XW v XH

Introduction

In October 2008, XW and XH were married in Italy. They did not enter into a bespoke nuptial agreement, but at the wedding they signed a form, headed “Atto di Matrimonio” (which has been translated as meaning “deed of marriage”), stating that they had chosen the separation of goods regime under Italian law (“separazione dei beni”). Prior to the marriage, the parties had lived in England and they continued to do so throughout the marriage, although they also owned properties in other parts of the world.

The wife came from a very wealthy Asian family, and before and during the marriage her mother, who has established a series of family trusts, provided her with substantial financial support. The wife herself had trained as a doctor but subsequently worked as an artist. The husband is a successful businessman. At the date of the marriage, he was a man of considerable means, although the precise value of his assets at that point is a matter of dispute between the parties.

The couple have one child, AB, to whom they are both devoted. Sadly, AB has a rare, life-threatening condition and also has significant disabilities. The vast majority of his care is carried out or arranged by the wife, although the husband also plays an important role. There is no dispute between the parties that AB’s needs will be fully provided for in the years ahead.

During the marriage, and in particular in a period of three or four years between 2011 and 2015, the company of which the husband was chief executive officer (“the company”) became hugely successful, substantially because of the enormous popularity of one product used by millions of people across the world. The value of the business increased dramatically and in 2016 it was sold. The husband’s own shareholding realised about $540m.

Unfortunately, in 2015, the marriage broke down and the parties separated. The wife filed a petition for divorce and an application for financial remedies. That claim has been pursued through to a full hearing before me earlier this year. The parties’ respective positions as set out in open offers are very far apart. The wife seeks, in effect, a half share of the increase in value of the husband’s shareholding in the company during the marriage, which she says should result in a lump sum payment to her of £235m. The husband says that she is not entitled to any part of the proceeds of sale of his shares because the separazione dei bene agreement amounted to a nuptial agreement to which the parties should be held by the court. In the alternative, he contends that the wife’s claim in respect of his shareholding in the company should be rejected, or at least very significantly reduced, for several reasons, in particular (1) because the increase in the value of the shares should be regarded as a unilateral, non-matrimonial asset; (2) because at the date of the marriage there was a latent potential in the company so that its true pre-marital value was higher than reflected in the formal valuation produced in these proceedings; and (3) because the increase in value of the shares during the marriage was attributable to his own special contribution.

The legal complexities in this case are on a scale not often encountered even in the field of so-called big money cases. Admittedly, and fortunately, the litigation has not involved an extended search for the assets. The location and extent of the assets is clear, save in some respects for the assets held in the wife’s family trusts, which, in any event, have only limited relevance to my decision. It is accepted that the wife’s interest in those trusts, whatever it is, does not amount to a matrimonial asset. The husband makes no claim on that interest, and only asserts that it is relevant when assessing the wife’s needs – this being, he argues, a needs case. But the legal arguments arising are complex and challenging, incorporating a number of controversial and difficult issues, including the identification and treatment of nuptial agreements, the distinction between matrimonial and non-matrimonial (or “unilateral”) assets, the valuation of business assets and the treatment of “passive growth” and “latent potential”, and special contribution.

Fortunately, the parties and this court had the advantage of legal representation of the highest quality – Lucy Stone QC and Duncan Brooks, instructed by Stewarts Law, on behalf of the wife, and Martin Pointer QC and Rebecca Carew Pole, instructed by Sears Tooth, on behalf of the husband. I repeat what I said at the conclusion of the hearing – “the efforts which have been expended on behalf of these parties are on any view exceptional, both the quality and the quantity of the work put in by all the lawyers has been outstanding”. But the complexities have been such that the preparation of this judgment has taken much longer than I would have hoped. I apologise to the parties for the delay. Although their means are such that neither of them has suffered financially as a result of the delay, I am conscious that each is anxious to get on with their lives. They will appreciate, however, that the law in this area remains in something of a state of flux, as illustrated by the sheer number of recent cases cited in the course of the hearing. Identifying and reconciling the principles in those cases, and applying them to the facts of this case, has not been straightforward.

In one of the 50+ cases cited to me (Jones v Jones [2011] EWCA Civ 41), Wilson LJ (as he then was), who is, of course, a pre-eminent authority in matrimonial finance law, respectfully criticised the lengthy first-instance judgment under consideration in the Court of Appeal, observing that he refused to accept that our modern principles of ancillary relief are as complex as the judgment implied. I am conscious that this judgment may be open to similar criticism. But I venture to suggest that, in the period of seven years since that case was heard, the law in this area has become even more complex, demonstrated by the significant differences of opinion amongst even specialist judges described below. In other areas of family law, it is possible to reduce the guiding principles derived from case law to a set of propositions which other judges can then apply. The fact that this has not occurred in matrimonial finance law means that there is an unacceptable level of uncertainty, to the great disadvantage of parties, practitioners and judges, which continues to drive the campaign for root and branch reform in this area of the law.

This judgment is arranged in the following sections:

Background

The wife, XW, was born in 1969 to a European father and an Asian mother. She has two sisters, Q and R. In around 1980, when she was about ten years old, the family moved to Asia. Subsequently her parents divorced. The wife came to England for her A-levels and has lived here ever since, but remains close to her mother, who lives in Asia. After school, the wife read for an arts degree at a British university but then decided to switch to medicine, attended medical school and qualified as a doctor in 2000. Shortly after qualifying, however, she gave up practice and started work as an artist. Initially, she had intended this to be only a temporary break from a medical career, but in the event she has not returned to medicine. She was able to do so because she was receiving substantial financial support from her mother. At one point in her evidence, the wife described herself before the marriage as “living the life of Riley”, supported by her mother.

The wife’s mother is from a very wealthy family. She describes herself in her statement filed in these proceedings as coming from “a large dynastic family which has, over the years, enjoyed industrial and financial success.” She has substantial wealth which for a number of years has been held in a series of trusts. The structure of those trusts, and the value of the assets held therein, were the subject of considerable investigation in the course of the proceedings. Amongst the family trusts is one, called the MHT, of which the wife is a discretionary beneficiary. The wife asserts that she has never received any payments from this trust, although it was clearly established in the course of the proceedings that she has received financial support from her mother on occasions before, during and after the marriage. Whether any of the wife’s family assets, either those held in the MHT or elsewhere, are financial resources which the wife has or is likely to have in the foreseeable future, is an issue arising on this application.

The husband, XH, was born in Italy in 1967 and spent his childhood and education in that country. His parents were also divorced. After university, he lived elsewhere in Europe for several years but has lived in England for a number of years. He is the CEO of the company, which is now a subsidiary of the Parent Company. The company is best known as the company which owns a very well known product.

The parties met in 2007 and began a relationship towards the end of that year. It is the wife’s case that the parties lived together in her flat from around the beginning of 2008. The wife asserted in her statement that she and the husband never discussed their respective financial positions. She knew what his job was and that he owned a flat in Kensington. They became engaged in May 2008 and were married in October 2008, in Italy. The wedding ceremony was conducted entirely in Italian. The circumstances of the ceremony have been the subject of intense analysis in these proceedings for reasons set out below. At the ceremony, the parties signed a document in Italian headed “Atto di Matrimonio” (Deed of Marriage) which included a declaration that the parties had chosen the separazione dei beni regime. I consider the terms of this document in detail later in this judgment.

Thereafter, the wife gave birth to the parties’ child, a boy, hereafter referred to as AB. Several years after birth, he was diagnosed as suffering from a rare genetic condition. Thanks to the efforts of his parents, and the many clinicians and therapists involved in his treatment, AB has made very good progress in recent months.

Despite their very considerable differences, which have led to this hotly-contested financial remedies litigation, the parents have largely been able to work together in AB’s interests to ensure that he receives the best possible care and treatment. It was obvious to me, seeing them in court, that they are deeply devoted to their son and anxious to do what they can to help him develop as much as possible. Perhaps inevitably, given the strongly adversarial nature of financial remedy litigation in general, and these proceedings in particular, the respective roles of the parents in the care of AB have become an issue which will require some analysis later in this judgment. In exercising my powers under s.24 of the Matrimonial Causes Act 1973, I must of course give first consideration to AB’s welfare while he is a minor. I shall therefore say more about AB shortly.

During the course of the marriage, the company in which the husband was employed, became spectacularly successful because of a surge in popularity of its products. I set out the history of the business in more detail below. Ultimately, the company went public and was sold in 2015.

Meanwhile, unfortunately, the marriage had broken down. On 11 August 2015, the wife filed a petition for divorce. Decree nisi was pronounced on 23 December 2015 but has not yet been made absolute.

It is unnecessary to set out the history of the proceedings in any detail. Forms E were filed in November 2015, a directions hearing took place in December 2015, and an FDR took place on 20 September 2016. Questionnaires were filed before and after the FDR, and a report was filed from a single joint expert into the valuation of the company. The hearing was listed before me for ten days in June 2017.

The fundamental legal principles

In exercising the court’s powers when making financial remedies orders following divorce proceedings, the starting point is s.25 of the Matrimonial Causes Act 1973. Under s.25(1), the court must have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family, and in particular must have regard to the matters listed in s.25(2) (a) to (h):

“(a)

the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;

(b)

the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c)

the standard of living enjoyed by the family before the breakdown of the marriage;

(d)

the age of each party to the marriage and the duration of the marriage;

(e)

any physical or mental disability of either of the parties to the marriage;

(f)

the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;

(g)

the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;

(h)

… the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.”

It is now well over 40 years since these statutory provisions were introduced. During that period, which has of course seen great social change, the interpretation of these statutory provisions by the courts has evolved. The modern interpretation is governed by two decisions of the House of Lords in White v White [2001] 1 AC 596 (hereafter “White”) and Miller v Miller; McFarlane v McFarlane [2006] 1 FLR 1186 (hereafter “Miller”). Lord Nicholls in White v White [2001] AC 596 at page 605:

“there is one principle of universal application which can be stated with confidence. In seeking to achieve a fair outcome, there is no place for discrimination between husband and wife and their respective roles. …. [W]hatever 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 paragraph (f), relating to the parties’ contributions. This is implicit in the very language of paragraph (f): ‘the contributions which each … has made or is likely … to make to the welfare of the family, including any contribution 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. There should be no bias in favour of the money-earner and against the home-maker and the child-carer.”

For that reason, Lord Nicholls recommended that, when a judge reached the preliminary view that one party should receive a bigger share of the assets than the other, “before reaching a firm conclusion and making an order along these lines, a judge will always be well advised to check his tentative views against the yardstick of equality of division.”

In Miller, Lord Nicholls developed the analysis of fairness as follows (at paragraphs 9 to 16):

“9.

The starting point is surely not controversial. In the search for a fair outcome it is pertinent to have in mind that fairness generates obligations as well as rights. The financial provision made on divorce by one party for the other, still typically the wife, is not in the nature of largesse. It is not a case of ‘taking away’ from one party and ‘giving’ to the other property which ‘belongs’ to the former. The claimant is not a supplicant. Each party to a marriage is entitled to a fair share of the available property. The search is always for what are the requirements of fairness in the particular case.

10.

What, then, in principle, are these requirements? The statute provides that first consideration shall be given to the welfare of the children of the marriage …. Beyond this several elements, or strands are readily discernible. The first is financial needs ….

11.

This element of fairness reflects the fact that to a greater or lesser extent every relationship of marriage gives rise to a relationship of interdependence. The parties share the roles of money-earner, home-maker and child-carer. Mutual dependence begets mutual obligations of support ….

12.

In most cases the search for fairness largely begins and ends at this stage. In most cases the available assets are insufficient to provide adequately for the needs of two homes. The court seeks to stretch modest finite resources so far as possible to meet the parties’ needs ….

13.

Another strand, recognised more explicitly now than formerly, is compensation. This is aimed at redressing any significant prospective economic disparity between the parties arising from the way they conducted their marriage….

….

16.

A third strand is sharing. This ‘equal sharing’ principle derives from the basic concept of equality permeating a marriage as understood today. Marriage, it is often said, is a partnership of equals. …. The parties commit themselves to sharing their lives. They live and work together. When their partnership ends, each is entitled to an equal share of the assets of the partnership, unless there is a good reason to the contrary. Fairness requires no less. But I emphasise the qualifying phrase: ‘unless there is good reason to the contrary’. The yardstick of equality is to be applied as an aid, not a rule.”

Thus in cases where the parties have substantial wealth so that considerations of need are irrelevant, the court starts from the position that the matrimonial assets will be subjected to the “sharing principle” and divided equally between the parties.

As the Court of Appeal recently observed in Work v Gray [2017] EWCA Civ 270 at paragraph 34, “the sharing principle is now firmly embedded and, in those cases where the resources exceed needs, the ‘ordinary consequence’ of its application will be the equal division of matrimonial property.” The principle is, however, subject to a number of exceptions, qualifications or caveats, of which three are relevant here.

First, the principle does not apply where the parties have freely entered into an agreement, with a full appreciation as to its implications, which provides a different disposition of the parties’ assets. In this case, the husband says that the sharing principle does not apply because the parties’ act in executing a separazione dei beni in the course of their marriage ceremony in Italy amounts to a prenuptial agreement to which this court should now give effect.

Secondly, in applying the sharing principle, a distinction is drawn between assets or property that can be classified as matrimonial as opposed to non-matrimonial. In this case, the husband, relying on case law, including the recent decision of the Court of Appeal in Sharp v Sharp [2017] EWCA Civ 408, [2017] 2 FLR 1095, asserts that the assets generated by his business activities in the company, both before and during the marriage, were generated by his efforts and, given the relatively short duration of the marriage, the fact that the wife did not work outside the home during the marriage, and her own substantial wealth, this is plainly a case in which she is not entitled to a share in the value of the company at all. In the alternative, he asserts that a true valuation of the business at the date of the marriage would include a significant uplift to reflect its latent potential realised during the marriage so that any increase in the value of his shares in the business generated during the marriage which might be subject to the sharing principle was consequentially reduced.

Thirdly, case law has provided that in certain cases the contributions of one party during the marriage may be of such a special character to warrant a departure from the sharing principle. In this case, the husband contends that his contribution to the matrimonial assets through his business activities amounted to a “special contribution” so as to warrant just such a departure.

As these three exceptions to the sharing principle all feature prominently in the husband’s argument in this case, it is necessary to consider the relevant case law in some detail. I shall do so when considering those specific aspects of the case below.

The parties’ child, AB

The law requires the court to give first consideration to the welfare while a minor of any child of the family and it is right that I should begin my analysis of the evidence by setting out the position about the parties’ son, AB.

It was plain to me from the responses of the parties when talking about their son that he is the most important thing in their lives and that they are both totally devoted to him. When, during her oral evidence, I asked the wife to tell me about AB, she said (speaking in this instance for the husband as well as herself): “he is a wonderful child … I want everybody to hear how proud we are of him and that we couldn’t be more blessed. I think we are the luckiest parents in the world. He is a superstar.”

The period of uncertainty leading to the diagnosis of his condition, and the struggle to identify and obtain the best programme of treatment and therapy, has unquestionably caused great distress to both of his parents. It is described at length in a long document prepared by the wife and attached to her Form E statement in November 2015. Both parties provided further evidence about this in statements filed subsequently in the proceedings and then in the oral evidence. In addition, I have been provided with a separate bundle of reports from AB’s clinicians and therapists.

At present, there are no urgent medical concerns. [The judge set out details of AB’s treatment].

AB is receiving a wide range of help and support. He is now settled in a school five mornings and one afternoon each week, with a speech therapist in attendance for the mornings together with a learning assistant. The wife says that the school has been an excellent choice and he has become much happier there. On the afternoons when AB is not at school, AB has a range of therapies.

In a statement filed in these proceedings, the wife describes her role in caring for AB both before and after the breakdown of the marriage. It is her case that, in the years leading up to and after AB’s diagnosis in September 2014, there have been literally hundreds of medical assessments and appointments, therapy sessions and meetings about his care and treatment. She attends all of his therapy sessions so that she can continue to practice what the therapist had been doing by bringing it into AB’s play and daily routines. She states that she is also constantly reviewing his therapies and looking out for new approaches and treatments in order to meet his evolving and unpredictable needs, whilst being careful not to “overtherapise” him. She says that her main focus is ensuring that AB feels safe and surrounded by love and support. At present she feels unable to leave him and as a result although she has friends that visit her at home, she does not go out in the evening.

The husband accepts that the wife is an excellent mother who is totally devoted to the well-being of their son. He describes AB as “a son with a genetic condition which has to be carefully monitored [who] is having various therapies to improve his condition. He is in no way a difficult boy – quite the reverse. He is very happy and tremendously enthusiastic. He loves his school, he is leading in most respects a normal life, doing normal things.” The husband says, and the wife acknowledges, that he plays a part in caring for AB. Although the parties have now separated, the husband, when he is in England, continues to visit AB every morning before school and accompanies them on the school run. In the evenings, he spends an hour or so with AB before he goes to bed. At weekends, the couple spend time together as a family for AB’s benefit. The family also continue to go on holiday. The husband maintains that AB benefits because he feels that he is in a very secure environment. So far as their son is concerned, the couple present a united front.

In addition, the husband has devoted substantial sums and time to setting up a research foundation to support research into the condition which is currently funding a drug trial in the US.

A considerable amount of time was spent during the oral evidence of the parties going through the contributions each had made towards AB’s welfare, and what one party had said about the other’s contribution. In particular, Miss Stone in cross-examination sought to demonstrate that the husband had undervalued the wife’s contribution. Looking at his evidence overall, however, I do not consider that he has undervalued that contribution. In oral evidence he described her care of AB as “fantastic” and “amazing”. It is fair to say, however, that their respective contributions toward AB’s welfare have been very different, reflective of their different personalities.

Although s.25 obliges the court to give first consideration to AB’s welfare, no application is made for financial provision for AB. I am totally satisfied that his needs will be adequately met by the parties. To that extent, AB’s welfare is not something that bears directly on the outcome of this case. On the other hand, the fact that the parties have a child, and furthermore a child with special needs, is a material factor when considering some of the arguments below, in particular the husband’s arguments as to unilateral assets and special contribution.

Outline of the assets

Fortunately, in this case there is relatively little dispute about the assets and their value.

The only joint assets are a property in Asia with a net equity of just under £3.7m, which was purchased with funds provided by the husband, and a current account containing about £3,000.

The wife has assets in her own name, consisting principally of two properties in London worth £11.5m gross, purchased with funds provided by her mother. After deducting liabilities, including the sum of £500,000 representing her costs in these proceedings, plus CGT on the properties to the value of c.£400,000, the wife asserts that her net assets amount to approximately £10.5m.

