevance to a short, childless marriage where both parties had been working. Lady Justice Hale rejected that submission emphatically. In paragraph 19 she recorded counsel’s eventual concession that where a substantial surplus had been generated by joint efforts it could not matter whether they had taken a short or long time to do so.
Although the facts of that case are very different and although much of the judgment is directed to the features of the particular case, it is clear that Hale LJ was signalling a fresh approach to measuring of awards in cases involving marriage of short duration. In my opinion, she says so expressly in the passages to which I have referred. Furthermore, she underlines that implicitly by omitting any reference to the old cases, cases which would of course have been very familiar to her.
The Award.
That leaves for consideration the husband’s third ground, the only ground which in my judgment held substantial prospects of success. Was the judge right to found his award on the wife’s legitimate expectation? Was his award plainly excessive? To answer these questions requires a careful analysis of the judgment.
The judge’s explanation for the end result is by no means straightforward or clear. The case was extremely hard fought by the best available professionals on both sides. At its conclusion the husband was surely entitled to a clear explanation as to why the judge had opted for an award much closer to the submission of Mr Mostyn. Mr Mostyn effectively conceded the absence of a clear and simple explanation when he described the judgment, with customary advocacy, as heavily nuanced. I have read and re-read the judgment in a search for its true ratio. In the end I think that it can be discerned from the following significant paragraphs taken in combination.
First, in paragraph 48 the judge explains his rejection of the old yardstick: what is required to get the wife on her feet. In paragraph 48 he said: -
“I can therefore accept that there may be cases - relatively extreme cases - where such an approach would remain valid. But I am satisfied that it would not be fair to apply it in this case. For what it ignores is the key element to my mind present here. That is that by virtue of this marriage, taken in its proper setting both in terms of the way it was reached and the way it ended, H gave W a legitimate expectation that she would on a long-term basis be living on a higher economic plane that the rented flat and her £85,000 p.a. job had afforded her when she left them to live with him as his wife at the house he bought for that purpose. It would in my judgment quite simply be unfair to take the view as submitted by Mr Pointer that £500,000 for the purchase of a flat and £120,000 to cover 3 years of revenue shortfall until she could recoup her position in her specialist field would be adequate, and thus that H's £1.3M offer is very generous.”
This paragraph reveals that the decisive factor for the judge was that the marriage, taken in its full context, gave the wife a legitimate entitlement to a long term future on a higher plane of affluence than she had enjoyed prior to marriage.
This then recurs in paragraphs 64 and 65 when the judge said: -
“This then as it appears to me is one of what may be a rare group of cases where the attempt to measure what the yardstick of equality should be set against is to beat the air or to hunt a chimera. The game is simply not worth the very uncertain and extremely expensive candle. Fairness can be better achieved, in my view, by carrying out the discretionary exercise ordained by the statute in recognition of all the relevant factors. Amongst those the short duration of the marriage, set in the context of its factual matrix as I have attempted to do, is undoubtedly very significant. Of course I must strive to avoid a discriminatory approach based on outmoded concepts of differential financial and non-financial contributions. I must reflect what I believe is that modern approach by not limiting the award to an amount which will put this wife back where she was or which will, rather patronisingly, put her back on her feet.
Rather, as it seems to me, the award should recognise that H has by this marriage, notwithstanding its short duration, given W a reasonable expectation that her life as once again a single woman need not revert to what it was before her marriage, and that she should be able to live at a significantly better standard in terms of accommodation and spendable income, even if at one which does not approach the level that H can afford for himself and his new family.”
Whilst I accept that in the context of this case the judge was entitled to regard as “the key element” the wife’s “legitimate expectation” of living to a higher standard as the ex-wife of Mr Miller, I emphasise that it is a fact-dependent conclusion and it is not to be elevated into a principle or yardstick filling a vacuum created by the rejection of the restitutionary objective sought in the old cases.
Now it is necessary to cite in full the concluding four paragraphs under the sub-heading “The Award”: -
“My conclusion is that W should have the opportunity to retain the former matrimonial home for as long as she chooses to live in it. Subject to any adjustment to the form of the order to accommodate her potential exposure to US tax I intend that it should be transferred to her free of mortgage. That will involve H paying off the liability of about £500,000 secured on it or adding it to the lump sum payment to enable W to redeem it herself. The value of that property after deduction of notional sale costs has been taken as about £2.3M.
In addition a fair outcome to this case is that H will pay W a lump sum of a further £2.7M. If the Duxbury methodology is taken simply as a guide then the computer programme Capitalise suggests that for a woman soon to be 36 a fund utilised in accordance with usual principles would generate an initial annual net income of about £98,000.
That is very significantly less than the budget of well over £200,000 which W asserted was the sum of the costs met by H in the last year of cohabitation, suitably trimmed to reflect his departure. She will not be able to afford that standard, but with an income of that order plus whatever she can earn she will be able to live to a very tolerable standard in that house.
A global award equivalent to £5M (plus the furniture and chattels which have been agreed) seems to me a fair outcome irrespective of whatever value H in due course may achieve for the New Star shares.”
It is possible to elaborate on the factors that emerged in those crucial paragraphs from the judge’s earlier findings. First, as to “The Way (the marriage) was reached”, the judge in paragraphs 27 – 32 considered what weight should be given to the five years of intimate relationship immediately preceding the marriage. Essentially, he adopted the middle way. In paragraph 29 he said: -
“This rather tentative relationship, at least on H's part, until their engagement does not fit entirely happily to my mind with the epithets 'exclusive' and 'committed' which Mr Mostyn invites me to apply. But it was certainly several grades more significant than H's rather dismissive description of it as one merely of 'girlfriend and boyfriend'.”
Then in paragraph 32 he said: -
“Into the balancing exercise I will put the fact as I find that there was no mutual commitment to make their lives together until their engagement in July 1999. Until then their ties were tentative and their separate expectations did not accord. In this relationship there was no pre-engagement honeymoon to blend seamlessly into marriage. I tend therefore to favour Mr Pointer’s submissions and treat this a marriage of relatively short duration.”
As to “the way (the marriage) ended”, the judge left the middle ground to accept the wife’s case. His essential findings are in paragraphs 37 and 38 when he said: -
“This marriage may well have been doomed, but my conclusions as an analysis of the explanations that I heard from both of them are these. H may well have developed an irritation with aspects of W's personality and behaviour. This reflects more his lack of adaptability than any shortcomings on her part. The sum of what he complains of is not marriage-breaking stuff. I do not subscribe to his view that his burgeoning relationship with the woman with whom he lives was a consequence rather than a cause of the breakdown.
None of this, to state the obvious, is conduct which it would be inequitable to disregard in arriving at a resolution of the financial dispute. But it has the result that it would be unfair to W to concentrate solely on the bare chronology of this marriage without acknowledging that she did not seek to end it nor did she give H any remotely sufficient reason for him to do so.”
In relation to their respective contributions, the judge’s findings were again favourable to the wife. In considering their rival claims to the French villa he said: -
“I have no doubt the wife is right that she was far more absorbed in the grand scheme as well as the minutiae of the properties conversion…”.
His overall conclusion is clear from paragraph 43 in which he said: -
“W's contributions to their family life were non-financial (save to the extent that she worked at the start of the marriage). She aspired to provide, as I have said, the domestic and social fabric in which they could both enjoy the fruits of H's success and the opportunities for leisure, relaxation and enjoyment which were available. A major contribution in this context was the planning and oversight she brought to the refurbishment, equipping and furnishing of the French property to which H has become so attached. Neither the modest period during which she was able to make this contribution nor the very considerable scale of H's efforts and the rewards they brought him affect the proposition, which I accept, that incommensurable though these contributions are as chalk and cheese, nevertheless no discriminatory attitude should be allowed to treat them as other than equivalent.”
Amplification of the paragraphs explaining the award is also capable of extraction from earlier paragraphs. As to the transfer of the former matrimonial home, a glancing reference in paragraph 40 reveals that her objective in seeking to retain it was in part to use its extra space as an office for her projected future consultancy in interior design. It must also be balanced against 26, the paragraph in which the judge concluded that the fairer outcome was for the husband to have the outright ownership of the second home. Although there is no description of the matrimonial home in the judgment, during the course of argument we were shown the particulars prepared in the sale to the husband which demonstrate that it is a comparatively modest property with three bedrooms on four floors.