There is, however, an issue as to whether the wife has an interest in a family trust. The husband asserts that she is, in effect, the beneficial owner of the trust, known as the MHT, which has assets worth over £23m. The wife asserts that this is a discretionary trust and she is not beneficially entitled to any of the funds. The trust predated the marriage and therefore, on any view, it does not count as a matrimonial asset which could be subject to the sharing principle. The husband asserts, however, that it is a relevant factor in the case and I consider this issue further below.

Excluding his interest in the company, the husband’s assets prior to the marriage, including properties in London and Germany, and bank accounts, amounted to £3.8m. The husband’s shareholding in the company, and the manner in which it should be treated in these proceedings, is one of the major issues between the parties. On sale of the company in 2015, the husband received $540m, then worth approximately £370m. The proceeds were invested variously in a substantial property in London, trust funds overseas, various other investments and bank accounts, and the husband also received RSUs and stock options in the Parent Company, the company which purchased the company. Through currency fluctuations, the value of many of the assets acquired with the proceeds of sale has increased substantially and are now worth in the region of £500m. With regard to the RSUs and stock options, to which the wife’s representatives ascribe a value of approximately £14m, the husband says that the preponderance of the options are dependent upon his continued employment and performance-related bonuses which he asserts are unlikely to be paid. For that reason, he argues that they should be disregarded. With regard to the husband’s other investments, including the trusts, most of which are held offshore, he contends that he is likely to bring the majority of the funds back to this country where he intends to continue to live and work. As a result, he anticipates that he will incur significant sums by way of tax. He asserts that he is likely to bring back onshore funds to the value of £150m and therefore seeks to deduct a tax liability of £29m for the purposes of these proceedings. On behalf of the wife, however, it is submitted that it is unlikely that he will bring back funds of that magnitude. Instead, it is suggested that a more likely figure is in the region of £50m, giving rise to a tax liability of £10 million.

The parties’ respective positions as to assets in this case can therefore be summarised as follows:

The parties’ positions

The parties’ positions before me were very substantially apart to the tune of over £200 million.

The wife’s open offer seeks the transfer to her of the husband’s beneficial interest in the parties’ jointly-owned property in Asia, and the payment to her of a lump sum of £230m. All other assets and liabilities shall be retained by the parties in their respective names. The sum of £230m represents approximately 50% of the figure of £475m which the wife asserts was accrued during the marriage as a result of the substantial increase in value in the husband’s shareholding in the company.

The husband’s open offer, on the other hand, is to transfer his share of the Asia property to the wife and pay a lump sum of £20m. On behalf of the husband, Mr Pointer QC and Mrs Carew Pole submit that the wife’s claim, and in particular her claim for a lump sum equivalent to a half share of the proceeds of sale of the husband’s shareholding in the company, is fundamentally misconceived for the following reasons:

The wife’s case in response can be summarised as follows:

The wife’s family wealth

As Mr. Pointer confirmed in closing submissions, the husband makes no claim on the wife’s family assets. He does not contend that they should be brought into the pool of matrimonial assets. He asserts that the evidence about these assets is really twofold. First, in so far as this is, as the husband argues, a needs case, the assets owned by the wife are relevant to the issue whether she is able to meet her needs without further financial contribution from him. Secondly, the husband asserts that the evidence given by the wife and her mother is unreliable and that it casts doubt on the wife’s overall credibility.

The MHT was established in 2010. It is a revocable discretionary settlement. The wife’s mother is the Settlor of the trust, and HSBC International Trustee Ltd is the professional trustee. The beneficiaries are the wife’s mother herself, the wife, her children, and associated trusts established for the ultimate benefit of the wife’s two sisters. Under the Deed of Settlement, other persons may be added to the list of beneficiaries from time to time, but this power does not extend to “Excluded Persons”, defined under Schedule IV as including, inter alia, “spouses … of all issue of the Settlor”. The husband is thus an “Excluded Person” under the trust.

The wishes of the Settlor are set out on a “Confidential Memorandum” dated 6 April 2011, completed by an HSBC trust company as administrative assistant for the Trustee. This states inter alia that, during the lifetime of the Settlor, the wife’s mother, the Trustee should “regard her as the primary beneficiary and to benefit her to the extent that she requires from the Trust Fund, but always with the long-term aim that this is intended as a trust for W and her issue”. Provision is made for the unlimited application of the Trust Fund if the Settlor becomes incapacitated. Paragraph 3.4 of the Memorandumcontinues by providing that, subject to those provisions, “the Trustee should consider holding and distributing the trust fund as to both income and capital for the benefit of [the wife] as the Settlor may suggest” and, “in the event of the Settlor’s incapacity and after her death, then as follows, but subject to [the wife’s] wishes, taxation considerations and other criteria set out, as long as they are not to the Settlor’s detriment: up to 50% of the income and capital of the trust upon [the wife] attaining the age of 50; the remaining balance … upon [the wife] attaining the age of 60; other than the above, such reasonable amounts from time to time if [the wife] was able to make a good case to you of a worthwhile acquisition; and respect [the wife’s] wishes if she expresses a wish to you that all or some of the Trust Fund should not be distributed at the ages specified above or at all and how she would like her issue to benefit.” The Memorandum goes on to record the Settlor’s further wishes in the event of the wife dying before the whole of the Trust Fund is distributed. Paragraph 3.12 of the Memorandum adds, however, that “notwithstanding the Settlor’s wishes on distribution at specified age of the relevant beneficiary set out therein, the Trustee should also take into account the following in making distributions to [the wife] and her children or remote issue, amongst any other concerns that you may have: (i) that the Trust Fund of the Trust should be kept in trust to avoid at all possible from being subject to financial settlement in the hands of a beneficiary who is or may potentially be involved in a matrimonial dispute and the relevant beneficiary should be consulted on this ….”

The trust’s financial statements show that the total value of the assets held in the trust were £23.3m as at 31March 2015 and £19.7m as at 31 March 2016, just over £3.5m having been paid out in the course of the year. The wife’s mother’s evidence was that the capital distribution was made for her benefit and she did not pass on any of the sums to her daughter.

The associated trusts referred to above are the RHT and the AHT. The MHT is a named beneficiary of both trusts, in the same way as they are named beneficiaries of the MHT. The wife’s mother has also disclosed the existence of another discretionary trust, the LFT, of which her daughter Q and her husband and descendants are beneficiaries, with the wife and R as contingent beneficiaries if any part of the trust fund is undistributed after termination.

In her statement in these proceedings, the wife’s mother stated:

“it is my prerogative to decide how I manage and ultimately distribute my resources now and following my death. I have been in the very fortunate position of not having to worry about money, raising and educating XW and her two sisters as well as gifting funds and assets to them from time to time at my discretion …. My daughters have no share in the wider family’s wealth and, save for their own properties (which they received from me) they are not independently wealthy. I have always avoided involving them in financial affairs.”

She proceeded in her statement to set out details of the properties she has purchased for the wife’s two sisters.

In her statement, the wife’s mother gave some information about two earlier discretionary trusts. Her daughters, including the wife, were amongst the specified beneficiaries of both trusts but, according to the wife’s mother’s statement, none of the proceeds of either trust were paid to any of her daughters. Both trusts were wound up in 2011. It was the wife’s mother’s evidence, both in her statement and in her oral evidence, that her daughters have had no share in her wider family’s wealth. In her statement, she said that she wanted to support them until they became financially independent, providing they were working hard and doing something worthwhile. To that end, in the eight years prior to the parties’ marriage (2000 to 2008), she gave the wife a total of £964,982 and, in addition, purchased a flat in Knightsbridge for her. In the eight years after the marriage, she gave the wife a total of £389,958, and also funded the purchase, renovation and refurbishment of a substantial property in Bayswater for the parties. Between November 2013 and October 2014, she also paid £485,000 for repairs and renovation work on the Knightsbridge property.

The case advanced on behalf of the wife is that the MHT is of only tangential relevance to the issues in this case. It is only relevant to the extent that the trustees would be likely to advance money to W if she were to ask. The expression of wishes is dated 6 April 2011, when the marriage was happy. It provides that the trustees should treat the wife's mother as the principal beneficiary until her death. Thereafter the wife will receive up to 50% aged 50 and the remainder aged 60 (with the trustees to give effect to any request by the wife for her share to be passed down). Miss Stone and Mr. Brooks observe that the trustees appear to have honoured those wishes thus far and submit that there is no reason for the court to suspect that W will be in a better position now. They further submit that the fact that the wife’s mother has substantial assets of her own is of no relevance. She is under no obligation to support her daughter, and the possibility that the wife may inherit money from her mother at some point is no more than a spes successionis and should not be taken into account by this court: Michael v Michael [1986] 2 FLR 389.

It is submitted on behalf of the wife that what is characterised as the husband’s “intrusive investigation” into the wife’s mother’s wealth was plainly designed to bolster his false assertion that one of the reasons that he entered into the separazione dei beni was to protect the wife’s family wealth. He therefore sought to throw up unfounded suspicion about the trusts to attempt to undermine the wife and the wife’s mother’s credibility in relation to the marital regime. Miss Stone and Mr. Brooks submit that this was both transparent and unsuccessful. They further submit that the evidence clearly demonstrated that the wife did not know anything about the details of her mother’s earlier trusts before the start of the proceedings and had no understanding of how trusts work. They acknowledge that the wife’s mother had been concerned to maintain the privacy of her financial position but draw attention to the full disclosure she had provided.

In response, Mr. Pointer and Mrs Carew Pole invite the court to take a different view of this aspect of the case. It is their case that the wife has been less than frank about her share of family wealth, and that the wife’s mother, far from being open and frank in her approach to disclosure, was a financial sophisticate and a “wily manipulator” whose evidence was designed to be unhelpful. It is the husband’s case that the payments to the wife from her mother which have been made regularly over the last 16 years amount to an “allowance”, and that the wife and her mother have failed to provide a full explanation of the connection between the earlier trusts and the birthstone trusts, or why the wife was excluded from receiving funds from the earlier trusts when they were wound up. They contend that there is a clear correlation between the withdrawals from the MHT between 2011 and 2016 and the payments by the wife’s mother to the wife during the same period. They therefore submit that the trust should be regarded as an asset belonging to the wife.

The MHT is a discretionary trust but the court must, in my judgment, look behind the legal structure to find the realities. The realities here are plain and obvious. The wife’s mother is a woman of very considerable wealth. She has supported all of her children very substantially throughout their lives and continues to do so. For many years, before and during the marriage, she paid substantial sums of money to the wife. In my judgment, the MHT is plainly for the wife’s benefit. Although the wife’s mother is named as the primary beneficiary, the terms of the trust only require the trustee to benefit her to the extent that she requires money from the trust funds, but always with a view to the long-term aim that the trust is intended as a trust for the benefit of the wife and her issue. Having regard to the wife’s mother’s evidence, and her own very substantial wealth, I consider it highly unlikely that she will require money from the trust fund. I therefore conclude that there is a very strong probability that the wife will benefit from the trust fund in its entirety. In terms of s.25(2)(a), it is a resource that she is “likely to have in the foreseeable future”.

In addition, the wife may, of course, inherit substantial sums from her mother in due course but in my judgment that is plainly no more than a spes successionis which must be excluded from my analysis under the decision in Michael v Michael.

– The company history

[The judge set out in detail the history of the company. Those details have been redacted from the published version of the judgment to prevent identification of the family.]

.

Reasons for departing from sharing: (1) pre-nuptial agreement

The law relating to the treatment of nuptial agreements on divorce

The law to be applied in respect of nuptial agreements is derived principally from the decision of the Supreme Court in Radmacher. The basic principle identified by the majority of the Court is set out in paragraph 75 of the judgment of Lord Phillips of Worth Matravers:

“[White] and [Miller] establish that the overriding criterion to be applied in ancillary relief proceedings is that of fairness and identify the three strands of need, compensation and sharing that are relevant to the question of what is fair. If an ante-nuptial agreement deals with those matters in a way that the court might adopt absent such an agreement, there is no problem about giving effect to the agreement. The problem arises where the agreement makes provisions that conflict with what the court would otherwise consider to be the requirements of fairness. The fact of the agreement is capable of altering what is fair. It is an important factor to be weighed in the balance. We would advance the following proposition, to be applied in the case of both ante- and post-nuptial agreements ….

‘The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.’”

The rationale for this proposition is set out by Lord Phillips at paragraph 78:

“The reason why the court should give weight to a nuptial agreement is that there should be respect for individual autonomy. The court should accord respect to the decision of a married couple as to the manner in which their financial affairs should be regulated. It would be paternalistic and patronising to override their agreement simply on the basis of the court knows best. This is particularly true when the parties’ agreement addresses existing circumstances and not merely the contingencies of an uncertain future.”

Lord Phillips on behalf of the majority identified a number of issues to be taken into account when the court is considering whether to give effect to a nuptial agreement. In the context of this case, it is relevant to consider the observations of the Supreme Court concerning three of those issues - “the foreign element”, legal advice and future circumstances.

On the question of “the foreign element”, the Court emphasised that, in divorce proceedings taking place in England and Wales, the applicable law is that of England and Wales. As Lord Phillips observed at paragraph 103:

“In England, when the court exercises its jurisdiction to make an order for financial relief under the Matrimonial Causes Act 1973, it will normally apply English law, irrespective of the domicile the parties, or any foreign connection ….”

As Baroness Hale of Richmond observed at paragraph 181:

“Anyone who chooses to divorce here must be advised that the court will apply English law and not the law of the country which the parties have chosen or with which the marriage has the closest connection.”

On the other hand, as Baroness Hale went on to observe (at paragraphs 182 to 183), the “foreign element” is not totally irrelevant:

“It may be a crystal clear indication that the parties intended their agreement to be legally binding, not only upon themselves, but also the court. On the other hand, a further couple may have been warned …. that their agreement might not have the same effect in other countries as it did in the country where it was made. But it means that their expectations may have been very different. The agreement may also have affected their later behaviour to a greater extent than it would have done had they not regarded it as legally binding …. None of this is to suggest that evidence of foreign law will be necessary in a foreign case. The relevance is not as to the effect of a foreign agreement in English law because, by the time the case gets to the divorce court, it has none. The relevance is as to the parties’ intentions and expectations at the time when they entered into it.”

Secondly, on the question of the relevance of legal advice, Lord Phillips observed (at paragraph 69):

“Sound legal advice is obviously desirable, for this will ensure that a party understands the implications of the agreement, and full disclosure of any assets owned by the other party may be necessary to ensure this. But if it is clear that a party is fully aware of the implications of an ante-nuptial agreement and indifferent to detailed particulars of the other party’s assets, there is no need to accord the agreement reduced weight because he or she is unaware of those particulars. What is important is that each party should have all the information that is material to his or her decision, and that each party should intend that the agreement should govern the financial consequences of the marriage coming to an end.”

Thirdly, on the relevance of future circumstances, Lord Phillips observed (at paragraph 80):

“Where the ante-nuptial agreement attempts to address the contingencies, unknown and often unforeseen, of the couple’s future relationship there is more scope for what happens to them over the years to make it unfair to hold them to their agreement. The circumstances of the parties often change over time in ways or to an extent which either cannot be or simply was not envisaged. The longer the marriage has lasted, the more likely it is that this will be the case.”

At paragraphs 81 to 82, Lord Phillips continued:

“81.

Of the three strands identified in White and Miller, it is the first two, needs and compensation, which can most readily render it unfair to hold the parties to an ante-nuptial agreement. The parties are unlikely to have intended that their ante-nuptial agreement should result, in the event of the marriage breaking up, in one partner being left in a predicament of real need, while the other enjoys a sufficiency or more, as such a result is likely to render it unfair to hold the parties to their agreement. Equally, if the devotion of one partner to looking after the family and the home has left the other free to accumulate wealth, it is likely to be unfair to hold the parties to an agreement that entitles the latter to retain all that he or she has earned.

82.

Where, however, these considerations do not apply and each party is in a position to meet his or her needs, fairness may well not require a departure from their agreement as to the regulation of their financial affairs in the circumstances that have come to pass. Thus it is in relation to the third strand, sharing, that the court will be most likely to make an order in the terms of the nuptial agreement in place of the order that it would otherwise have made.”

Baroness Hale at paragraph 178 observed:

“On the one hand, the sharing principle reflects the egalitarian and non-discriminatory view of marriage … adopted in English law at least since White. On the other hand, respecting the individual autonomy reflects a different kind of equality. In the present state of the law, there can be no hard and fast rules, save to say that it may be fairer to accept the modification of the sharing principle than of the needs and compensation principles.”

Since the Supreme Court’s decision in Radmacher, there has been a number of cases in which the courts have made orders in terms of a nuptial agreement on the basis that the principles identified by the Supreme Court were satisfied. Both parties in this case provided me with helpful schedules summarising those cases. It is unnecessary for me to consider all of them, but it is instructive to consider those cases that involve foreign parties and in particular those involving property regimes in European jurisdictions.

In Z v Z (No.2) Financial Remedy: Marriage Contract) [2011] EWHC 2878 (Fam), [2012] 1 FLR 1100, Moor J considered an application for financial remedies in divorce proceedings between a French couple who, prior to their marriage fourteen years earlier, had signed a marriage contract in France electing the separation de biens regime legally binding under French law. In that case, Moor J found that there was no dispute that the agreement was entered into by both parties freely and with full understanding of its implications (paragraph 45). The agreement had been witnessed by two notaries, although no formal advice was given by either of them, and there had been no formal disclosure. On the facts of that case, Moor J, applying Radmacher, rejected all the arguments put forward that it would not be fair to uphold the agreement in so far as it excluded sharing. The decision in Z v Z (No.2) is therefore support for the proposition that an agreement incorporating the election of a European separation of goods regime can be a nuptial agreement falling within the Radmacher principles. English courts will give effect to such an agreement provided it satisfies those principles.

In B v S (Financial Remedy: Marital Property Regime) [2012] EWHC 265 (Fam), [2012] 2 FLR 502, Mostyn J considered an application for financial remedies in divorce proceedings between a couple who had adopted a matrimonial separation of property regime prior to their marriage in Catalonia fifteen years earlier, in line with Catalan law which had separation of property as its default matrimonial regime, and five years later signed an express separation of property agreement in a different country where the husband had purchased an apartment and given it to the wife. Mostyn J received detailed evidence as to Catalan law to the effect that, on divorce, a court in that jurisdiction may depart from the default position where it would be unjust to implement it, which, as the judge observed, had a “ring of familiarity to an English family lawyer”. On the facts of that case, Mostyn J rejected the husband’s argument that there was a mutual intention that on divorce the parties would be bound by the separation of property regime. He further held, on the facts, that neither party entered into the subsequent agreement with a full appreciation of its implications in the sense described by Lord Phillips in Radmacher. Accordingly, he placed no weight on either the default matrimonial regime or the subsequent agreement in making his financial remedies order.