As to the judge’s seeming reliance on the Duxbury methodology in paragraph 71, he had earlier stated in paragraph 40: -
“Although I shall refer as a point of reference only to a Duxbury calculation I do not propose to decide the case upon the basis of any strict or even tangential reliance upon that to fix the award…”.
The reference to the wife’s earning capacity in paragraph 72 is apt, given that the judge had found in paragraph 40: -
“But that she has and should exercise an earning capacity given her age and aptitude is incontestable, and I take it into account as one of the factors of the case. ”
The reference in the final paragraph to “whatever value the husband in due course may achieve for the New Star shares” is in, my judgment, significant. In his initial outline of the case the judge recorded the prospect of future sale of the New Star shares which might, subject to clearing a number of hurdles, “net him something of the order of £24.44m. There is another reference in paragraph 41 when the judge said: -
“In addition there is a good likelihood that at some stage the potential of his shares will be unleashed.”
It is easy and superficial to characterise this as a pay-off of £5m for a mere 2¾ years of marriage. In my judgment the reality is very different. Although the judge did not attach much weight to the four years preceding engagement, the fact is that at the age of twenty-six the applicant committed herself to this man. The judge’s findings show that during that period ambivalence was all on the husband’s side. In paragraph 28 he wrote: -
“Until (the engagement) the wife was hoping to marry the husband with more enthusiasm than he was demonstrating for that commitment, in my judgment.”
On engagement she moved to London and found fresh employment. At the outset of the marriage, she worked to ensure the emergence of a primary home and a holiday home fit for his status as a leader in his chosen field. Once that was achieved, she tried for a family. The responsibility for the collapse of that endeavour must in part be ascribed to the husband’s decision to end the marriage. Finally it must not be forgotten that the net value of the award is in reality £4.5m given the judge’s decision that the wife’s half share in the villa was to go to the husband.
On that analysis, my ultimate conclusion is that the judge’s award was both sufficiently if obliquely explained and that it cannot be labelled plainly excessive. In my judgment, it lies at the top end of the permissible bracket. Had I been sitting at first instance, I do not think that I would have gone so high. However, I would emphasise that the facts and circumstances of the case are highly unusual. The ambit of the judge’s discretion in cases involving very large assets and a short childless marriage is particularly wide. Furthermore Mr Mostyn rightly reminded us of the words of Lord Hoffman in Piglowska v Piglowska [1999] 1 WLR 1360 HL when he said: -
“First, the appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It applies also to the judge’s evaluation of those facts. If I may quote what I said in Biogen Inc. v. Medeva Plc. [1997] R.P.C. 1,45:
“The need for appellate caution in reversing the trial judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance… of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.”
The second point follows from the first. The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case but also of a reserved judgment based upon notes, such as was given by the district judge. These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2). An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself.”
Although I have not found this an easy appeal, in the end I am firm in my conclusion that it must be dismissed. My judgment may well only serve to increase the husband’s sense the courts have been hard on him but the limitations on the role of the appellate court are clearly spelt out.
Lord Justice Wall:
I agree. Like Thorpe LJ, whose judgment I have had the opportunity to read in draft, I have not found this an easy appeal. In the event, however, I have been persuaded by Mr. Mostyn’s skilful analysis of the judgment: (a) that the judge has sufficiently, if exiguously, explained his reasoning process; and (b) that the award is not so excessive as to be outside the band within which reasonable disagreement is possible.
It was, I think, unfortunate, that Mr. Marks devoted so much of both his skeleton argument and his oral submissions to his first two grounds of appeal. These were: (1) that the judge erred in the exercise of his discretion by permitting Mrs. Miller to adduce evidence as to the alleged cause of the breakdown of the parties’ relationship, despite the parties having previously agreed that Mrs. Miller would not be relying on any allegation of conduct which it would be inequitable for the court to disregard; and (2) that by conducting “an inquisition into which party was more to blame for the breakdown of the relationship”, and by finding that Mr. Miller’s “fault in the divorce represented a shield to the assertion that this was a short marriage case”, the judge conducted an exercise which was “outside his discretion, the Matrimonial Causes Act 1973 (MCA 1973) having proscribed inquiry into the fault behind divorce save where there was conduct by one party which was such that it would be inequitable fort he court to disregard it”.
In my judgment, these are bad points, for all the reasons Thorpe LJ gives in paragraphs 22 to 31 of his judgment. I was equally unimpressed by Mr. Marks’ deployment of the “floodgates” argument, expressed in his skeleton, in the following way: -
“The court should not attempt to step into the shoes of one man and say that the straw that broke the camel’s back in the relationship with his wife would not have broken the back of the court were the court in that relationship with that wife. Civil and criminal law dictate that you must take a man as you find him. The Family Division, however, pursuant to this judgment, must hereafter apply the test of an objective bystander in assessing where the fault for marital breakdown life. The objective bystander, in this case the judge, stands loftily over the relationship and imposes his own moral perception of right and wrong in the midst of the enormous emotional upset of a marital breakdown.”
I recognise in this passage neither what Singer J did, nor what judges in short marriage cases will be required to do in the future. Nor do I agree with Mr. Marks when he asserts of the judge: -
“His view, set out over five short paragraphs of his judgment, attributes fault to the husband. Necessarily, that judgment is wholly flawed given the complexities of the human relationship, and is an exercise upon which he should never have embarked. ”
Limited examination of the parties in cross-examination can only have provided the judge with the most superficial perspective of the parties and their marriage. Despite the obviously limited scope of the enquiry, the learned judge considered himself able to point the finger of blame for the breakdown of the relationship at the husband.
The extravagance of Mr. Marks’ rhetoric can, I think, be tested both by what Singer J found, and how he went about it. In the first place, he was plainly right, in my judgment, to follow and apply paragraphs 32 to 34 of Thorpe LJ’s judgment in G v G (Financial Provision: Separation Agreement) [2004] 1 FLR 1011, paragraph 34 of which Thorpe LJ has set out in paragraph 30 of his judgment in the instant case, and which I will not repeat. I find it, however, an entirely accurate analysis of how a judge exercises a proper judicial discretion when dealing with section 25(2)(d) of the Matrimonial Causes Act 1973 (MCA 1973) in a short marriage case.
Secondly, an important factor for the judge (and manifestly one of the circumstances of the case) was Mrs. Miller’s commitment to the marriage. We know that Mrs. Miller miscarried in August 2002. In paragraph 36 of his judgment, Singer J said: -
“Until only a few months before their separation these spouses were both hoping to have a child. He disengaged from that process at a time when he may well have sensed at least the beginnings of the relationship that led him to leave (her). ”
The issue was not complex. Part of Mrs. Miller’s case, as found by the judge, was that the breakdown of the marriage was “largely if not entirely attributable to an intimate relationship H formed with the woman with whom he now lives, the physical separation having occurred the day after he revealed the association” to his wife. The judge had taken 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.”
Moreover, the investigation had proved valuable. The judge commented: -
“I do as a result of hearing this evidence regard myself as better able to position myself fairly in relation to W's claims than otherwise would have been the case. I am moreover satisfied that H was not put at a disadvantage by this ruling. W did not seek to go beyond what she had already said on the topic in her affidavit evidence. I do not believe that H’s case on these issues would have been improved by any more intensive preparation than had already be devoted to it ”
It is to be noted that the judge embarked on this fact finding exercise by reference to the particular facts of the case. This is, of course, what the profession would call a “big money / short marriage” case. On the particular facts of this case, the reasons for the breakdown of the marriage were relevant. That does not mean that they will be relevant in every case, nor does it mean that, if they are, there will need to be a disproportionate amount of time and costs spent investigating them. In this respect I agree with and adopt the following passage from Mr. Mostyn’s and Ms Bailey-Harris’ skeleton argument: -
“49.16 Mr Marks raises the spectre of Pandora’s Box if the route that Singer J took is allowed to stand. He says that if the judgment is approved there would be merit in undertaking that assessment in every case. He says that it would open the floodgates to an inquiry that has been dead for 30 years. He says that an “inevitable consequence would be the rebirth of the defended divorce”. This is all so much rhetoric.”