In the course of his judgment in B v S, Mostyn J observed (at paragraph 5):

“In my judgment there is a marked difference between a negotiated prenuptial agreement which specifically contemplates divorce and which seeks to restrict or influence the exercise of discretion to which the law gives access, and an agreement made in a civil jurisdiction which adopts a particular marital property regime.”

He then quoted at some length from the Law Commission Paper, “Marital Property Agreements” (Law Com no 198). Of the passages cited, it is only necessary for me to re-cite two. First, paragraph 4.6:

“… the vast majority of European countries operate marital property regimes. These share three features. One is that they are systems of rules for the division of property on death, divorce or bankruptcy. That division is equal unless a couple have made it otherwise by contract. Another is that they are not concerned with what is usually referred to in the European context as maintenance, or income provision for spouses and children after divorce. The third is that they all involve the facility for couples to opt for a change of regime, before or after marriage, by contract.”

Secondly, paragraph 5.38:

“The European analogy is flawed … because agreements in those jurisdictions are made against the background of a default matrimonial property regime and operate as a choice to adopt another regime …. In none of these cases is anyone opting out of a discretionary regime and into certainty; instead, they are opting for different sets of rules.”

In the light of those citations, Mostyn J concluded (at paragraph 8):

“It can, therefore, be seen that a civil law matrimonial property agreement is different in character and objective to a ‘common law’ prenuptial agreement which seeks to abrogate or influence the right to invoke the statutory discretion to redistribute fairly (or equitably) all the resources of the spouses following their divorce.”

At paragraph 20, he made this observation:

“In my judgment, the requirement of ‘a full appreciation of its implications’ does not carry with it a requirement to have received specific advice as to the operation of English law on the agreement in question. Otherwise every agreement made at a time when England and Wales was not on the horizon would be discarded. But in order to have influence here it must mean more than having a mere understanding that the agreement would just govern in the country in which it was made the distribution of property in the event of death, bankruptcy or divorce. It must surely mean that the parties intended the agreement to have effect wherever they might be divorced and most particularly were they to be divorced in a jurisdiction that operated a system of discretionary equitable distribution. I have respectfully suggested in Kremen v Agrest (No 11) (Financial Remedy: Non-Disclosure: Post-Nuptial Agreement) [2012] EWHC 45 (Fam) that usually the parties will need to have received legal advice to this effect, and will usually need to have made mutual disclosure.”

In the subsequent case of AH v PH (Scandinavian Marriage Settlement) [2013] EWHC 3873 (Fam), [2014] 2 FLR 251, Moor J agreed with Mostyn J’s observations in B v S at paragraph 20 that, to have effect, the parties must have intended the agreement to apply wherever they might be divorced and, in particular, if they were divorced in a regime that operated a system of discretionary equitable distribution. In the light of that, Moor J observed (at paragraph 53) that it was undoubtedly wise for the other party’s adviser to insert a clause dealing with this in the agreement. At paragraph 54, however, he observed that:

“… even where it is not fair to hold a party to an agreement, it may be that it is right to pay some regard to the agreement. I say this as I am not dealing here with strict contract law. I am applying s.25 of the MCA 1973 which requires me to consider ‘all the circumstances of the case’. The existence of the marriage settlement is undoubtedly one of the circumstances of this case.”

On the facts of that case, it was clear that the wife did not have a full appreciation of the implications of the marriage settlement, but the judge did take into account the intentions of the parties with the end of the settlement, namely to protect the husband’s inherited wealth and meet the wife’s housing needs.

In Y v Y (Financial Remedy: Marriage Contract) [2014] EWHC 2920 (Fam), Roberts J considered an application for financial remedies in divorce proceedings between a French couple who, prior to their wedding twenty-two years earlier, had entered into a marriage contract electing a separation de biens regime. After a detailed and careful analysis of the circumstances in which the contract had been entered into, the judge concluded that the wife had a full appreciation of the fact that the marital regime they had elected was intended to govern how they would arrange their financial affairs during the marriage, but rejected the husband’s argument that she had a full appreciation and understanding of its intended effect on death or divorce (paragraph 67 (xiii) and (xiv)). Roberts J recognised (at paragraph 72) that it is perfectly possible that the election of a marital property regime can (in an appropriate case) impact upon the division of a marital estate but, on the facts of that case, concluded (at paragraph 109) that, in the light of the findings, it was impossible to say that, at the time she signed the marriage contract, the wife had all the information which was likely to have been material to a decision and/or that she intended that the agreement should govern the financial consequences of the marriage coming to an end.

At paragraph 110 of her judgment, Roberts J observed:

“ … I find it difficult to see how ‘a full appreciation of [an agreement’s] implications’ (per Radmacher) will not, in almost every case, involve both a full understanding of the part of both parties as to (i) the nature and effect of the terms, and (ii) of the circumstances in which its implementation in a jurisdiction other than that in which it is made will, or might, affect the scope of any legal award or remedy which otherwise [would] be available to one of the parties in the event of divorce. That does not mean that parties will need to seek advice on all possible permutations; such a result would be plainly absurd. But, to the extent that the intention is that sharing or community of property is to be excluded both during the subsistence of the marriage and at its dissolution, I respectfully share the view expressed by Mostyn J (and adopted by Moor J in AH v PH). In order to gain traction or influence here, the parties must surely have intended at the time of the agreement that its terms would apply in the event of a subsequent divorce wherever that divorce took place and whether or not it was anchored to a jurisdiction which operated a system of discretionary equitable distribution.”

The deed of marriage

A copy of the atto di matrimonio, the deed of marriage signed by the parties at the conclusion of the wedding ceremony, has been produced and translated. It identifies the date; the celebrant; the location; the parties and the witnesses. With regard to the matrimonial property regime, the deed, which is in a standard form, states as follows (in translation):

“I have interrogated both parties according to canonic rules in the presence of said witnesses and having ascertained their consent I joined them as spouses according to the Church procedure. After that in the presence of said witnesses, I read articles 143, 144 and 147 of the civil code regarding rights and obligations of spouses. I then filed the Deed of Marriage in two original copies one of which is filed in this church and the other is sent to the Italian city Municipality to be registered.

The spouse [sic] in the presence of said witnesses have declared

SEPARATION OF ASSETS: yes ‘we choose the regime of separation of assets pursuant to art 162, paragraph 2 of the civil code’.”

On the Italian document itself, the word “si” is written in manuscript and the Italian words for ‘we choose the regime of separation of assets pursuant to art 162, paragraph 2 of the civil code’ (which are not completely legible on the copy in my bundle) were plainly inserted by a stamp. The deed finally contains the signatures of the parties, their witnesses and the Celebrant .

On receipt of the deed of marriage, the civil registrar noted and transcribed the entry in the civil register. According to the translation produced for the proceedings, the entry recorded inter alia: “by declaration made in the countersigned entry of marriage, the husband and wife chose the regime of separation of property ….”

Separazione dei beni: the evidence of the parties

The wife states that the first and only time that the husband spoke to her about a marital property regime was a short conversation one evening in the early summer of 2008 in her flat. She says that the husband told her that, when people are married in Italy, they have to choose between pooling their assets or keeping them separate. She says that he told her that most people opt to keep things separate as it was the easiest and he suggested that they should do this too. She said that she agreed. She added: “it was the briefest of conversations. It did not seem important at the time either to me or, I thought, to XH.” She states that the husband did not explain to her the effect of choosing to keep assets separate. He did not explain which assets would be covered, nor did he disclose all the assets that he had. She was under the impression that it meant that her flat would continue to belong to her and that he would keep his properties. She added: “I did not think, and certainly did not know, that it would apply to assets acquired during the marriage or that it would have any relevance if there was a divorce. The prospect of divorce, in the happy days of planning our marriage, did not ever enter my mind. This topic was never discussed between us again until XH raised it after these proceedings had begun.”

The wife further stated that her husband never suggested to her that she should consult a lawyer either in Italy or London. In oral evidence, in answer to a question from me as to why she did not see a lawyer, the wife replied: “there didn’t seem to be any need for it. The way he told me about it, it all seemed so very simple and straightforward, not a big deal.” She said that she never thought about the husband’s shares in the company at the time of this conversation. In cross-examination she said they did not talk about whether it applied to property they might acquire later.

“Mr Pointer: So you just closed your mind to any other potential consequences, is that right?

Wife: I didn’t think – yes. Not didn’t close my mind, didn’t open my mind. I didn’t think about it. We didn’t talk about it. He didn’t say there were legal consequences or that he had spoken to a lawyer who explained what it meant. He didn’t say I should go and find out what it means. He didn’t say anything like that. It sounded very unimportant, it seemed, insignificant.

Mr. Pointer: What did you think it was other than legal consequences?

Wife: Something that you have to do it in Italy when you get married, that’s how he presented it to me.”

The husband wanted a church wedding in Italy. The wife’s evidence was that, although it would not have been her choice, she agreed as she knew it would make the husband and his father happy. In June 2008, the parties went to Italy for the first of several visits looking at possible venues for the wedding and reception. After visiting a number of churches, they settled on a church (“the Church”). They met the resident priest, Father G. He spoke no English and, in every conversation he had with the couple, the husband had to translate for the wife. The wife has an O-level in Italian but says that she speaks very little of the language. Prior to meeting the husband, she says that she was able to recall a few polite phrases and “could navigate my way round a menu in an Italian restaurant.” After starting a relationship with the husband, whenever she met his parents, who could speak no English, she was dependent upon the husband to translate.

The wife’s evidence is that they returned to Italy on a number of occasions prior to the wedding in order to finalise the arrangements, and that all conversations involving music, flowers, catering and other arrangements were conducted in Italian with the husband translating for her when necessary. The wife says that they visited the Church on about seven occasions prior to the wedding. It is her evidence that Father G was there on most of their visits and that other than exchanging the briefest greetings, she was unable to speak to him either in Italian or English. All of the conversations between Father G and the husband were in Italian. It was agreed that the wedding would be conducted by a celebrant , who was an old friend of the husband’s father. The wife says that she met him only once before the wedding, at a meeting at the Vatican on 21 September. The Celebrant did not speak to her in English.

In her statement, the wife stated: “as far as I am aware, at no time before the wedding when we were with Father G did the topic of electing a marital regime come up”. In her oral evidence, the wife was shown a short video clip taken, I understand, by her mother, of one of the visits to the Church during which there are images of the couple talking to Father G. During the conversation, they appear to be discussing a document. In cross-examination, the wife described sitting at a desk with Father G at one of the meetings, but did not remember him completing the atto di matrimonio form during the conversation. She said she could not recall seeing Father G put the word “si” on the form, nor did she remember him administering the stamp next to it. She was cross examined extensively on this matter. At times, she said that she did not remember, at other times that it did not happen. Mr Pointer described evidence on this topic as drifting between non-recollection and denial. Ultimately, her evidence was that, as far as she was aware, “there was no conversation about the separation of goods, no distinction between the two regimes or what would happen in the event of divorce”.

The wife gives a description of the wedding day itself in her statement. She says that she had practised saying her vows in Italian for a few weeks beforehand and, as a result, she was able to speak them while reading them from a book held out in front of her. The wedding service was conducted in Italian. No translator was present. The wife’s evidence was that no one had suggested to her it was usually necessary to have a translator present. In her statement she added: “of course I knew I was agreeing to marry XH , but I did not understand anything else that was said at all during the ceremony”. At the conclusion of the ceremony, she and the husband signed what she says she assumed to be the wedding register. It is her case that, until documents were produced in the course of these proceedings, she was unaware that what she had signed included an election for the regime of separazione dei beni.

The husband’s evidence on this issue is significantly different. In his statement, he asserted that by the time of the marriage the wife had become sufficiently well-versed in Italian; she could understand the conversation in Italian and read an Italian newspaper. He accepted that he translated where necessary but asserts that this became less and less frequent. He stated that, contrary to her evidence, the wife was able to conduct conversations about the arrangements for the wedding. Although he accepted that her speaking knowledge of the Italian language was not then as good as it is now, it was incorrect for her to suggest that she understood absolutely nothing of the language at the time of the wedding. He also asserted that, contrary to the wife’s evidence, they each knew a reasonable amount about the other’s financial circumstances. It is his case that, at the date of the marriage, the wife and her family were far richer than he.

The husband’s case on the separation of goods regime is set out at paragraph 10 of his statement:

“The first time we discussed the separation of goods was three or four months before the wedding in the early summer of 2008 in XW’s flat …. I remember it was in fact in the drawing room and it was not a short conversation. I remember the moment well since I was very anxious. It was an important matter for me that I could show XW and her mother that I was not marrying for the purpose of entering into a wealthy family. I wanted the separation of goods regime, where XW’s assets were to be kept separate from mine, to ensure that XW and her family always kept their own wealth and I would not be part of it. Equally I wanted to keep separate from her assets any future wealth which I created from my own shareholding in the company (which I had worked so hard to build up), albeit I never anticipated that it would be anything compared to the wealth of XW and her family. I had been preparing this conversation for some time beforehand. I had discussed the question of separation of goods with my father who had introduced me to a lawyer, Mrs C, with whom I had had two phone calls, one shortly before my meeting with XW . I repeated to XW what she had advised, namely that there were two regimes under Italian law, community and separation of goods. The community of goods was the default regime whereby each party owned what they had before the marriage but after the marriage or assets thereafter acquired would be owned jointly. In the separation of goods regime, the assets of each party would always be kept separate, and each party kept their own assets not just before the marriage but thereafter and they would always be kept separate. In the early summer of 2008 in XW’s flat in London, I explained to XW the difference between the two regimes as I had written down from my previous discussion with Mrs C, and that I wanted, for both our sakes, the separation of goods regime. At the end of my explanation I told XW the way it works is very simple: both before and after the wedding, what is hers always stays hers and what is mine always stays mine. I also told her that despite the community of goods being the default regime many couples would choose separation of goods. She said she fully understood and was in agreement with this and it was the right choice. Therefore there was no need to have any further discussion with XW directly on this topic, nor did XW raise any question nor ask to have further information on this matter. XW was always very focused on detail and she always researched every aspect of the ceremony. Thus I was sure she had understood and was in full agreement with the choice. There was no need for doubt about this.”

The husband further asserted in his statement that, before getting married, he also informed the wife’s mother of their decision to elect the separation of goods regime. He stated that he believed they were in the kitchen in the wife’s flat when he told her mother about this. He wanted to let her know that he was not after her family’s wealth, but was surprised when she made no comment. He now ascribes her lack of comment to the fact that she had already structured her family wealth in a way that achieved a separation of goods.

In his statement, the husband gave a different account of the meetings the couple held with Father G prior to the wedding. In particular, it is the husband’s case that Father G specifically required them to attend a meeting on 11 October 2008 in order to explain the procedure under Italian law, ensure that all relevant documents were prepared, and to ascertain the intention of each of the parties about the choice of the matrimonial regime. During the meeting, Father G explained the difference between community of property and separation of goods, and the husband translated what he was saying. It is the husband’s case that during the discussion the priest pointed out that, if they chose separation of goods, what each owned before and acquired during the marriage would remain that person’s property even if they separated. In his statement, the husband further asserted that following this explanation, he and the wife stated that they had elected the separation of goods regime and the priest then wrote the word “Si” on the agreement.

The husband’s statement also gives a different account of the events during the wedding ceremony, and in particular at the end, when the Celebrant read the legal clauses prescribed by the Italian law, asked for confirmation that they had chosen the separation of goods regime, and directed the couple to sign the wedding agreement. It is the husband’s case that, although the wedding was conducted in Italian, the wife understood what was going on; that he translated to her what they were signing, including the confirmation of the separation of goods; that both parties confirmed that they had chosen that regime, and signed the marriage document twice in the presence of the witnesses.

The husband’s case is that during the marriage he and the wife have conducted family life and financial arrangements consistently with the separation of goods regime, with separate bank accounts and no assets in joint names, save that he added the wife’s name to his current account to pay for routine expenses and put a property that he purchased in Asia into joint names at the wife’s suggestion because, as she is an Asian resident, such an arrangement would save tax. On this point, the wife asserts that there was no set “regime” or arrangement. It is her case that, during the period of their cohabitation prior to the wedding, and during the marriage, the household expenditure fell into a spontaneous pattern with which both of them were comfortable and about which they never needed to have any discussion.

In his statement, the husband further asserted that the wife had changed her story about her understanding of the separation of goods regime. He stated that in 2015 she told him that she knew at all times what it meant but did not think it was legal because no lawyer had been present, but in a more recent conversation she said that she thought the regime only applied to assets acquired before marriage. It is his case that there is no doubt that she fully understood the meaning of separation of goods. His statement concluded by observing that

“XW is highly intelligent and well-educated including obtaining a degree. She came from a sophisticated and affluent background. I have not the slightest doubt that XW knew and understood exactly what separation of goods meant not only from the conversation that I had but also it having been explained by Father G and we both signed the marriage document which included the separation of goods at the wedding with full knowledge of the consequences. It was made quite clear that all XW’s assets acquired before the marriage and after marriage were always going to be hers and the same in relation to mine and that occurred even if we separated.”

In cross-examination by Miss Stone, the husband agreed that in his conversation with the wife in her flat in June 2008 there was no mention of what would happen in the event of a divorce. His evidence was that it was “very clear because otherwise there would have been no reason for keeping the assets separate”. I asked him whether he knew what the effect of the separation of goods was under English law in 2008. He replied:

“you see I’m not a lawyer, so when we took this decision I had no idea and XW I guess also had no idea that the Italian law does not apply here. I thought that … by having an agreement signed in Italy with this law, this would apply anywhere. I had no clue that this would not be the case, otherwise I would of course have gone to an English lawyer and we would of course have done English whatever, prenup or whatever agreement.”

Father G’s evidence

Father G provided a statement in these proceedings and at the hearing gave evidence by videolink. He said that he remembered the wedding because it was celebrated by the Celebrant. He described his general practice of compiling the marriage document in a meeting with the couple before the ceremony. He explained that it is a requirement that he sees the couple and goes through the details. In his statement he said it was “also very important I write down the choice of patrimonial regime. That is to say under which regime they wish to marry….Under Italian law spouses have to decide at the time of marriage if they want a community of goods for ownership to be shared from the day of the marriage or separation of property arrangement under which each spouse always maintains exclusive ownership of all property owned before and after marriage is celebrated and which remains the same if the parties separate …. I have to be absolutely sure that each future spouse understood what I said during these meetings, including about the patrimonial regime. If both future spouses are Italian there is no problem, but if one party is not I have to ensure that the non-speaking Italian future spouse fully understands what I am saying because he or she must confirm to me that they have understood. If I am not satisfied, if the parties cannot agree, or if they choose the community of goods regime, I leave the space blank.” Although he has celebrated many weddings with foreigners, Father G stated that he has never used an interpreter, because he makes it clear that there must be a friend or family member who can translate what he says.