49.17 In the vast majority of cases established principles will guide the court to its conclusion without any need for consideration to be given to the reasons for the breakdown of the marriage. In all cases where the assets are insubstantial the predominant criterion will be the parties’ respective needs, principally for accommodation. In a long marriage case, where the assets are substantial, and where they have been built up during the marriage, the result will almost invariably be an equal division. In a medium length marriage, where the assets are substantial, there may be a modest departure from equality to reflect the principle that a domestic contribution is an accrual over time. In a short marriage case, where there are children and where the assets are substantial, amongst the s 25 considerations the court will give particular recognition to the needs of the wife as the primary carer and to her future contributions in that role.
49.18 The court is only likely to entertain evidence and argument as to the reason for the breakdown of the marriage in a tiny handful of cases, where the marriage is short and childless, and where the assets are substantial, so much so that it can be said that the order that fairness requires can be met without impinging on the payer’s needs. Moreover the judge is only likely to entertain evidence as to the cause of the breakdown of a marriage (in a case where S25 (2)(g) conduct is not pleaded) where, as here, one party not only relies strongly on the durational argument but also unjustifiably blames the other party for the breakdown in circumstances where his own hands are not clean. In the majority of short childless big money marriages the court will recognise, and the parties will accept, that the failure is a mutual misfortune where attribution of blame simply does not arise. In such cases there are no G v G poles within which the judge can align himself.
49.19 It can therefore be seen the spectre of floodgates is misconceived. The facts of this case were exceptional, as they were in G v G.
49.20 In this case the parties had set out their cases as to the reason for the failure of the marriage in their affidavits. They were shortly cross-examined on the topic. H did not instruct Mr Pointer to hold back in his cross-examination of W. Having read and heard the evidence Singer J was able to make the finding that was blindingly obvious to anyone who had attended the trial (Paragraph 37):
‘The sum of what he complains of is not marriage-breaking stuff. I do not subscribe to his view that his burgeoning relationship with the woman with whom he lives was a consequence rather than a cause of the breakdown.’”
Finally, in relation to these two grounds of appeal, Singer J saw each of the parties in the witness box for a day. I entirely reject Mr. Marks’ submission that for an experienced and perceptive judge of the Family Division this “provided the judge with the most superficial perspective of the parties and their marriage”. As the passages which I have cited clearly demonstrates, the judge said the investigation had helped him. I am no doubt at all that it did.
In my judgment, Mr. Marks had two powerful arguments, both capable of very simple expression. The first was that the judge had simply not explained himself. The second was that the award was so large that, in the absence of a proper rationalisation, it was simply outside the band of reasonable decisions, and must, accordingly, be plainly wrong.
I acknowledge that, in my initial reading of the judgment, I was struck by the first point. This led me to think that the judge, highly experienced as he is in “big money” cases, may have stepped “outside the band” in awarding Mrs. Miller a total of £5 m. On the one hand, the judge had, rightly in my view, rejected the “needs” approach identified in the pre White v. White [2001] 1 AC 596 (White) cases. He had, equally rightly in my view, rejected Mr. Mostyn’s “matrimonial acquest” approach. He had, again rightly, attempted to achieve fairness, and avoid discrimination by “carrying out the discretionary exercise ordained by the statute in recognition of all the relevant factors”. But what were the relevant factors? And how had he balanced them? These are not questions to which there are answers which stand out from the judgment.
And how had he arrived at £5 m? He had plainly decided that Mrs. Miller should be entitled to retain the former matrimonial home, and should give up her share in the French property. But those factors, as Mr. Mostyn was minded to concede only explain how he got to the lump sum of £2.7 m. A judgment should tell the parties before the court why they have won or lost. Mr. Miller is entitled to know why he has to write a cheque for £5 m as opposed to some lesser amount. In my judgment, he has a reasonable complaint when the answer has to be teased out of the judgment by nuance, or when the judgment is skilfully unpicked and then repackaged by Mr. Mostyn.
However, before turning to the judgment, the first question one has to ask, I think, is whether, as Mr. Marks submitted, the line of pre-White short marriage cases such as S v S [1977] Fam 127, Robertson v Robertson (1983) 4 FLR 387 and Attar v Attar (No 2) [1985] FLR 653 remain good law. I am in no doubt at all that the answer to that question is “no”, and that the approach adopted in those decisions, both at first instance and in this court, cannot survive in the light of the decision of the House of Lords in White.