In his statement, Father G gave the following account of his conversation with the parties: “XH translated what I said to XW. I was fully satisfied she understood. Both parties said the word “si” meaning “yes”. Thus I then wrote out in front of them on the marriage agreement the word “si” as to the declaration of separation of property and affixed the stamp that they chose the system of separation in their ownership of property under the provisions of article 162, second paragraph of the Civil Code. This is the stamp I always use.”

At the outset of his oral evidence, however, Father G corrected his account of when the stamp been affixed to the document. He said that, although he had written the word “si” during the meeting, the stamp had only been put on the document on the day of the marriage itself. His reason for doing this is because sometimes the parties change their minds. He reiterated that during his conversation he had spoken about the regime of separation of assets and the husband had translated his words to the wife. He added: “it was not a long speech, but it was explained to her concisely”. Later in his evidence, he said that the husband had done a short translation of what he said to her. Asked whether he was sure that the husband had spoken to the wife about the separation of goods in English, Father G said that he thought so, although he could not be sure as he does not know English.

In the course of cross-examination, the following exchange took place:

“Miss Stone: Father G, you would not be in a position, would you, to tell somebody who is not Italian whether the patrimonial regime would be binding in a foreign country?

Witness (through an interpreter): No, I’m not a legal expert. I do not know the laws of the other countries.

Miss Stone: And when you talk to the parties about the patrimonial regime, do you discuss divorce with them?

Witness: Not so much. I’m not in a position to enter into the details and I think that if they decide to marry in Italy they should accept the laws and the rules that are binding here anyway. So I believe that when they marry in Italy they have to accept the rules and the legislation of Italy.

Judge: Can I ask you this: do you – what do you understand the difference to be between separation and community of goods?

Witness: In the case of the community of assets, those assets that come after the marriage become a sort of common patrimony, let’s say of the two spouses and the separation of assets obviously governs – after the marriage these assets remain separated ‘what is mine is mine and what is yours is yours’, just to summarise it in very simple terms.

Judge: And … how long does this continue, separation or community?

Witness: For the whole life. For the whole life

Judge: What’s your understanding of this: if the marriage comes to an end, does it continue?

Witness: Obviously if there is a divorce, if the marriage ends that’s okay, it doesn’t continue.

Judge: Say that again please.

Interpreter: I beg your pardon?

Judge: Could you repeat what you just said?

Interpreter: Obviously he agrees with you, if the marriage is put to an end, if there is a divorce obviously this is no longer valid.

Judge: I wasn’t asserting something. I was asking a question. Does Father G understand it to continue after divorce or not?

Witness: No, not after the divorce.”

Mr Pointer very properly returned to this point in re-examination:

“Mr Pointer: Father G, you explained in answer either to Miss Stone or to the judge that the separation of goods agreement is something that continues with the whole of the lives of the two spouses, is that correct?

Witness: Yes, when they lived together, when they are not separated, yes.

Judge: My question was his understanding.

Mr Pointer: Is that something you explained to the spouses at the meeting you had with [them]?

Witness: Yes, I explained this. I think it is quite logical that this lasts until the end – until the death, yes. This applies to the regime as it applies to the marriage.

Mr Pointer: If the spouses were to separate, what would happen to the regime of separation of goods or the regime of community of goods?

Witness: They address to lawyers, they resort to lawyers in order to settle these issues. This is something that no longer pertains to the church. This is something that is regulated before divorce by lawyers. They have this deed of marriage and they use it in order to settle the matter with the help of lawyers.

Mr Pointer: Is this something that you explained to XH and XW in 2008?

Witness: Yes, I explained - yes it was a brief explanation but I explained this to XW and XH and, as I said, XH also translated what I said to XW .

Mr Pointer: My question was about divorce. Is there any real difference – sorry my question was about separation. Is there any real difference between separation and divorce from your perspective?

Witness: No, I just explain the difference between separation of assets and community of assets. I do not enter into the technical [inaudible] I do not enter into the divorce, what happens if they divorce. It’s not my competence to do so.”

Other evidence about the wedding ceremony

The parties filed statements from four friends who attended the ceremony and acted as witnesses, two on behalf of the wife, two for the husband. I was also invited to view a number of video clips showing events leading up to the ceremony and parts of the ceremony itself. Ultimately, however, I did not find any of this evidence particularly enlightening on the issue. Neither of the wife’s witnesses speak Italian and neither noted anything of relevance to the issue of the separazione dei beni. Both of them assert that they are confident that, if the wife was aware of the importance of the election of a property regime, she would have raised it with them. One of the husband’s witnesses, the best man, does not speak Italian, although his evidence was that the husband was speaking to the wife during the ceremony and it seemed obvious that he was translating what was being said. In oral evidence, the best man spoke of a short conversation he had with the husband the night before the wedding as to what would happen during the ceremony, during which the husband referred briefly to the separation of goods agreement. The husband’s second witness is Italian and has attended a number of Italian weddings in church. In his statement, he said that he heard the Celebrant reading out the articles of the Italian Civil Code and referring to the separation of goods regime. The witness saw the husband speaking to the wife but could not hear what he was saying. In one of the video clips, it is plain, as was pointed out in cross examination, that the husband’s two witnesses were talking to each other at one point in the ceremony when documents were being signed by the parties. The video clips do show the husband talking to the wife during the ceremony but I was unable to discern exactly what he was saying.

The wife’s mother’s evidence on the marriage deed

In her statement, the wife’s mother said that she recalled the wife stating during a telephone conversation after the husband had proposed marriage that he had said that they should go for “separation of goods” adding “as most people do in Italy”. The wife’s mother added that the wife had:

“said it as a matter of fact, that it was not of any significance, it was just one of the things XH had said, and I did not think of what the separation of goods was referring to, nor did I think of asking her … I thought nothing more of it and did not for a moment think that it might have legal consequences in the event of a divorce. Indeed I had not contemplated the possibility of a divorce at all. Had I known that XH had been taking legal advice, I would have insisted that XW took independent legal advice in a language she understood.”

After the wedding, XW sent to her mother, apparently for safekeeping, a document headed “ESTRATTO PER RIASSUNTO dal Registro degli atti di MATRIMONIO” (which has been translated as “MARRIAGE CERTIFICATE EXTRACT”). Some years later in May 2013, asked by her lawyer Nick Jacob whether XW had a nuptial agreement in place, the wife’s mother replied that she did not believe that they had any such agreement. Her statement continued: “however during the discussion, I recalled that I had what I thought was the Italian marriage certificate. Nick Jacob suggested that I look into it further to make sure that my understanding was correct. I therefore arranged for a translation. A quick glance at just the heading of the translation confirmed my understanding that it was a marriage certificate, and I therefore filed the document away without considering the rest of the translation further.”

The translation includes the following “MARGINAL NOTES: With a declaration made in the marriage certificate signed by both parties, the married couple chose a separate ownership of assets during marriage”. But the wife’s mother’s evidence was that she never read further into the translation and therefore never saw this marginal note. She was cross-examined about this at length by Mr Pointer but maintained her account.

Expert evidence on Italian law

In order to address various issues of Italian law, the court has been provided with the expert opinion of three Italian lawyers – Avvocato Francesca Mele, Avvocato Roberta Ceschini, and Avvocato Andrea Russo. Avv. Mele, who was originally instructed as the single joint expert in these proceedings, is based in Milan and has specialised in family law for thirteen years. Avv Ceschini, who was instructed on behalf of the wife, practices in Rome and has specialised in family law for over twenty years. Avv Russo, who was instructed on behalf of the husband, is also based in Rome and has been practising in private international law for over thirty years. The three experts all provided written reports and gave oral evidence during the hearing. The court is extremely grateful to them for their assistance.

All three were asked to address a number of issues and their answers were summarised in a schedule of points of agreement and disagreement. They agreed that, when celebrating a marriage in church, a priest in Italy is a public official who is required to perform various civil functions. They also agreed that the atto di matrimonio is a public deed and is fully valid provided that the act of marriage is registered in the state civil registry and the banns of marriage have been previously published at the municipal office. They further agree that the marriage remains fully valid and effective unless and until a claim for forgery (“querela di falso”) is established in the Italian courts. They disagree about three principal issues: (1) the extent to which a priest while celebrating a marriage is subject to the obligations imposed by the civil code; (2) whether a priest celebrating the marriage is obliged to arrange for an interpreter to translate all or part of the proceedings to a non-Italian speaking party and, if so, the consequences if no interpreter is present; (3) whether the election of the separazione dei beni regime amounted to an implied agreement that the property relations between the spouses are to be governed by Italian law. Of these, it is the last issue which carries the greatest significance in this case.

The parties’ marriage in church was a “Concordat” marriage governed by Italian Law 847/1929, for the implementation of the Concordaro Lateranense of 11 February 1929 between Italy and the Holy See (the “Concordat”), and by the Accordo di midificazione del Concordaro Lateranense con la Sante Sede signed on 18 February 1984 and its additional protocol, ratified by Italian Law 121/1985 (the “Accordo”). Article 8 of the Accordo provides:

“Civil effects shall be recognised for marriages contracted according to the norms of canon law, provided that the act of marriage is transcribed in the Stato Civile registry, and the notices of marriage have been previously published at the communal offices. Immediately after the ceremony, the priest or his delegate shall explain the civil effects of the marriage to the parties, by reading the articles of the Civil Code concerning the rights and duties of married people and he shall thereafter draw up, in original duplicate, the certificate of marriage, in which the spouses’ declarations permitted by civil law may be inserted.”

The relevant provisions of the civil Italian law are as follows. Article 159 of the Italian Civil Code provides:

“Legal patrimonial system between the spouses. In the absence of a different agreement made pursuant to Article 162, the legal patrimonial system of the family is common ownership of property ….”

Article 162 provides inter-alia:

“Form of marriage agreements. Marriage agreements shall be stipulated by public act, under penalty of nullity.

The choice of a system of separation of property can be declared also in the record of celebration of the marriage.

The agreements can be stipulated at any time, subject to the provisions of Article 194.

Marriage agreements cannot be set up against third parties when the date of the contract, the name of the notary by whom it was drawn up and the particulars of the contracting parties, or the choice referred to in the second paragraph, are not annotated in the margin of the marriage record.”

Articles 29 and 30 of Law 218/95 provide:

“Article 29 (Personal relations between spouses)

I consider first the expert evidence concerning the first two questions identified above. Avv Mele identified what she described as a crucial distinction between a priest celebrating a marriage in church and an ufficiale dello stato civile celebrating a civil marriage (roughly the equivalent of a registrar in a registry office in this jurisdiction). Although the priest acts as a public official, it was Avv Mele’s opinion that he does not fulfil the functions, nor have all the obligations, of the ufficiale dello stato civile. In the case of a civil marriage conducted by that official, the law as set out above requires the presence of an interpreter, or the use of some other method, where one of the spouses does not speak Italian. It was Avv Mele’s evidence that no such requirement was imposed on a priest. Avv Russo agreed with Avv Mele, but Avv Ceschini demurred. In her opinion, the priest is acting as a public official when celebrating a Concordat marriage and, as such, is required to comply with all the same formal requirements, including requiring an interpreter where one or both of the parties does not speak Italian.

Avv Mele and Avv Russo were of the view that, even if the absence of a translator was an irregularity, it would not by itself affect the validity of the marriage, provided the atto di matrimonio accurately recorded what happened at the ceremony. In Avv Ceschini’s opinion, the absence of an interpreter meant that the atto di matrimonio could be declared null and void if challenged using the querelo di falso process although, unless and until it was successfully challenged, the marriage deed remained valid.

I now consider the expert evidence on the more substantive issue – whether the election of the separazione dei beni regime amounted to an implied agreement that the property relations between the spouses are to be governed by Italian law.

Avv Mele’s opinion was that, when the spouses elected the separazione dei beni regime, it was an implied term of their agreement that the property relations between them would be governed by Italian law. She accepted that there was no reported authority to indicate whether or not the agreement contained such an implied term. She supported her interpretation by reference to the terms of the declaration stamped on the atto - in translation, “we choose the regime of separation of assets pursuant to article 162, paragraph 2 of the Civil Code.” In Avv Mele’s view, the fact that the declaration was expressed as an election of separation of goods under the Italian code, rather than separation of goods generally, indicated an implied choice of Italian law.

Avv Ceschini disagreed. It was her opinion that the election of a marital property regime and the choice of law were different and had to be done separately. When there is an election of marital property regime with no choice of law, the applicable law is determined by the Italian conflicts law set out in Articles 29 and 30 of Law 218/95. As she observed in cross-examination by Mr Pointer, “the election of the marital regime and the choice of law is to be done separately and, if it is not done, it is determined by the law not by implication.” It was her opinion that the phrase “pursuant to Article 162, paragraph 2 of the Civil Code” in the declaration stamped on the atto indicated that the declaration was being made in a manner permitted by that paragraph (“the choice of a system of separation of property can be declared also in the record of celebration of the marriage”) and did not indicate anything about the choice of law.

Avv Russo agreed substantially with Avv Mele. It was his opinion that the reference in the declaration stamped on the atto “cannot imply anything else than the choice of Italian law as the governing law of the patrimonial relationship. It is not a reference to an unspecified separation of assets. It is making - they are making - reference to a typical separation of assets envisaged by our Civil Code”. He acknowledged that there was no precedent to assist in this interpretation but considered his opinion to be “consistent with the good-faith interpretation of the statement of the parties and in contract”. When I suggested to him that the wording on the declaration stamped on the atto might refer to the formality rather than the substance of the agreement, he replied that he thought it referred to both.

In their evidence on this issue, the experts also refer to changes in the form of the atto di matrimonio introduced in 2011. Prior to that date, the form had provided space for the parties to declare whether they wished to elect the separazione dei beni regime, but there was no box on the form for, or any reference to, the choice of law. The new form introduced in 2011, in addition to requiring the parties to declare whether they elected the separazione dei beni regime, also provides scope for the parties to declare their choice of law applicable to property relations between them (where one of the spouses is a foreign citizen or resident abroad). The reason for this change is explained in a circular from the Italian Department for Internal and Territorial Affairs which as translated for this court reads as follows:

“The undersigned Central Directorate receive notifications regarding the difficulties encountered by some registrars, as well as by private citizens, in relation to the indication of the property regime applicable to spouses in the presence of at least one foreign party intending to marry pursuant to the provision referred to in Article 30 of the Law 218/95, in the case of religious marriages with civil effects (marriage governed by Concordat).

In this regard it is noted that this Ministry, through the Ministry of Foreign Affairs, has involved the Apostolic Nunciature in Italy for a change to the current templates for requesting the registration of marriages regulated by the Concordat, with the aim of adopting new forms which show the choice made by the spouses also with reference to the law which said parties intended to apply to their property relations.

As a result of this request, it is acknowledged that the Holy See shall make the desired changes to the template for requesting the registration of marriages with the civil effects regulated by the Concordat, so as to allow those intending to marry the possibility of indicating, at the time of marriage, the foreign law applicable to their property relations, as set out by the referenced Article 30 of Law 218/95. This choice shall be duly noted pursuant to Article 69 letter (b) of Presidential Decree No 396/2000, as already occurs for civil marriages, and this will also allow parties, including those who marry in a ceremony regulated by the Concordat, to avoid further tasks, including onerous ones, in order to exercise their own right as regards the possible property choice.”

All the experts who gave evidence before me agreed that this change in the form did not encompass any change in the law. Avv Mele and Avv Russo did not consider that this change in the form undermined their interpretation that a declaration recorded on the atto that the parties elected the separazione dei beni regime included an implied agreement that their property relations would be covered by Italian law. Avv Ceschini, however, expressed the view that this change, and the explanation for it set out in the circular, supported her interpretation that the election of the separazione dei beni regime was separate from any agreement as to the choice of law.

In the course of their oral evidence, all three experts indicated that, if asked to advise an Italian client who was proposing to marry a non-Italian under a separation of goods regime as to whether that regime would bind him and his fiancée if they later divorced in England, they would advise the client to take further steps. Avv Mele stated that “just to be as sure as possible - I mean that the choice of law and the choice of the separation of assets regime would be binding for the marriage, I will probably advise him to draft an agreement … before a Notary Public in which they both chose the Italian law and, within the Italian law, the separation of assets agreement.” She further agreed that, to be more confident, she would probably also ask for the opinion of an English lawyer as to whether the agreement would be binding if the parties were subsequently to get divorced in England. Avv Ceschini stated that, if an Italian client was marrying a non-Italian under a separation of goods regime and wanted to be certain that it would bind him and his fiancée if they subsequently divorced in England, she would advise him to consult an English lawyer and arrange for an English pre-nuptial agreement to be drafted. Avv Russo also responded that he would possibly advise the client to consult an English lawyer “to know exactly how an even valid choice of Italian law and separation of assets is considered and treated in English courts”.

Nuptial agreement: submissions

On behalf of the wife, Miss Stone and Mr Brooks submit that the court should not hold that the wife entered into a separation of goods regime that would prevent her from bringing a sharing claim against the husband’s company shares on divorce in England. They rely on three principal submissions: (1) Italian law provides that the parties’ property regime is governed by English law. There is nothing in the regime that refers to or restricts claims in English law on divorce. Therefore the regime itself does not have the effect for which the husband contends, even in Italian law. (2) The wife had no appreciation of the implications of the regime. Almost every conceivable safeguard required of an English pre-nuptial agreement was absent. (3) The effect for which the husband contends, namely that he would keep the entirety of the proceeds of his company shares because of this agreement, falls foul of the fairness test set out at paragraph 80 of Radmacher.

As stated above, the Supreme Court in Radmacher confirmed that, when considering an application for financial remedies, the English court will apply English law irrespective of the domicile of the parties or any foreign connection. The foreign law is only relevant insofar as it provides evidence of the intentions of the parties at the time the agreement was formed.

All three Italian law experts agreed that under article 29(2) of Law 218/95, the default position is that the parties’ personal relations are governed by English law because England is the place where they have resided during the majority of their marriage, and that under article 30(1) their property relations are also governed by English law unless they have agreed in writing that those relations are governed by the law of another state of which one of the parties is a national. In this case, there was no express agreement or election providing that the parties’ property relations were governed by Italian law. The husband relies on the stamp on the deed of marriage that the parties “choose the regime of separation of assets pursuant to Art. 162 paragraph 2 of the civil code”. Article 162 is headed “form of marriage agreements” and paragraph 2 provides: “The choice of a system of separation of property can be declared also in the regular celebration of the marriage”. Miss Stone and Mr Brooks invite the court to accept Avv Ceschini’s construction of the Italian statutory provisions, namely that an election of applicable law must be express and in writing and is separate from, and additional to, an election of separation of goods. They therefore contended that, both as a matter of English law and construction of Italian law, the election of separation of goods regime cannot be said to restrict the wife’s claim on divorce.

Secondly, Miss Stone and Mr Brooks submit that, when the wife elected the separation of goods regime, she did not have a full appreciation of its implications. They rely on the observations quoted above of Mostyn J in B v S, Moor J in AH v PH, and Roberts J in Y v Y, that, to have effect, the parties must have intended that the agreement would apply wherever they might be divorced and, in particular, if they were divorced in the regime that operated a system of discretionary equitable distribution. Miss Stone and Mr Brooks submit that there is no evidence of any such intention in this case.

Miss Stone and Mr Brooks describe the question of whether each party entered into the matrimonial property regime with a full appreciation of its implications as purely a question of fact. They submit that the facts in this case manifestly point to a finding that the wife did not have a full appreciation of the implications of the election. They rely on the fact that:

Thirdly, Miss Stone and Mr Brooks submit that the effect for which the husband contends, namely that he would keep the entirety of the proceeds of his company shares because of this agreement, falls foul of the fairness test set out at paragraph 80 of Radmacher. They rely on the observation of Lord Phillips in that paragraph quoted above that “the circumstances of the parties often change over time in ways or to an extent which either cannot be or simply was not envisaged”. They submit that the growth in value of the husband’s shares in the company was the result of an active management on his part during the marriage at a time when the wife was playing her role as wife and mother, making a contribution that the husband himself described as “amazing”. Miss Stone and Mr Brooks asked, rhetorically, how can it possibly be fair for the wife to receive none of the fruits of the husband’s endeavour simply because of the election of the separazione dei beni regime.

On behalf of the husband, Mr Pointer and Mrs Carew Pole submit that the agreement incorporated in the election of the separazione dei beni regime is a valid contract under Italian law. Although at one point it seemed that this was not accepted by the wife, all three Italian legal experts agree it is valid and binding, absent a querela di falsa, and the wife is not maintaining her challenge at the hearing. The effect of the agreement is that each spouse holds and retains assets in his or her sole name and all growth in those assets accrues to the holder.

Although, as set out above, articles 29 and 30 of Law 218/95 provide that property relations between spouses are governed by the law relating to their personal relations (which, in this case, will be the law of England and Wales), article 30 also provides that the spouses may agree in writing that their property relations are governed by the law of the State of which at least one of them is a citizen (which in this case includes Italy). Mr. Pointer and Mrs Carew Pole contend that these provisions are consistent with English conflicts law (see Dicey and Morris, 15^th edition, rule 166, which provides:

“(1)

The validity, interpretation and effect of a marriage contract or settlement are governed in general by the proper law of the contract.

(2)

In the absence of reason to the contrary the proper law of a marriage contract or settlement is the law of domicile.

(3)

The parties to a marriage contract or settlement may expressly or impliedly agree that it shall be governed by some other law than the law of the matrimonial domicile.”

In further support of this proposition, they cited a number of UK cases to that effect. I accept the proposition as to English conflicts law and do not need to refer to those cases further. Mr Pointer and Mrs Carew Pole therefore submit that in this case the husband and wife agreed that their property relations would be governed by Italian law, relying on the preponderance of view amongst the Italian legal experts that the agreement incorporated in the election of the separazione dei beni regime includes an express or implied agreement that it should be governed by Italian law.

It is accepted on behalf of the husband that, whereas under Italian law the election of separation of goods applies for life, under English law the court has the power to adjust the division of assets on divorce. But Mr Pointer and Mrs Carew Pole submit that the change in the law brought about by the decision in Radmacher is fundamental, based as it is on the recognition that the autonomy of individuals should be respected (see judgment of Lord Phillips at paragraph 78 quoted above). They submit that this is reflected in the distinction drawn by the Supreme Court between the three strands identified in White and Miller – between needs and compensation on the one hand and sharing on the other - namely that it is likely to be fairer to uphold an agreement which modifies the sharing principle than one which leaves one of the parties with inadequate provision to meet his or her needs They draw attention to a number of first-instance decisions since Radmacher in which courts have upheld marital agreements that exclude a party’s sharing claim (V v V [2011] EWHC 3320, Z v Z (No.2), supra, SA v PA [2014] EWHC 392) but assert that there are no examples of decisions where an agreement has been considered fair and upheld where one party’s needs are not met by it.

In assessing the wife’s understanding and appreciation of the implications of the agreement, Mr Pointer and Mrs Carew Pole submit that her evidence on this subject is deeply suspect. They point to the fact that, in her Form E, the wife had asserted that there had only been one conversation about the matter, i.e. the discussion between the parties in the wife’s flat, yet the evidence demonstrated that in addition the wife spoke to her mother about it, Father G had a conversation with both parties about it prior to the wedding, and the matter was expressly referred to during the wedding ceremony. Mr Pointer and Mrs Carew Pole submit that the wife obviously had a clear understanding of the import of the agreement. Her evidence demonstrated that she realised that the agreement meant that she retained what belonged to her and the husband retained what belongs to him. Her oral evidence that she did not think the events of October 2008 had legal consequences, or if they did it only applied to real property and that she did not realise that the husband’s shares in the company would remain with him was, they submit, not credible. Her lack of credibility undermines all of the evidence as to the extent of understanding of the implications of the agreement.

In so far as the wife seeks to avoid the agreement from the outset, Mr Pointer and Mrs Carew Pole submit that it is irrelevant that the agreement was founded on the election of the separazione dei beni regime rather than contained in any bespoke prenuptial agreement since it was valid under Italian law in that form. The fact that the deed was only signed at the wedding is irrelevant because the wife agreed to a separation of goods regime in the conversation in her flat some four months earlier and, it is submitted, was provided with a full explanation of its meaning during the conversation with Father G. The fact that the agreement was in Italian was irrelevant because the relevant earlier conversations were conducted in whole or in part in English. The husband’s failure to tell the wife that he had taken legal advice is also irrelevant because it would have made no difference if he had told her. The fact that the wife herself did not seek legal advice is not a matter to which the court should attach significant weight. The wife is an intelligent and highly educated woman who had plenty of opportunity between June and October to seek legal advice if she had wanted. Furthermore, there is no reason to believe that, had she done so, the outcome would have been any different.

Mr Pointer and Mrs Carew Pole invite the court to accept the evidence of Father G and in particular that he made sure that the wife fully understood the contract into which the parties were entering. Father G was under an obligation to make sure she understood this and there is no reason to doubt that the husband faithfully translated his words. Any inconsistences in the evidence as to the date of the conversation are immaterial since there is no doubt that the conversation took place. There is no doubt that the relevant article of the Civil Code was mentioned at the end of the wedding ceremony. It is submitted that the notion that the wife did not understand that the marriage had important legal consequences is fanciful.

It is the husband’s case that, in all significant respects, the parties conducted their affairs after the marriage on the basis of the separation of goods. One example relied on by his counsel is the fact that property was transferred by the wife’s mother from her family trust into the wife’s sole name. Mr Pointer and Mrs Carew Pole submit that the wife’s mother’s evidence that she did not fully read the translation of the marriage certificate was patently false. They invite the court to infer that she had the document translated in order to reassure herself that there was an effective agreement in place. The agreement was entirely consistent with the wife's mother’s policy of drafting settlements so as to include her daughters’ spouses only so long as they remained married to them. It is their case that the wife and her mother both knew perfectly well what the marriage contact contained. They submit that the more recent suggestion that the wife did not understand the longer term effect of the agreement is not credible.

As to the wife’s understanding of the husband’s financial position at the time of the agreement, Mr Pointer and Mrs Carew Pole submit that it is plain that each party understood in broad terms what assets belong to the other. Any deficiency of understanding was on the husband’s side. They invite the court to accept the husband’s evidence that part of the purpose of choosing the separation of goods regime was that he did not wish to share in the wealth of the wife’s family.

Finally, Mr Pointer and Mrs Carew Pole submit that on no view is the wife able to advance a case of real need so as to justify the court concluding that it is unfair to hold her to the agreement. She has substantial assets in her own name and, on the husband’s case, is in reality the beneficiary of family trusts.

Nuptial agreement: further discussion and conclusion

I start my analysis on this issue by considering the issues between the Italian lawyers. As to the precise status of the priest when conducting the ceremony, and as to whether he was as a matter of law required to arrange for an interpreter to be present when one or both of the parties to the marriage did not speak Italian, I do not consider it necessary to reach a conclusion. All the experts agreed that, in the absence of a querelo di falso process, the marriage deed remained valid irrespective of any irregularity in this regard.

I do, however, need to reach conclusion on the issue whether the election of the separazione dei beni regime amounted to an implied agreement that the property relations between the spouses were to be governed by Italian law. On this point, I accept the opinion evidence of Avv Ceschini. The phrase “pursuant to Article 162, paragraph 2, of the Civil Code” contained in the declaration stamped on the atto is simply an indication that the parties are declaring their choice of a system of separation of property in the record of the celebration of the marriage as permitted by Article 162, paragraph 2. Article 162, set out above, is headed “Form of marriage agreements” and contains a series of formalities required in order to ensure the validity of the agreement. I see no basis on which it can be said that the reference to Article 162, paragraph 2 in the atto indicates that the parties were choosing Italian law as the law governing their property relations. In the absence of an express declaration, the default position established by Articles 29 and 30 of Law 218/95 applies. I am fortified in my conclusion that Avv Ceschini’s interpretation is correct by the subsequent change in the form of the atto (which all the experts agree did not involve any change in the law), and by the rationale for the change explained in the Italian government circular quoted above. It would have been unnecessary to change the template “to allow those intending to marry the possibility of indicating, at the time of marriage, the foreign law applicable to their property relations” if the choice of law was implied by the election of the separazione dei beni regime.

Accordingly, I conclude that the parties did not at any point agree in writing that their property relations would be governed by Italian law. The default position under Italian conflicts law in Articles 29 and 30 therefore applies. The personal and property relations between them are governed by English law.

Even if my conclusion on this issue is wrong, any agreement between the parties that their property relations were to be governed by Italian law would only be relevant in these proceedings as evidence of their intentions. Such an agreement would not by itself be sufficient to oblige this court to uphold the agreement.

I respectfully agree with and adopt the observations made by Mostyn J in B v S, Moor J in AH v PH and Roberts J in Y v Y. A civil law matrimonial property agreement is different in character and objective to a ‘common law’ prenuptial agreement which seeks to abrogate or influence the right to invoke the statutory discretion to redistribute fairly (or equitably) all the resources of the spouses following their divorce. For a nuptial agreement to have effect, the parties must have intended the agreement to apply wherever they might be divorced and, in particular, if they were divorced in a regime that operated a system of discretionary equitable distribution. A full appreciation of the implications of a nuptial agreement will, in almost every case, involve an understanding on the part of both parties (i) as to the nature and effect of the terms, and (ii) of the circumstances in which its implementation in a jurisdiction other than that in which it is made will, or might, affect the scope of any legal award or remedy which otherwise would be available to one of the parties in the event of divorce.

In this case, while I am satisfied that the wife understood in basic terms the nature and effect of the separazione dei beni regime, I am not satisfied that she had any understanding of the circumstances in which its implementation in a jurisdiction other than Italy might affect the scope of any remedy which would otherwise be available to her in the event of divorce.

I accept the evidence of the wife as to the initial conversation between the parties about this issue at the wife’s flat in London in the early summer 2008. I find that there was only a brief discussion of the choice of regime and no discussion of the question whether the separation of goods regime would apply if the marriage came to an end. I accept the wife’s evidence that it was the briefest of conversations and that she did not appreciate that it would have any relevance if there was a divorce. I accept the evidence that she thought it only applied to the properties and did not turn her mind to the legal consequences.

As to the conversation with Father G, I accept his evidence that the discussion about the marital regime was concise. I have looked very carefully at the wife’s oral evidence. I accept that at times, under penetrating cross-examination by Mr Pointer, she hovered between not recollecting and denial. I find that Father G did raise the question but only briefly and that the wife now has no recollection of it. I accept Father G’s evidence that, during his conversation with spouses in the circumstances, he does not “enter into the divorce, what happens if they divorce”, because his view is that, if they divorce, “this is something that no longer pertains to the church”. I am quite satisfied that this was never raised during the conversation at the church on 11 October 2008.

Having considered all the evidence about the marriage ceremony itself, including the evidence of the witnesses and the video extracts, I find that nothing occurred in the wedding ceremony which would have added materially to the wife’s understanding of the implications of the election of the marital property regime. Manifestly, she was not at that point thinking about the legal consequences of that election.

I have also considered the evidence of the wife’s mother, about the conversation some time after the marriage with her lawyer Mr. Jacob. I have to say that I found aspects of her evidence implausible. I think it more likely than not that the wife’s mother read the translation of the certificate and was aware that it contained a record of the election of a separation of goods regime. The translation which the wife’s mother obtained, however, included a reference to a marginal note to the effect that “the married couple chose a separate ownership of assets during marriage” (my emphasis). This point was not further explored in the evidence. Overall, I conclude that the wife’s mother’s evidence, and my concerns as to its plausibility, do not support the husband’s case that the wife had a full appreciation of the implications of the election of the regime.

I accept that in some cases it will be appropriate for the court to uphold an agreement contained in the election of a matrimonial property regime, but in my judgment it will in many cases be more likely that the court will conclude that it would not be fair to hold the spouse to such an agreement, particularly where the election is made in a language with which he or she is not familiar and where the legal implications of the election are not made fully clear. Plainly, the court will be more likely to uphold an agreement which is contained in a bespoke document, in the language or languages which both parties understand, and when the legal applications, in particular on divorce, are clear.

I accept that the wife is an intelligent and educated person. But it is striking that the Italian lawyers who give evidence in this case were unable to agree as to whether the election of a separazione dei beni regime contained an express or implied term that the property relations between the parties would be governed by Italian law. It is also notable that all three of the Italian legal experts stated that, were they to be asked to advise an Italian client who was proposing to marry a non-Italian under a separation of goods regime as to whether that regime would bind him and his fiancée if they later divorced in England, they would advise the client to consult an English lawyer. In those circumstances, it is difficult to see how it could be fair to conclude that a foreign party, with no understanding of the language, fully understood the implications.

It is true that during the marriage the parties largely kept their financial affairs separate. They were each people of independent means and could afford to do so. They did not need to pool their resources. The fact that they conducted their affairs in that way is relevant when applying the sharing principle. But their conduct in keeping their financial affairs separate was not, in my judgment, based on the election of the separazione dei beni. It was simply how they chose to lead their lives.

In short, I conclude that, when she agreed to the separazione dei beni matrimonial property regime, the wife did not fully understand or appreciate the implications of the agreement, in particular as to whether it would apply in the event of the breakdown of the marriage and, in particular, in divorce proceedings in a jurisdiction which provided for the discretionary equitable distribution of matrimonial assets. In those circumstances, it would be manifestly unfair to hold the wife to the agreement, particularly given the wholly exceptional increase in the value of the matrimonial assets over the seven years of the marriage. I therefore conclude that no weight should be attached to the agreement in determining the division of the matrimonial assets in this case.

Reasons for departing from sharing: (2) unilateral assets

Case law

The next reason advanced by the husband for departing from the sharing principle is that his shares in the company should be regarded as a species of non-matrimonial property and that they fall outside the principle altogether. In order to consider the next issue, it is necessary to go back to the case law.

The origin of the distinction between matrimonial and non-matrimonial assets is found in the speech of Lord Nicholls of Birkenhead in White at page 610 e to f:

“… property owned by one spouse before the marriage, and inherited property whenever acquired, stand on a different footing from what may be loosely called matrimonial property. According to this view, on a breakdown of the marriage these two classes of property should not necessarily be treated in the same way. Property acquired before marriage and inherited property acquired during marriage come from a source wholly external to the marriage. In fairness, where this property still exists, the spouse to whom it was given should be allowed to keep it. Conversely, the other spouse has a weaker claim to such property than he or she may have regarding matrimonial property.”

In Miller, the House of Lords returned to the question of the distinction between matrimonial and non-matrimonial property. On this occasion, however, Lord Nicholls qualified the distinction between matrimonial and non-matrimonial property. At paragraph 26, under the heading “Flexibility”, he observed:

“This difference in treatment of matrimonial property and non-matrimonial property might suggest that in every case a clear and precise boundary should be drawn between these two categories of property. This is not so. Fairness has a broad horizon. Sometimes, in the case of a business, it can be artificial to attempt to draw a sharp dividing line as at the parties’ wedding day. Similarly the ‘equal sharing’ principle might suggest that each of the party’s assets should be separately and exactly valued. But valuations are often a matter of opinion on which experts differ.”

A little earlier in his speech, Lord Nicholls had said:

“ … the courts should be exceedingly slow to introduce, or reintroduce, a distinction between ‘family’ assets and ‘business or investment’ assets. In all cases the nature and source of the parties’ property are a matter to be taken into account when determining the requirements of fairness …. But ‘business and investment’ assets can be the financial fruits of a marriage partnership as much as ‘family’ assets. The equal sharing principle applies to the former as well as the latter. The rationale underlying the sharing principle is as much applicable to ‘business and investment’ assets as to ‘family’ assets.”

Baroness Hale of Richmond, however, took a slightly different view. At paragraph 150, she posed a question:

“More difficult are business or investment assets which have been generated solely or mainly by the efforts of one party. The other party has often made some contribution to the business, at least in its early days, and has continued with her agreed contribution to the welfare of the family …. But in these non-business-partnerships, non-family assets cases, the bulk of the property has been generated by one party. Does this provide a reason for departing from the yardstick of equality?”

She proceeded to identify the competing arguments (at paragraphs 150-1):

“On the one hand is the view… that commercial and domestic contributions are intrinsically incommensurable. It is easy to count the money or property which one has acquired. It is impossible to count the value which the other has added to their lives together. One is counted in money or money’s worth. The other is counted in domestic comfort and happiness. If the law is to avoid discrimination between the gender roles, it should regard all the assets generated in either way during the marriage as family assets to be divided equally between them unless some other good reason is shown to do otherwise …. On the other hand is the view that this is unrealistic …. Some [assets] are not family assets in the way that the home, its contents and the family savings are family assets …. It simply cannot be demonstrated that the domestic contribution, important though it has been to the welfare and happiness of the family as a whole, has contributed to the acquisition. If the money-maker had not had a wife to look after him, no doubt he would have found others to do it for him. Further, great wealth can be generated in a very short time, as the Miller case shows; but domestic contributions by the very nature take time to mature into contributions to the welfare of the family.”