I am reinforced in that conclusion by the decision of this court in Foster v Foster [2003] 2 FLR 299 in which Hale LJ, giving the leading judgment, plainly applied the principles identified in White in a short marriage case. This is part of what she said: -
“[14] As Thorpe LJ also said in Cordle, at para 34, the only universal rule is to apply the criteria in s 25(2) of the Matrimonial Causes Act 1973 to all the circumstances of the case (giving first consideration to the welfare of any minor children) and to arrive at a fair result that avoids discrimination. In White v White [2001] 1 AC 596, at pp 599-600, 603-606, Lord Nicholls explained that Parliament has declined to lay down any rules; it has given the courts a wide discretion to take account of all the relevant circumstances of the case; it has even repealed the original statutory objective of seeking to place the parties in the position in which they would have been had the marriage not broken down. Implicitly, the objective must be to achieve a fair outcome and there could be no presumption or starting point of equality of distribution. However, having conducted the statutory exercise,”
“a judge would always be well advised to check his tentative views against the yardstick of equality of division. As a general guide, equality should be departed from only if, and to the extent that, there is good reason to do so. The need to consider and articulate reasons for departing from equality would help the parties and the court to focus on the need to ensure the absence of discrimination.” (p 605)
[15] He also pointed out (p 605) that in seeking to achieve a fair outcome there was no room for discrimination between husband and wife and their respective roles. Whatever the division of labour chosen by the husband and wife, or forced upon them by circumstances, fairness requires that this should not prejudice or advantage either party when considering their respective contributions for the purpose of s 25(2)(f) of the 1973 Act. Section 25(2)(f) refers to the contribution which each has made to the welfare of the family, including any contribution made by looking after the home or caring for the family. If in their different spheres each contributed equally to the family, then in principle it matters not which of them earned the money and built up the assets.
[16] White concerned a long marriage in which both parties had been engaged in breadwinning as well as homemaking and childrearing. The principle has recently been reaffirmed by this court in Lambert v Lambert [2002] EWCA Civ 1685, [2002] 3 FCR 673, [2003] 1 FLR 139, where the parties’ roles were more clearly demarcated, holding that it was unacceptable to place a greater value on the contribution of the breadwinner than that of the homemaker as a justification for dividing the product of the breadwinner’s efforts unequally (although of course there might be other reasons for doing so, such as a disparity in the parties’ needs).
[17] Miss Boyd, on behalf of the wife, however, argues that these cases were concerned with the problem of evaluating the very different contributions of breadwinner and homemaker over a long marriage where there have been children to bring up. They are of no relevance to a short childless marriage where both parties have been working. The court has to consider the duration of the marriage under s 25(2)(d). Here the only contributions to be considered under s 25(2)(f) are those in money or money’s worth and so the court is entitled to take account of the fact that one has contributed more than the other.
[18] This is a surprising proposition ………”
Foster v Foster was a case in which wealth had been accumulated during the marriage by the joint efforts of both husband and wife. The district judge decided, accordingly, that the right approach was to return to each party that with which they had entered the marriage and to share the wealth accumulated during the marriage equally between them. That approach was upheld in this court. The length of the marriage, in that case, was of very little relevance. As Hale LJ perceptively remarked, where “a substantial a surplus had been generated by their joint efforts, it could not matter whether they had taken a short or a long time to do so”. The case, in my view, is a warning of the dangers which can flow if there is a disproportionate emphasis on the brevity of the marriage.
The fact that the pre-White approach was discriminatory is, I think, well illustrated by looking at a case like Gojkovic v Gojkovic [1992] Fam 40, a decision now remembered more for this court’s judgment on costs than for its facts. It was, however, a very short marriage, during which the parties built up a fortune in the region of £4 to £5 million, all of which was in real property in the husband’s sole name. He offered the wife a flat worth £295,000 and a lump sum on a Duxbury basis (she was 49) of £532,000 designed to provide her with a net income for life, index linked, of £30,000 per annum. The judge awarded her £1.3 m, and this court dismissed the husband’s appeal.
It is now possible to see, with the wisdom of hindsight, that both the husband’s offer (and, it must be said, the judge’s award) were discriminatory. Had an applicant in Mrs. Gojkovic’s position applied for ancillary relief today, I have no doubt at all that the fair award for her would have been an equal division of the family fortune.