Baroness Hale continued:

“152.

My Lords, while I do not think that these arguments can be ignored, I think they are irrelevant in the great majority of cases. In the very small number of cases where they might make a difference, of which Miller may be one, the answer is the same as given in White in connection with premarital property, inheritance and gifts. The source of the assets may be taken into account but its importance will diminish over time. Put the other way round, the court is expressly required to take into account the duration of the marriage: section 25(2)(d). If the assets are not ‘family assets’, or not generated by the joint efforts of the parties, then the duration of the marriage may well justify a departure from the yardstick of equality of division. As we are talking here of a departure from that yardstick, I would prefer to put this in terms of a reduction to reflect the period of time over which the domestic contribution has or will continue ….

153.

This is simply to recognise that in a matrimonial property regime which still starts with the premise of separate property, there is still some scope for one party to acquire and retain separate property which is not automatically to be shared equally between them. The nature and the source of the property and the way the couple have run their lives may be taken into account in deciding how it should be shared. There may be other examples. Take, for example, a genuine dual career family where each party has worked throughout the marriage and certain assets have been pooled for the benefit of the family but others have not. There may be no relationship-generated needs or other disadvantages for which compensation is warranted. We can assume that the family assets, in the sense discussed earlier, should be divided equally. But it might well be fair to leave undisturbed whatever additional surplus each has accumulated during his or her working life. However, one should be careful not take this approach too far. What seems fair and sensible at the outset of a relationship may seem much less fair and sensible when it ends. And there could well be a sense of injustice if a dual career spouse who has worked outside as well as inside the home throughout the marriage ended up less well off the one who had only or mainly worked inside the home.”

Thus, on the facts of Miller, Baroness Hale (paragraph 158) reached the conclusion that:

“… there was a reason to depart from the yardstick of equality because those were business assets generated solely by the husband during a short marriage. Whether one puts this as a result of the contacts and capacities he brought to the marriage or as the result of the nature and source of the assets generated … it comes to much the same thing.”

In Charman v Charman (No.4) [2007] EWCA Civ 503, [2007] 1 FLR 1246, the Court of Appeal was presented with an argument that “non-business partnership non-family assets”, or “unilateral assets” (to use a shorter, more convenient label suggested in another case), should be excluded altogether from the sharing principle in a case involving a marriage of twenty-eight years duration. At paragraph 83, Sir Mark Potter, giving the judgment of the court, said:

“We hasten to correct a serious misapprehension at the heart of the submission …. Baroness Hale of Richmond put forward the distinction between unilateral assets and other matrimonial property for use in cases in which the marriage was short. And, although obiter she suggested an extension of it to another situation, namely that of the dual career … she definitely did not commend the distinction for use in other cases. Its application in a case such as the present would be deeply discriminatory and would gravely undermine the sharing principle articulated, albeit embryonically, in White and emphatically developed in other parts of the speeches in Miller itself.”

At paragraph 86, the President added:

“The extension of the concept of unilateral assets, suggested by Baroness Hale of Richmond in Miller at para 153, was expressly endorsed by Lord Mance at para 170. Although obiter, it clearly commands great respect. It relates to the ‘dual career’. The suggestion was that, where both parties had worked throughout the marriage, had pooled some of the assets built up by their efforts but had chosen to keep other such assets under their separate control, the latter, although unequal in amount, were unilateral assets which might not be subject to the sharing principle. Because of the convincing logical objections of Lord Nicholls of Birkenhead to the different treatment of unilateral assets, we would prefer, so far as it is proper for us to do so, to keep the room for application of the concept closely confined.”

The law concerning the treatment of unilateral assets has been developed further in the judgment of the Court of Appeal in Sharp, supra, which was handed down on the second day of the hearing in this case. At the time when submissions were delivered, the legal profession was still chewing on the decision and digesting its implications. A considerable amount of academic comment on the case has subsequently been published since, in the period when I have been considering my decision in this case.

The facts of Sharp can be summarised briefly. The parties were married for five years and had no children. When they were married, both parties earned around £100,000 per annum, but in the course of the marriage the wife earned discretionary annual bonuses totalling £10.5m. They purchased two properties for a combined price of just over £3m. During the marriage, they contributed equally to the household expenses. At first instance, Sir Peter Singer, sitting as a judge of the High Court, awarded the husband 50% of the total matrimonial assets, amounting to £2.75m. The Court of Appeal allowed the wife’s appeal, set aside the order and awarded the husband £2m, or 36%.

The Court of Appeal’s decision in Sharp, as explained in the judgment of McFarlane LJ, was based on the opinion of the majority of the House of Lords in Miller, namely Baroness Hale of Richmond, Lord Hoffmann and Lord Mance. The two leading speeches in the House in Miller were given by Baroness Hale and Lord Nicholls of Birkenhead. As McFarlane LJ observed in Sharp (at paragraph 84), there was much common ground in those two speeches, but on some points they differed and on those points it is the opinion of Baroness Hale, with whom Lord Hoffmann and Lord Mance agreed, which represents the authoritative view. As demonstrated by the extracts from the citations above, one point on which the two principal speeches in Miller differed was whether or not the court should make a distinction between “family assets” and “business or investment assets”. Lord Nicholls was of the view that the court should be “exceedingly slow to do so” (paragraph 20). In contrast, Baroness Hale and the majority adopted a more flexible approach taking account of “the nature and the source of the property and the way the couple have run their lives” (paragraph 153).

In Sharp, McFarlane LJ (at paragraph 80) expressed concern about the passage in the Charman judgment cited above:

“Where… the lone opinion of Lord Nicholls [in Miller] on a matter is in conflict with that of the three members of the House you were in agreement on that matter, the opinion of the majority must be the authoritative view. In so far as the judgment of this court in Charman at paragraph 86 has been interpreted as expressing a preference for the opinion of Lord Nicholls on such matters, such an interpretation is, in my view, erroneous.”

After a very careful analysis of all the speeches in Miller, McFarlane LJ in Sharp reached the following conclusion:

“97.

The inescapable conclusion from this analysis of the speeches in Miller, in terms of the possibility of some alteration from, rather than a strict application of, the equal sharing principle in relation to short, childless marriages, where both spouses have largely been in full-time employment and where only some of their finances have been pooled, is that fairness may require a reduction from a full 50% share or the exclusion of some property from the 50% calculation. Of the five members of the Judicial Committee, only Lord Nicholls suggested a contrary view and even on his analysis the potential for some form of relaxation can be seen.

98.

In contrast to the position in Charman, this court now has to confront the short marriage ‘dual career’ issue directly on the facts of the present case. In my view, whilst affording due respect to the observations made by the experienced court in Charman, we are obliged to go back to the speeches in Miller and do so on the basis that I have described …. For the reasons that I have given, the authoritative guidance in relation to short marriage, dual-career cases is to be found in the speeches of the majority and not, where it differs, in that of Lord Nicholls.

99.

Whilst much of what is said in this regard in Miller (for example relating to dual careers) is probably obiter, the conclusive point to be taken from Miller, however, arises from the actual determination of the House of Lords on the Miller appeal itself, where all five of their Lordships agreed that Mrs Miller should receive substantially less than 50% of the value of the New Star shares. The existence of a basis for departing from a strict application of equal sharing, albeit in a small number of cases and on the unusual facts of that case, is thereby established as a matter of law.”

Sharp, like Miller, involved a short, childless marriage. Unlike Miller, where the wife did not work during the marriage, both Mr and Mrs Sharp worked for most of the duration of their marriage. This led McFarlane LJ to consider what had been said about “dual career” cases in Miller and Charman:

“106.

Miller is a short marriage, but not a dual career case. This distinction is directly acknowledged by Baroness Hale at paragraph 152: “the duration of the marriage may justify a departure from the yardstick of equality of division”. This was also the ratio of Baroness Hale’s decision on the facts of Miller …. By contrast, at paragraph 153, Baroness Hale goes on to consider a different case, which did not arise on the facts of either Miller or McFarlane, namely a dual career marriage of any length (and not expressly confined to a short marriage). While the first sentence, and, probably, the second sentence of paragraph 153 are part of the ratio of Miller, the rest of that paragraph appears to be obiter.

107.

The distinction between the treatment of short marriages in paragraph 152 and the (obiter) discussion about dual career marriages in paragraph 153 in Miller was recognised by this court in Charman at paragraph 83 and that distinction is carried forward in paragraphs 85 and 86. At paragraph 85 the court addresses the issue of short marriages and accepts the majority view expressed by Baroness Hale at paragraph 152 of Miller, while at paragraph 86 they address the obiter example of dual career marriages. It was clearly unnecessary for them to do so, because Charman was not a dual career marriage. What is said at paragraph 86 is therefore obiter comment on Baroness Hale’s obiter comment on dual career marriages. The court appears to have been concerned that recognition of unilateral assets as falling outside the sharing principle in a long (or more than short) marriage could well produce an unfair result. For that reason, they wanted the notion of different treatment of unilateral assets in such marriages to be ‘closely confined’. Baroness Hale had herself recognised the need for care and limitation in the last three sentences of paragraph 153. That issue, which does not arise on the facts of the present case, remains a matter for debate on another day. On that analysis of the key passages in the judgment in Charman, there is no impediment, in terms of possible conflict, for this court now to contemplate a departure from the equal sharing principle in the case of a dual career marriage which was short, and where the couple had kept their finances separate.”

Thus the Court of Appeal in Sharp left open the question as to whether the approach of the majority to unilateral assets in Miller applied outside the “discrete cohort of cases” involving short, childless marriages, where both spouses have largely been in full-time employment. McFarlane LJ concluded that the question whether the majority’s approach to unilateral assets applied more widely, which did not arise on the facts of Sharp, “remains a matter for debate on another day”.

Submissions on unilateral assets

On behalf of the husband in this case, Mr Pointer and Mrs Carew Pole contend, in effect, that day has arrived. This is not a childless marriage and the wife did not work outside the home throughout the marriage. It therefore falls outside the “discrete cohort of cases” identified in Sharp. They submit, however, that, given the duration of the marriage (just under seven years) and the fact that the assets were generated through the husband’s business activities, they should be regarded as unilateral assets falling outside the sharing principle.

On behalf of the wife, Miss Stone and Mr Brooks submit that there is no legal authority for extending the concept of unilateral assets beyond the narrow confines of the factual matrix which existed in Miller and Sharp. They rely on the observations of the Court of Appeal at paragraph 83 of the judgment in Charman quoted above which, they submit, are binding on this court. They invite the court look at the factors identified by Baroness Hale at paragraph 153 of Miller. With regard to the nature and source of the assets, they point out that the assets in question are the husband’s shareholding in the company, and that the nature of that company changed dramatically during the marriage for reasons that include active management by the husband during the marriage. With regard to the way in which the couple have run their lives, they point out that the wife has devoted her life to the day-to-day care of AB, and managing his therapeutic needs. As a result, the husband has been able to work demanding hours and generate substantial wealth. With regard to Baroness Hale’s preferred characterisation (at paragraph 152) of how the duration of the marriage may justify a departure from the yardstick of equality - namely “in terms of a reduction to reflect the period of time over which the domestic contribution has or will continue” – Miss Stone and Mr Brooks submit that there is no basis for the court to allow any reduction of the wife’s share because by the time AB is independent she will have made a substantial domestic contribution for a long period.

Decision on unilateral assets

This marriage lasted six years ten months. Although undoubtedly not a long marriage, it cannot in my view be characterised as “short”. I accept, however, that this is a matter of which opinions may differ. The duration of the marriage is not significantly longer than that in Sharp. Unlike Sharp and Miller, however, this was not a childless marriage. Nonetheless, Mr Pointer and Mrs Carew Pole invite me to extend the “concept of unilateral assets” to the facts of this case and to exclude the husband’s shares in the company from the sharing principle altogether. I decline to do so, for the following reasons.

First, the consensus of the judges at appellate level is that the circumstances in which the fact that the assets have been generated by one party during the marriage justifies departing from the yardstick of equality are limited to a small minority of cases. Baroness Hale in Miller considered that the arguments in favour of departing from equality on these grounds are irrelevant in the great majority of cases. The Court of Appeal in Charman (consisting, I remind myself, of Sir Mark Potter P, Thorpe LJ and Wilson LJ, as he then was) preferred to keep the concept of unilateral assets “closely confined”. Although McFarlane LJ in Sharp, with whom the other judges of the Court of Appeal agreed, considered that the Court’s interpretation of Miller in Charman had erroneously been based on the opinion of Lord Nicholls, rather than the majority, I do not read McFarlane LJ’s judgment providing any support for the extension of the “concept of unilateral assets” to a wider range of cases.

Secondly, there is no authority for the proposition that the scope for one party to acquire and retain separate property which is excluded entirely from the sharing principle extends to cases where there are children of the marriage. Indeed, the rationale for allowing the departure from the yardstick of equality articulated by Baroness Hale in Miller (at paragraph 152), namely that it should be seen as a reduction in the share to reflect the (short) period of time over which the domestic contribution has continued or will continue, manifestly does not apply in cases with children where the domestic contribution will continue for long after the marriage has come to an end.

Thirdly, and in so far as it is appropriate for me to express a view, I conclude that to exclude unilateral assets from the sharing principle altogether in cases such as the present, involving a marriage of just under seven years duration where there is a young child of the marriage, a fortiori a child with special needs, would fundamentally undermine that principle which now lies at the heart of the treatment of claims for financial remedies following divorce in this jurisdiction. Furthermore, it would undervalue the domestic contribution of the homemaker to the welfare and happiness of the family as a whole. It would, in short, be discriminatory.

I therefore reject the submission put forward by Mr Pointer and Mrs Carew Pole that (a) the increase in the value of the husband’s shareholding in the company was a non-matrimonial asset which falls outside the sharing principle altogether and (b) the wife cannot expect to share in the value of the company at all. In my judgment, the increase in the value of the shareholding in the company during the marriage was an asset which falls to be considered as part of the property adjustment exercise.

On the other hand, the fact that shareholding in the company, ultimately worth around half a billion pounds, was generated by the husband’s business activities is a fact which cannot be ignored entirely. Fairness has a broad horizon. Although it would be wrong to exclude the husband’s unilateral assets entirely from the sharing principle, the nature and source of the assets may, as Baroness Hale said in Miller, be taken into account in deciding how it should be shared. I shall return to this point when setting out my conclusions below.

Reasons for departing from sharing: (3) latent potential value

Case law

The next argument advanced by the husband concerns the value of his shares at the date of the marriage. He asserts that if, contrary to his earlier arguments, the court concludes that the wife is entitled to a lump sum to take account of the growth in value of his shares in the company, the calculation of that sum should reflect the latent potential in the company at the date of the marriage.

An analysis of the case law on this issue starts with the decision of the Court of Appeal (Sir Nicholas Wall P, Arden and Wilson LJJ) in Jones v Jones [2011] EWCA Civ 41. In that case, the parties were married for just under ten years. At the date of the marriage, the husband was the sole owner of a company which he had started some ten years earlier. At the date of the separation, the company was worth about £12m. After the breakdown of the marriage, however, where the proceedings for ancillary relief were underway, the husband sold the company and the net proceeds of sale in his hands amounted to £25m. That figure amounted to the net assets of the parties at the date of the hearing at first instance.

On appeal, the husband was represented (as it happens) by Miss Stone and the wife (as it happens) by Mr Pointer. At paragraph 33 of his judgment, Wilson LJ said:

“33.

My view is that, in applying the sharing principle to this case, we should in the first instance adopt the approach commended to the judge by Miss Stone. We should therefore effect a division of the total assets of £25m into the part reflective of non-matrimonial assets and that reflective of matrimonial assets. But in doing so, we should remember that, as Lord Nicholls stressed in Miller at paragraph 26, we are unlikely to need, still less to achieve, a precise division…

34.

My view, however, is that we should test the results suggested by the adoption of Miss Stone’s approach against application of Mr Pointer’s approach, namely by identifying, for allocation to the wife, such lesser percentage than 50% of the total assets as seems to make fair overall allowance for the husband’s introduction of his company into the marriage.

35.

Criticism can easily be levelled at both approaches. In different ways they are both highly arbitrary. Application of the sharing principle is inherently arbitrary; such is, I suggest, a fact which we should accept and by which we should cease to be disconcerted. Mr Pointer’s approach seems particularly by-and-large. But is the greater apparent specificity of Miss Stone’s approach an illusion? … [I]n this case, particularly in circumstances in which a central valuation mandated by has been crystallised by sale, I prefer in the first instance to adopt Miss Stone’s approach.”

On the facts of that case, Wilson LJ took as the first step the net proceeds of sale of £25m. He continued:

“37.

Our second step should be to ascribe to the company a value, as at the date of the marriage, which is both realistic and apt to the context in which it is required. In that regard our starting-point should be the valuation of the company as at the date upon which the respective accountants were ultimately agreed, namely £2m net….

38.

In my view, however, there are two reasons why the sum of £2m requires substantial adjustment.

39.

The first reason for adjustment arises out of further consideration of the concept of latent potential or, in the judge’s word, the springboard. I am concerned lest our decision in this case were to be misunderstood as generally encouraging an enquiry into whether the professional valuation of the company at a specified date should be subject to increase by reference to the presence within it at that date of springboard. Mr Pointer correctly submits that a professional valuation calculated by reference to future maintainable earnings will generally reflect the value of any such springboard. But there will be rare cases in which a judge may be persuaded that it has failed to do so ….”

Having noted (at paragraph 42) that:

“we are concerned only with the value to be attributed to the springboard in place at that date [i.e. the date of the marriage], not with a value to be attributed to the subsequent activity of the diver or gymnast upon it”

Wilson LJ concluded, on this issue (paragraph 43):

“By reference to its latent potential at the date of the marriage, I propose to take the value of the company at that date as being £4m rather than £2m. The figure is again, highly arbitrary; I make no apology for this but it reinforces the need to test against some other approach the conclusion ultimately reached by reference to it …. [N]ot even a judge at first instance, with access to all the evidence referable to the reason for the company’s later success, could secure acquittal of a charge of having been arbitrary at this stage of conversion of such a feature into terms of money.”

Wilson LJ added, however, that there was a further reason for adjustment, namely “the need to allow for passive economic growth in the company between the date of the marriage and the date of sale”. He explained this at paragraph 46:

“ … Take a work of art or land with potential for development which a spouse has owned since prior to the marriage and which, without activity on his or her part, has substantially increased in value during it. The court would accept that the increase in its value during the marriage was as much non-matrimonial as its value at the date of the marriage: it would thereby allow for its passive growth. Passive growth is to be contrasted with growth as a result of contributions of one sort or another made during the marriage, i.e. of activity, irrespective of whether such is achieved with the assistance of a springboard already in position.”

Applying this to the facts of the case before him, he continued (paragraph 49):

“ … If at the date of the marriage the husband’s £4m had represented the value of a minority holding in the company in which he was no more than an investor but which operated in a field identical to that in which his company actually operated, he would again be the beneficiary of adjustment for any passive economic growth. I do not see how the law can logically decline to attempt to enquire into the existence and, if so, the amount of such growth by reference only to the nature of the husband’s investment.”

On the facts of that case, Wilson LJ applied to the sum of £4m an increase representing the percentage increase in the relevant stock exchange index between the date of the marriage and the date of the sale, thereby lifting the figure from £4m to £8.7m, which in turn led to an award to the wife of £8m.

Wilson LJ then tested the suggested award by the application of what he characterised as Mr Pointer’s approach, namely identifying such lesser percentage than 50% of the total assets as seemed fair to make overall allowance for the husband’s introduction of his company into the marriage. Recording that his view of overall fairness to the parties led him to identify a bracket of between 30% and 36%, he concluded that the suggested award survived the test.

Sir Nicholas Wall P agreed that the appeal should be allowed for the reasons given by Wilson LJ, whilst noting that “Wilson LJ’s expertise in this area of the law is infinitely greater than my own, and I thus make no comment on the means whereby he has reached his conclusions.” Arden LJ, whilst agreeing with Wilson LJ’s conclusion, disagreed with his treatment of the issue of passive growth, saying:

“59.

As to ‘passive growth’, I agree that in principle and, in the circumstances of this case, an allowance should be made even though the asset is a private company the business of which is developed and expanded (in this case exponentially) during the marriage …

60.

However, I would query whether what Wilson LJ proposes in his judgment is really passive growth and reject the notion that the only growth that can be taken into account is passive growth. First, as a matter of principle, when valuing the non-matrimonial assets at the end of a marriage, the court should so far as it can look at what has actually happened and not at what might have happened. In parenthesis, I would add that, because of this principle of ‘reality’, I would reject the graphs provided by Miss Stone seeking to establish the values of the company at certain dates based on an artificial assumption of a straightline growth up to eventual sale. Secondly, if only passive growth is taken into account, the law rewards the spouse who buries her non-matrimonial assets in the ground rather than the spouse who actively manages them. The correct analysis in my judgment, in circumstances of the present, is that, where a spouse has a non-matrimonial asset of the present kind, he is entitled to that element of the company at the end of the day which can fairly be taken to represent the fruits of the non-matrimonial assets that accrue during the marriage, even if the fruits are the product of activity by him or on his own behalf.”

There are, therefore, three points of particular relevance to the present case arising out of the decision in Jones v Jones: (1) whether the court should adopt a “formulaic” or “broader” approach to the evaluation and treatment of non-matrimonial assets; (2) what allowance should be made for “passive growth” in the valuation of a non-matrimonial asset, and (3) whether the court should make any allowance for “latent potential” or a “springboard” within the company not reflected in a conventional valuation.

The dichotomy between a “formulaic” approach and a “broader” approach has been subject of some judicial disagreement. In a number of cases, Mostyn J has contended for a “formulaic” approach. In FZ v SZ (Ancillary Relief: Conduct: Valuations) [2010] EWHC 1630 (Fam), [2011] 1 FLR 64, for example, he warned (at paragraph 143) that:

“A telescoped approach runs the risk of insufficient logical rigour being applied to the identification and treatment of the two very different categories [i.e. matrimonial and non-matrimonial assets]. It runs the risk of palm-tree justice being applied.”

He has returned to this theme in subsequent cases. For example, in WM v HM [2017] EWFC 25 he quoted from his decision in an unreported case (neutral citation number [2017] EWHC 147 (Fam)) which was not before this court but was referred to by Mr Pointer (who was counsel for the wife in WM v HM) as “the Scottish case”:

“I am firmly of the view that the correct approach to give effect to the sharing principle is to try to calculate the scale of the matrimonial property and then normally to share that equally leaving the non-matrimonial property untouched. This is logically pure, morally sound, easy to understand and limits individual judicial caprice.”

In other cases, Moylan LJ has preferred the broader interpretation. In C v C [2008] 1 FLR 8, Moylan J (as he then was) observed:

“… a flexible approach is required to ensure that the court's focus remains on achieving a result which is fair. Of course, as the Court of Appeal said in Charman, judges must be loyal to the guidance given on a topic by the House of Lords. However, it is the application of guidance, not the rigid application of any specific formula coupled with a requirement to find clear and precise boundaries.”

Moylan LJ has recently returned to this topic in the Court of Appeal in Hart v Hart [2017] EWCA 1306 (Civ) (which was heard and reported after the end of the hearing in the present case). At paragraph 78 of his judgment, he said:

“ … it is important to note that Jones used both a mathematical and a broad approach to determine the fairness of the proposed award. It is also important to note that both approaches arrived, effectively, at the same outcome. In my view, this demonstrates, through the use of both approaches and by reference to the respective outcomes, that both methods provide a permissible route to arriving at a fair determination.”

He reached the following conclusion (at paragraphs 84 to 87):

“84.

In my view, the court is not required to adopt a formulaic approach either when determining whether the parties’ wealth comprises both matrimonial and non-matrimonial property or when the court is deciding what award to make. This is not necessary in order to achieve “an acceptable degree of consistency”, (Lord Nicholls in Miller, paragraph 6), or to achieve a fair outcome ….

85.

It is, perhaps, worth reflecting that the concept of property being either matrimonial or non-matrimonial property is a legal construct. Moreover, it is a construct which is not always capable of clear identification. An asset can, of course, be entirely the former, as in many cases, or entirely the latter, …. However, it is also worth repeating that an asset can be comprise both, in the sense that it can be partly the product, or reflective, of marital endeavour and partly the product, or reflective, of a source external to the marriage. …. When property is a combination, it can be artificial even to seek to identify a sharp division because the weight to be given to each type of contribution will not be susceptible of clear reflection in the asset’s value. The exercise is more of an art than a science.

86.

In my view, the guidance given by Lord Nicholls in Miller remains valid today and, indeed, bears increased weight in the light of the courts’ experience since that case was decided. It can, as he said, be artificial to attempt to draw a “sharp dividing line”. Valuations are a matter of opinion on which experts can differ significantly. Investigation can be “extremely expensive and of doubtful utility”. The costs involved can quickly become disproportionate. Proportionality is critical both because it underpins the overriding objective and because, to quote Lord Nicholls again: “Fairness has a broad horizon”.

87.

In addition, with due respect to Mostyn J’s extensive experience in this field, I am not sure there are different schools. In my view, the differences which he identifies are examples of the same principle being applied, but applied in a different manner depending on the circumstances of the case. One application may be more specific than the other but this will typically reflect the “degree of particularity or generality appropriate in the case”: Miller (paragraph 27). The outcome will be the same, namely, when justified, an unequal division of the parties’ property.

Moylan LJ went on to give practical advice about how to approach a case where the existence of non-matrimonial property is being asserted. First, “a case management decision will need to be made as to whether, and if so what, proportionate factual investigation is required” (paragraph 89). Secondly, “the court will need to make such factual decisions as the evidence enables it to make” (paragraph 91). At that point, the court “may decide that the non-marital contribution is not sufficiently material or bears insufficient weight to justify a finding that any property is non-matrimonial” (paragraph 92). Alternatively, “if the evidence establishes a clear dividing line between matrimonial and non-matrimonial property, the court will obviously apply that differentiation to the next, discretionary stage” (paragraph 93). Where, however, “there is a complicated continuum, it would be neither proportionate nor feasible to seek to determine a clear line …. In those circumstances the court will undertake a broad evidential assessment and leave the specific determination of how the parties’ wealth should be divided to the next stage” (paragraph 94). The third and final stage of the process “is when the court undertakes the s.25 discretionary exercise” (paragraph 95). Importantly, Moylan LJ added that:

“Even if the court has made a factual determination as to the extent of the parties’ wealth which is matrimonial property and that which is not, the court still has to fit this determination into the exercise of the discretion having regard to all the relevant factors in this case. This is not to suggest that, by application of the sharing principle, the court will share non-matrimonial property but the court has an obligation to determine that its proposed award is a fair outcome having regard to all the relevant s.25 factors.”

In conclusion, Moylan LJ repeated Lord Nicholls’ dictum in Miller that “fairness has a broad horizon” and added (at paragraph 97):

“I recognise, of course, the need for clear guidance and principles when the court is given a discretion as wide as that contained in section 25 of the 1973 Act. Such clarity not only assists judges when determining financial claims but also enables those seeking to resolve the consequences of their separation and divorce, as it has been described, “to bargain in the shadow of the law”: Matrimonial Property, Needs and Agreements 2014 (Law Com No 343) paragraph 3.6. However, this should not lead to the imposition of constraints which are not needed to achieve, and which deprive the court of the flexibility required to achieve, a fair outcome.”

Since Jones v Jones, the courts have returned to the subject of “passive growth” and “latent potential” on a number of occasions. I was informed by counsel that courts have regularly made allowance for passive growth in the way advocated by Wilson LJ. In addition, however, there has been further consideration as to whether an allowance should be made for latent potential in at least two cases at first instance – Robertson v Robertson [2016] EWHC 613 (Fam) (per Holman J) and WM v HM, supra, (per Mostyn J).

Robertson concerned a couple whose cohabitation and marriage had lasted for about eleven years. At the beginning of their relationship, the husband owned a company and his shares at that time, including passive growth, were valued at around £4.8m. At the date of the hearing, the company was worth over £2 billion and the spouses’ assets totalled £219m, including investment properties purchased with funds from the sale of the business. It was contended on behalf of the wife that all the assets constituted matrimonial property and she applied for an equal division. The husband, on the other hand, argued that the total value of his shareholding should be regarded as non-matrimonial property. Holman J awarded the wife a total of just under £70 million. Referring to the concept of passive growth as defined in Jones v Jones, he observed (at paragraph 34):

“It needs to be stressed, however, that the methodology is a tool and not a rule. The overarching duty upon the court is to exercise its statutory duty under s.25 … and to exercise the wide discretionary powers conferred upon, and entrusted to, it by Parliament in a way which is principled and above all fair to both parties on the facts and in the circumstances of the particular case.”

On the facts of that case, Holman J concluded that the husband had not demonstrated that he had made a “special contribution” as defined on the authorities (see below). He declined, however, to limit the non-matrimonial assets to the figure of £4.8m based on what he called “the Jones methodology”, stating (at paragraph 42) that “instinctively” this seemed “so unfair to the husband on the facts in the circumstances of this case, and so over-generous to the wife”. Instead, he concluded (at paragraph 61):

“much greater allowance must, in fairness to the husband, be made for the history in order, to borrow words from Lord Nicholls in Miller … to ‘reflect the amount of work done by the husband on this business project before the marriage’.

He added, however:

“But, in my view, the pre-existing shares cannot, in fairness to the wife, be carved out and left out of account altogether …. They were part of the backdrop of the whole matrimonial economy; and to borrow words from Baroness Hale of Richmond in Miller … they were part of ‘the way the couple have run their lives’ (ibid).

This led him to the following conclusion (at paragraph 63):

“In my view, not as an accountancy exercise, but in the exercise of broad discretion, the only fair way to treat the remaining pre-existing shares (and the three … investment properties) is to treat them as to half as the personal non-matrimonial property of the husband, and as to half as the matrimonial property of the parties to be evenly shared.”

In WM v HM, Mostyn J returned to the argument considered but rejected by Arden LJ in Jones v Jones - a linear or arithmetical apportionment based on the respective periods of time before and after the marriage. Noting that neither of the other judges in Jones had mentioned this argument, he observed:

“I am surprised that it was so lightly dismissed or disregarded as it seems to me to provide a useful heuristic basis for analysing the issue, which if commonly adopted would have the beneficial side-effect of eliminating arid, absolute and expensive black-letter accountancy valuations of a company many years earlier at the start of the marriage”.

Having considered alternative methods of calculating the “true potential” of the company at the start of the marriage, Mostyn J concluded (at paragraph 20):

“The linear approach is the evaluation which I make in this case. It resonates with fairness. It reflects my opinion of the true latency of the business at the time that this marital partnership was formed and that, intrinsically, value is (at least) as much a function of time as it is of work or market forces. In argument, I asked ‘how could it be said that a day’s work in 1980 in creating this company was less valuable than a day’s work last week?’ In my judgment, the answer is that it could not.”

Husband’s shareholding at marriage: expert valuation

[The judge set out in detail the expert evidence in relation to the value of the company. Those details have been redacted from the published version of the judgment to prevent identification of the family. ].

Submissions on latent potential

The dramatic growth in the company during the marriage is well illustrated in the following graph prepared by Mr Kay.

On behalf of the husband, Mr Pointer and Mrs Carew Pole submitted that a wife who arrives on the scene in the second half of the exponential graph would stand to reap a disproportionate share of the financial rewards of the business if the court takes the narrow approach of subtracting the accountancy valuation as at the date of the marriage from the value at ultimate sale. To fail to give due weight to initial flat years before the J curve takes off would be unfair to the wealth creator and bestow disproportionate reward upon the claimant, because it would ignore the true value of the endeavour made by one party entirely outside the marriage partnership and, in this case, for years before the parties met. Mr. Pointer and Mrs Carew Pole submit that this is particularly germane in a case where the husband’s wealth has been generated over such a relatively short period of time. They therefore argue that, if the court declines to uphold the separazione dei beni as a binding agreement, the latent potential in the company at the date of the marriage should be reflected by adopting either the approach of Holman J in Robertson (thereby treating 50% of the value of the business at the date of sale as having been created prior to the marriage) or the approach of Mostyn J in WM v HM (thereby excluding the proportion of value in the business that was created before the marriage on a linear apportionment basis, which in this case they calculate to be 46.6%).

In reply, Miss Stone and Mr Brooks do not accept that there was a substantial but unrealised latent potential within the company at the date of the marriage. They accept the proposition that in appropriate circumstances it may be appropriate to take latent potential into account when valuing company assets at the date of marriage, but submit that such an approach can only be applied where reliable evidence exists. They submit that no such evidence is present here. At the date of the marriage, the company was making steady profits under its old model, but projections were relatively flat and the evidence suggests that the company was entering a period of stagnation..

Miss Stone and Mr Brooks rely on Mr Kay’s conclusion that there was no compelling reason for finding a latent potential in this case. They submit that it would be both intellectually dishonest and absurd to apply a straight-line graph in order to divine the value of the company’s shares at the date of the marriage, and also invite the court not to apply the alternative approach adopted by Holman J in Robertson.

Following the hearing, both sides submitted supplemental submissions setting out their respective calculations contingent on the various permutations depending on my findings. I am grateful to them for doing so. Their calculations were illuminating and helpful, but I do not think it necessary to add to the length of this judgment by setting them out in any further detail here.

It is convenient to set out my conclusions on the latent potential issue after considering the next and final matter.

Reasons for departing from sharing: (4) special contribution

The law relating to special contribution

The somewhat tortuous and uncertain history of the concept of special contributions in financial remedies cases has been recently set out at length by the Court of Appeal in Work v Gray, supra, at paragraphs 55 to 78. Counsel for both parties in this case, in particular Miss Stone on behalf of the wife in opening the case, took me through this history at considerable length. I intend no disrespect to counsel in saying that I do not think it necessary to set out the history in that degree of detail in this judgment at first instance when it has so recently been analysed by the Court of Appeal.

The first case in which a departure from the sharing principle on the grounds of special contribution was sanctioned was the decision of the Court of Appeal in Cowan v Cowan [2001] EWCA Civ 679, [2001] 2 FLR 192. The assets of the family, amounting to £11.5 million, had been accumulated through the husband’s business. Because of the husband’s special contribution, the assets were divided unequally, with the husband receiving 62%. As described by Thorpe LJ (at paragraph 2):

“It was his genius to perceive the potential of binliners which revolutionise the collection and disposal of household waste.”

The concept of special contribution was explained by Mance LJ (as he then was) in these terms (at paragraph 161):

“The underlying idea is that a spouse exercising special skill and care has gone beyond what would ordinarily be expected and beyond what the other spouse could ordinarily have hoped to do for himself or herself, had the parties arranged their family lives and activities differently. The first spouse’s special skill and effort is special to him or her, and the individual’s right to the fruits of an inherent quality of this nature survives as a material consideration despite the partnership or pooling aspect of marriage. For my part, I think that this consideration is a material one to which weight can and should be given in appropriate cases.”

In closing submissions before me, Miss Stone characterised the decision in Cowan as having opened the Pandora’s box. She asserted that, eighteen months later, the Court of Appeal attempted to put the lid back on the box in Lambert v Lambert [2002] EWCA Civ 1685, [2002] 1 FLR 139. At paragraph 45, Thorpe LJ stated:

“45.

Having now heard submissions, both full and reasoned, against the concept of special contribution, save in the most exceptional and limited circumstances, the danger of gender discrimination resulting from a finding of special financial contribution is plain. If all that is regarded is the scale of the breadwinner’s success, the discrimination is almost bound to follow since there is no equal opportunity for the homemaker to demonstrate the scale of her comparable success. Examples cited of the mother who cares for a handicapped child seem to me both theoretical and distasteful. Such sacrifices and achievements are the product of love and commitment and are not to be counted in cash. The more driven the breadwinner the less available will he be physically and emotionally both as a husband and a father. There is also some justification in Mr Mostyn’s emphasis on the extent to which the homemaker frequently sacrifices her potential to generate assets by undertaking the domestic commitment to husband and children. At the same time she risks the outcome of failure and so earns her entitlement to share in the successful outcome.

46.

In sum I am much more wary of the issue of special contribution than I was in writing my judgment in Cowan ….”

At paragraph 52 he also observed:

“there may be cases where the product alone justifies a conclusion of a special contribution but, absent some exceptional and individual quality in the generator of the fortune, a case for special contribution must be hard to establish.”

The next case in which a finding of special contribution was made was Sorrell v Sorrell [2005] EWHC 1717 (Fam), [2006] 1 FLR 497, in which net assets of around £75 million had been generated by the business activities of the husband, Sir Martin Sorrell, chief executive of WPP, the leading marketing and public relations company. Bennett J described Sir Martin as an “exceptionally talented” businessman who had displayed “extraordinary acumen and drive” and had “achieved in his business career what few others have done”. At paragraph 114, he said:

“In my judgment, the evidence establishes that the true explanation for his extraordinary success story is that the husband does possess the ‘spark’ or ‘force’ or ‘seed’ of genius, call it what one will. It was by his talents, as I have set out above, that he generated the fortune for the family …. His genius was the generator of that fortune.”