Gojkovic v Gojkovic was, of course, a contribution case par excellence, but it is nonetheless a good example of a case in which an unequal division of assets on a needs basis in a short marriage was, viewed with hindsight, both unfair and discriminatory.
In my judgment, the pre-White short marriage cases are all liable to attack on the basis that they are discriminatory. Mr. Marks, in oral argument, sought to turn the point by suggesting, that after a short and childless marriage between young people, it was in reality patronising to give a woman more money than she needed to make herself economically independent, and to enable her “to stand on her own feet”. It was a nice advocate’s flourish, and his use of the word “patronising” derived from paragraph 64 of the judge’s judgment, cited by Thorpe LJ at paragraphs 41 of his. However, the judge’s use of the word occurs in the context of the judge determining that “he must strive to avoid a discriminatory approach based on outmoded concepts of differential financial and non-financial contributions”. The question therefore is whether, in the instant case, an award limited to enabling Mrs. Miller to be economically independent and to “stand on her own feet” is discriminatory. In my judgment, the answer to that question is plainly “yes”.
Furthermore, I have to say I received no help on the difficult issue of quantum from Mr. Marks’ comparisons with awards for libel or professional negligence or personal injuries. Not only were such comparisons, in my judgment, irrelevant, but they seemed to me both to demean the status of marriage, and to take no account of the serious social, financial and psychological effects which irretrievable breakdown frequently have on those who suffer it.
So I am in no doubt at all that the judge was right to reject the pre-White cases. He was right to hold on to the terms of section 25 and the discretionary exercise, and to follow the guidance of Thorpe LJ in McFarlane v. McFarlane; Parlour v Parlour [2004] 2 FLR 893 at para 110: -
“The judges must remain focused on the statutory language, albeit recognizing the need for evolutionary construction to reflect social and economic change. The statutory checklist and the overall circumstances of the case allow the judge to reflect factors which are said to be inherent in either the entitlement model or the compensation model. But to adopt one model or another or a combination of more than one is to don a strait- jacket and to deflect concentration from the statutory language. Clearly in the assessment of periodical payments, as of capital provision, the overriding objective is fairness. Discrimination between the sexes must be avoided”
But the question abides: how did the judge reason his conclusion and reach his award? Mr. Mostyn did not, of course, have the luxury of submitting that the judge was right because he had accepted counsel’s submissions. There was no respondent’s notice. Mr. Mostyn played the width of discretion, fact specific, within the parameters cards, but readily acknowledged that they were not, as generalisations, enough. I searched his skeleton argument in vain for a specific answer to the question. Fortunately, Mr. Mostyn provided it in oral argument.
Mr. Mostyn began by acknowledging that he could not, as he put it, anatomise the one magnetic factor which had attracted the judge’s award of £2.7 m for the lump sum. The judge had, however, plainly and rightly taken account of the overall size of the husband’s estate, which Mr. Mostyn put as being in the order of £30m to £36m. The size of the matrimonial acquest was between £12m and £18m, and an award of £5m in total from such an estate was in no sense disproportionate. The judge had also been right to take account of Mrs. Miller’s commitment to the marriage, and had been entitled to use that factor to neutralize its brevity. When making an assessment of Mrs. Miller’s needs, the judge had been entitled to award her the former matrimonial home free of mortgage. He had also been right to make his finding, in paragraph 65 pf the judgment, that Mrs. Miller had a “reasonable expectation that her life as once again a single woman need not revert to what it was before her marriage”. Thorpe LJ has cited this paragraph in full in paragraph 41 of his judgment.
Against that background, Mr. Mostyn argued, the margin of appreciation inevitably remained at its widest in the big money, short and childless marriages cases. Within such a wide discretion, it was impossible to say that the judge had misapplied it. The key factors, which the judge had identified, were fairness, non-discrimination and Mrs. Miller’s commitment to the marriage. Taken in the context of an estate of this magnitude the judgment, whilst heavily nuanced, was not outside the band.
I have had to consider very carefully whether or not Mr. Mostyn’s “nuances” amount to an impermissible re-writing of the judgment, but I have come to the clear conclusion that they do not. On the facts of this particular case, I agree with Mr. Mostyn that the award, whilst undoubtedly high, is “within the band”. I add four short points which, in particular, reinforce my view.
The first point is the house. It would have been open to the judge to give Mrs. Miller a fund to purchase alternative accommodation rather than provide her with a mortgage free property worth £2.3 m. However, this seems to me a discretionary decision by the judge which, if properly reasoned, is one with which this court cannot properly interfere. There are three particular factors which, in my judgment, support the judge’s decision on this point. The first, as Thorpe LJ has pointed out, is that whilst the property is undoubtedly in a fashionable part of London, it is not excessive in size, and has the potential to be used by Mrs. Miller for her business, should she pursue a career in interior design. Secondly, Mr. Miller has chosen for himself and his new family a property worth £6.25 m, also in the same part of London. On that scale, the former matrimonial home appears quite modest. Thirdly, of course, the judge made her give up her half share in the French property, which reduces the value of the house award by £500,000.
My second point relates to the lump sum. Here, the point which strongly influences my perception of the award overall, is the scope of Mr. Miller’s wealth. The judge found that on any view he was worth £17.5 million, leaving out of account the fact that the 200,000 shares in New Star were worth between £12.35 m and £18.11 m. On any view, Mr. Miller is a very rich man. No doubt he has worked hard for, and deserves his wealth. But against the scale of that wealth, a lump sum of £2.7 m and an overall award of £5 m cannot, in my judgment, be said to be excessive or disproportionate.
Thirdly, there is also the point, not to be overlooked, that this is a “clean break”. If, in ten years time Mr. Miller is worth £50 m of £100 m, that will be his wealth to enjoy.
Fourthly, it follows that in my judgment, this is a case in which section 25(2)(a) is an important factor. Mr. Mostyn accepts that there has to be a departure from equality to achieve fairness to Mr. Miller, and whilst I do not, speaking for myself, think that this is a “matrimonial acquest” case, the point on which one alights when departing from equality must be a matter of broad discretion. If equality on a very conservative approach would have been one half of £17.5 m (i.e. ignoring the New Star shares) for the judge to have alighted at £5 m does not seem to me remotely unfair when, on the facts found by the judge, the whole of the section 25 (2) criteria are taken into consideration.
Finally, I would, speaking for myself, advise caution about the use of this, or any other decision, as a template for others. I have been where Mr. Marks stands in this case. Russell LJ began his judgment in Gojkovic with the following words ([1992] Fam. 40 at 49]):
“In his opening submissions to this court, counsel for the husband invited us to lay down guidelines which would, he said, be of assistance to those charged with the responsibility of deciding what, after divorce, is the appropriate level of lump sum payments in cases where very substantial capital assets are available. I do not think that such an exercise is possible. The guidelines already exist. Section 23 of the Matrimonial Causes Act 1973 is the enabling provision for an order for the payment of a lump sum. Section 25, as amended by the Matrimonial and Family Proceedings Act 1984, in terms, requires the court to have regard to all the circumstances of the case and subsection (2), under no less than eight sub-paragraphs, sets out the matters to which the court in particular shall have regard.
In the individual case, some of those matters will assume greater importance than others and, indeed, the facts of this case well illustrate that proposition. In my judgment in this case we are concerned with a wholly exceptional set of circumstances ……”
If those words have a familiar ring, it is because they have been spoken by every judicial generation since section 25 of the MCA 1973 had its first expression as section 5 of the Matrimonial Proceedings and Property Act 1970. I first heard them in the well-known judgment of Ormrod LJ in Martin v. Martin [1978] Fam 12 at 19, which I will not repeat. The consistent message from this court has been that the judge must apply the factors identified in section 25(2) to the facts of the individual case. The House of Lords in White now tells us, and Foster in this court confirms, that the objective is a fair result that avoids discrimination. Proposed outcomes can be tested against the yardstick of equality. These are the guidelines which practitioners and the courts must strive to follow.
For the reasons I have attempted to give, I have come to the conclusion that the judge’s order, examined against these criteria, passes the test. I would, accordingly, dismiss the appeal.
Mrs Justice Black:
I have had the opportunity of reading both judgments and I agree.