The conclusion reached by Bennett J was that the husband’s special contribution deserved recognition in the way expressed in Cowan. He concluded:

“It simply would be unfair not to recognise it. If it were ignored it would, in my judgment, create an unfair outcome.”

As a result, the husband was awarded 60% of the assets.

The concept of special contribution was considered in the speeches of Lord Nicholls and Baroness Hale in Miller as part of the House of Lords’ wide-ranging review of the exercise of the s.25 powers. At paragraphs 67 to 68, Lord Nicholls observed:

“67.

... A party should not seek to promote a case of ‘special contribution’ unless the contribution is so marked that to disregard it would be inequitable. A good reason for departing from equality is not to be found in the minutiae of married life.

68.

This approach provides the principled answer in those cases where the earnings of one party, usually the husband, have been altogether exceptional. The question is whether earnings of this character can be regarded as a ‘special contribution’, and thus as a good reason for departing from equality of division. The answer is that exceptional earnings are to be regarded as a factor pointing away from equality of division when, but only when, it would be inequitable to proceed otherwise.”

At paragraph 146, Baroness Hale, noting the retreat from the concept of special contribution in Lambert, observed:

“It had already been made clear in White that domestic and financial contributions should be treated equally. S.25(2)(f) of the 1973 Act does not refer to the contributions which each has made to the parties’ accumulated wealth, but to the contributions they have made (and will continue to make) to the welfare of the family. Each should be seen as doing their best in their own sphere. Only if there is such a disparity in their respective contributions to the welfare of the family that it would be inequitable to disregard it should this be taken into account in determining their shares.”

Further consideration of the concept of special contribution was provided by the Court of Appeal in Charman, in particular paragraph 80 of the Court’s judgment, delivered by Sir Mark Potter P:

“The notion of a special contribution to the welfare of the family will not successfully have been purged of inherent gender discrimination unless it is accepted that such a contribution can, in principle, take a number of forms; that it can be non-financial as well as financial; and that it can thus be made by a party whose role has been exclusively that of a homemaker. Nevertheless in practice, and for a self-evident reason, the claim to have made a special contribution seems so far to have arisen only in cases of substantial wealth generated by a party’s success in business during the marriage. The self-evident reason is that in such cases there is substantial property over the distribution of which it is worthwhile to argue. In such cases can the amount of the wealth alone make the contribution special? Or must the focus always be upon the manner of its generation?”

Having cited the passage from paragraph 52 of Thorpe LJ’s judgment in Lambert quoted above, the President continued:

“In such cases, therefore, the court will no doubt have regard to the amount of the wealth; and in some cases, perhaps including the present, its amount will be so extraordinary as to make it easy for the party who generated it to claim an exceptional and individual quality which deserves special treatment. Often, however, he or she will need independently to establish such a quality, whether by genius in business or some other field. Sometimes, by contrast, it will immediately be obvious that substantial wealth generated during the marriage is a windfall – the proceeds, for example, of an unanticipated sale of land for development or of an embattled take-over of a party’s ailing company – which is not the product of a special contribution.”

The court in Charman declined to identify a threshold for the likely application of special contribution. At paragraph 88, the President stated:

“Like this court in Lambert, we find ourselves unable to identify any figure as a guideline threshold for a special contribution of this character. It would, we consider, be dangerous for us to do so. However laden with qualification, the guideline might discourage a court from discerning special contribution in the generation of wealth below the threshold in circumstances, however rare, in which it should properly do so. The greater concern, however, is the obverse risk that it might encourage a court to discern special contribution in the generation of wealth above the threshold in circumstances in which it should not properly do so. While the law recognises the concept of a special contribution in the generation of wealth, there is no doubt that, following the decision of this court in Lambert, approved and developed in Miller, it keeps the concept in very narrow bounds. We would not wish a party’s claim to have made a special contribution to succeed by reference to something interpreted as effectively a presumption deriving from our identification of a threshold figure.”

Notably, however, the Court in Charman did give guidance as to the consequences of finding of special contribution. At paragraph 90, the Court said:

“Although we declined to identify a threshold for the application of the principle of special contribution, we are nonetheless prepared to respond to the judge’s postscript to the extent of offering guidance on the appropriate range of percentage adjustment to be made in cases in which the court is satisfied that the principle requires departure from equality; it is necessary however to bear in mind that fair dispatch of some cases may require departure even from the range which we propose …. We find it hard to conceive that, where such a special contribution is established, the percentages of division of matrimonial property should be nearer to equality than 55% - 45% … Arbitrary though it is, our instinct is … that, even in an extreme case and in the absence of some further dramatic feature unrelated to it, fair allowance for special contribution within the sharing principle would be most unlikely to give rise to percentages of division of matrimonial property further from equality than 66.6% - 33.3%.”

An argument based on special contribution has continued to be advanced as a reason for departure from equality in recent cases. In Cooper-Hohn v Hohn [2014] EWHC 4122, in which the husband was a highly successful investor who had generated over £6 billion, the majority of which had been channelled into a charitable foundation, Roberts J found that he had made a special contribution which should be reflected in a departure from equality. The judge asked herself five questions: (1) Can it properly be said that he is the generating force behind the fortune rather than the product itself? (2) Does the scale of the wealth depend upon his innovative vision as well as on his ability to develop those visions? (3) Has he generated truly vast wealth such that his business success can properly be viewed as exceptional? (4) Does he have a special skill and effort which is special to him and which survives as a material consideration despite the partnership or pooling aspect of the marriage? (5) Would it, in all the circumstances, be inequitable to disregard that contribution? To all of those questions, the judge’s answer was “yes”.

In other recent cases, however, arguments based on special contribution have not succeeded - see in particular Robertson, supra, X v X [2016] EWHC 1995 (Fam), AAZ v BBZ and others [2016] EWHC 3234 (Fam), Chai v Peng [2017] EWHC 792 (Fam) and WM v HM, supra. In the latter case, Mostyn J expressed the view that the concept of special contribution “should be confined to cases which are as rare as a white leopard”.

The argument also failed at first instance before Holman J in Work v Gray and the appeal against his decision was unsuccessful. The Court of Appeal did not, however, kill off the white leopard. After analysing the decisions in Miller and Charman, the Court concluded that nothing had occurred in the intervening period to show that the principles about special contribution set out in those cases were erroneous or that they caused unfairness. At paragraph 86-7, the Court said:

“there has not been demonstrated such a change in perceptions of fairness since Miller and Charman to warrant a different approach to special contribution. As the House of Lords made clear in both White and Miller, the touchstone for financial provision under s.25 of the MCA 1973 is the achievement of a fair outcome. Different people, judges included, no doubt may have different views about the fairness of the principle of special contribution but Miller and Charman provide the authoritative jurisprudence on that issue…. There is no doubt that concepts of discrimination, equality and fairness change with time, and this is reflected in the changing jurisprudence on the application of s.25 over time. In the absence, however, of any significant change in perceptions of fairness since Miller and Charman, it is not open to us to substitute any personal concepts of fairness for those reflected in the principles on special contribution laid down by the House of Lords in Miller and Charman.”

In Work v Gray, it was argued on behalf of the husband (as recorded at paragraphs 38 to 39 of the Court of Appeal judgment) that the focus should be on the contribution and not the contributor; that it was the nature or quality of the contribution which bears on the welfare of the family rather than the qualities of the person making it; and that, when considering a financial contribution, the court should give primary weight to the quantum of the wealth generated during the marriage. The qualities of the contributor may become relevant but only as a secondary factor. Thus it was submitted that the court should first consider whether the quantum of the contribution alone is exceptional and whether it has a quality which makes it inequitable to disregard; only if the quantum alone is not sufficient should it consider whether there is some other quality in the manner of the production or the quality of the contributor which rendered it sufficiently exceptional; and then assess whether any such special contribution is ‘unmatched’ by the other party. The Court of Appeal rejected this approach saying that it:

“would serve, at best, to complicate the analysis required when the court is considering whether a party has made a special contribution and, at worst, would unfairly elevate a financial contribution above other forms of contribution … The word ‘contribution’ clearly incorporates all aspects including the nature of the contribution, its consequences and the party’s role in making the contribution. The contribution has to derive from something the contributor has done. Accordingly, if the contribution does not derive from the ‘exceptional and individual quality of the contributor’, it could not be a special contribution.”

On the other hand, the wife in Work v Gray contended that financial contributions alone should not be sufficient because of the alleged discriminatory impact. It was said to be discriminatory against women because more home-makers are women and more money-makers are men. The Court of Appeal also rejected this submission, holding that it had no principled basis unless it could be shown that the departure from the sharing principle on grounds of financial contribution alone was discriminatory. The Court noted that there has only been one reported case since Charman in which special contribution has resulted in an unequal division of the matrimonial property (Cooper-Hohn) and observed that this made it difficult to sustain a submission that the manner in which is being applied currently is discriminatory. The Court further observed (at paragraph 94):

“ … the court is still mandated to consider the parties’ respective contributions. In order to ensure fairness, for the reasons articulated, in particular in White and Miller, the courts have confined the concept of special contribution so that it reflects a significant, substantive difference, which does not require extensive evidential investigation. Moreover, such significant, substantive difference gives rise to a special contribution irrespective of whether the contribution has been made by the husband or the wife.”

The court therefore concluded (at paragraph 99) that:

“the application of the concept of special contribution is confined to very narrow bounds and is not applied, in practice, in a manner which is discriminatory.”

Having conducted its analysis, the Court of Appeal in Work v Gray endorsed a succinct summary by Holman J at first instance of the guidance from the appellate cases concerning special contribution, subject to the following two amendments explained at paragraphs 102 to 3. First, Holman J, drawing on a comment made by the Court of Appeal in Charman, had stated that a special contribution requires a contribution by one unmatched by the other. The Court of Appeal in Work v Gray rejected this, preferring instead that the focus should be on the disparity of contribution and whether there is sufficient disparity to make it inequitable to disregard. Secondly, Holman J had included the word “genius” (derived from earlier cases, including Charman again), although he had described the word as unhelpful. The Court of Appeal agreed with his view and removed the word from the summary of the guidance.

Incorporating those amendments, the guidance as to the concept of special contribution as summarised in Work v Gray is as follows:

The exceptional nature of the special contribution principle is demonstrated by the infrequency in which the argument has been successfully advanced to justify a departure from the sharing principle. So far as I am aware, there are only four cases in which the argument has succeeded – Cowan, Sorrell, Charman and Cooper-Hohn. For that reason, Mostyn J may be right to describe the concept of special contribution as “rare as a white leopard”. As demonstrated by the Court of Appeal decision in Work v Gray, however, it is neither a unicorn nor, for that matter, a dodo.

Special contribution: evidence

The husband’s case in support of his argument on special contribution is set out first and foremost in his statement filed on 16 December 2016.

The husband asserts that, at the time of the marriage, the company was worth about €416 million,. Six years later, it had increased in value very substantially. The husband sold his shares for $540 million.

In his statement, the husband asserts: “I am not a person who boasts, far from it, but I believe it is incontrovertible that I made an immense, pivotal and in fact the most substantial contribution not only to the development of our teams at every stage but also to the development of the business itself so as to produce the products which were developed by the company early in its existence and which were adapted and improved so successfully … To put it colloquially, coming up with flashes of inspiration and turning them into money-making business deals is not the instantaneous cartoon image of a lightbulb switching on above one’s head. It takes an enormous amount of time, effort and research, and obtaining the right personnel and direction, the results of which I would then produce to the board when the time was right for their approval …. Assembling and managing the right people and giving them the right direction are vital ingredients to a business’s success, as is tenacity. These are the key contributions I have made to the company.”

He states: “I am the first to accept that it is not just by my efforts alone that the company achieved such success. There were many people involved, in particular LL and his team who invented the very successful products. Without the product the company would never have been successful but a potentially successful product could not be successful without proper marketing, vision and determination in an increasingly competitive market … My commitment to the company has been overwhelming. I hope it can be said objectively that, whilst many people were responsible for its success, I was above all the person who made the company so financially successful because of

The husband’s case as to the special nature of his contribution is supported by a number of his erstwhile colleagues who provide statements and gave evidence on his behalf. Of these, the most significant were LL and PP.

As stated above, LL was responsible for original design. He gave evidence, however, about the crucial role played by the husband in the success of the business. In his statement he said that:

“it was XH who made the [products] big with his marketing strategy and capabilities. He created the opportunities for the company right from the earliest stages of the company’s life and I would say that but for his approach in selecting the finest experts in their field, his entrepreneurial skills and vision in choosing the direction for the company, his management and his marketing skills, we would not have got on board our key partnerships …,”

In his statement he gave further examples of the husband’s strategic thinking, his capability to inspire and motivate, and his open management style leading to the development and maintaining of key relationships with the company’s investors. He described the enormous marketing drive for which the husband was responsible and without which the company would not have achieved its ultimate high level of success. He confirmed that it was the husband who steered the company through the successful IPO and the ultimate sale of the business to the Parent Company. LL concluded:

“Without hesitation, the one person who was the absolute key factor to the financial success of the business was XH . He drove the company in various directions which ultimately achieved this enormous sale. Of course without the product the company would not have been so successful. XH made a vital decision initially to heavily invest early into a broad set of technical, marketing and analytical capabilities that allowed us to scale our business successfully. He was the individual whose leadership in hiring skills, inspirational approach and innovation determined the business’s progression. The company’s triumph was a result of years of internal business development and XH’s recognition for the need to continually adapt and foresee where the market was leading and take risks where it was not at all certain. Quite simply, without XH’s enormous influence at The company, it would not have become what is recognised as one of the leading [redacted] companies in history ….”

PP is a partner in one of the venture capital companies which, as described above, invested in the company and remained a major investor in the company through the IPO and onto its eventual sale to the Parent Company. He was therefore able to comment authoritatively on the husband’s role in the company over that ten year period. His conclusion is striking:

“XH was the single person I would state as the stand-out figure who made the success possible. This was due to his remarkable abilities in the many facets of the business which I would state as follows: (i) his outstanding leadership qualities, confidence, control and concern, which combined to effect a highly efficient organisation; (ii) his ability to generate the proper funding for the business, including the IPO; (iii) his direction of the future development of the business, which was key to the success of the business; (iv) the organisation of the personnel and obtaining the right teams in various sectors of the business to drive it forward and the ability to keep the various components of the business all working together harmoniously.”

In her statements, the wife challenges some of the husband’s assertions about his contribution to the success of the company. She contends that he has underplayed the role of SS in setting up the company. Her recollection was that during 2007-8, the relationship between the husband and SS was very much that of business partners, with SS being in charge of both the UK and US side of the business. She does not agree that the husband came up with the concept for the product that could be used as it was, or that the company was the first company of its type to start advertising on television. She asserts that, compared to at least one other company, the company was slow off the mark to identify the scope of promoting products. She also asserts that the IPO was not perceived as a great success, pointing out that the share price dropped after flotation, that the shares continued to trade substantially below the initial offering price, and that the price paid on the eventual sale of the company valued it at more than $1 billion below the valuation at the IPO.

It is the wife’s case that the husband and she focused on their demanding business and domestic roles respectively. In addition, the husband would frequently talk to her about his business problems. They provided mutual support and shared respect for each other’s ability and capacity. The wife further draws attention to the fact that the period leading up to the launch of the company IPO, when the husband was intensely busy and frequently travelling away from home, coincided with the period when AB’s problems were becoming increasingly obvious and when she took on the responsibility for trying to find the right professional and therapy for him.

Special contributions: submissions

Mr Pointer and Mrs Carew Pole submit that this is a plain case of special contribution which should have been conceded by the wife. They rely on the point made by Thorpe LJ in Lambert, reiterated in subsequent authorities up to and including Work v Gray, that there may be cases where the scale of the fortune generated by one party is sufficient by itself to justify a conclusion of a special contribution. They submit that the exceptional sum of money made by the husband over a very short period brings this case within that category, irrespective of the personal qualities of the husband.

In addition, however, they submit that the contribution had indeed been brought about as a result of the husband’s exceptional and individual qualities. He was one of the founders of the company and held the position of CEO from its inception up to the sale of the company in 2015. He was the architect and driving force, identifying the concept and driving forward its development through a combination of vision, skill and direction of the whole enterprise. Mr Pointer and Mrs Carew Pole rely on the evidence of the husband’s colleagues as a testimony to his contribution. They say it matters not that the husband was not the technical inventor of the products which made the fortune – like Sir Martin Sorrell, and Mr. Cowan, he was a combination of the inspiration and the glue that held everything together and drove the success.

In short, the husband’s case is that, looking both at the nature of the contribution and whether it derives from an exceptional and individual quality, the contribution made by the husband in this case comes within the scope of the concept of special contribution.

Miss Stone stresses the fact that the cases in which special contribution have been successfully relied on to justify a departure from the sharing principle are few and far between. There have been only three – Cowan, Sorrell, and Cooper-Hohn. Special contribution was also found in Charman but was conceded by the wife in that case. She submits that this case does not fall into the same category. Mr Cowan and Sir Martin Sorrell were men who, through their own personal qualities (described at the time as “genius”) made outstanding contributions and made fortunes in an era before the development of the internet through which, as Miss Stone puts it, the exponential power of technology can realise exponential outcomes in terms of wealth creation. As for Cooper-Hohn, Miss Stone submits that the value of the assets dwarfs those in the instant case, notwithstanding the husband’s efforts to align himself with the figures. If this court asks the same questions posed by Roberts J at paragraph 282 of her judgment in Cooper-Hohn, Miss Stone submits that the answers are not in the affirmative as they were in that case. She argues that the facts of this case are closer to those in the other recent cases, (for example, Robertson) in which the plea of special contribution has not succeeded. She concedes that the husband has been an exceptionally good CEO. Like Mr. Robertson, he is “talented, hard-working, astute and a very good leader of the team”. Like Mr. Robertson, however, he has not been “notably innovative, revolutionary or possessed of any truly extraordinary quality”. Like Mr. Robertson, the success of the company has been a team effort. Although he led the team, he was reliant on other members, notably LL. The team did not invent something of fundamental importance, but rather spotted the opportunity opened up by others and exploited it to great advantage. In so doing, the company was not unique. Other companies were doing the same thing at the same time and in some cases earlier. The company was able to make a vast amount of money largely because of the success of one product which was invented and developed technically by LL. On behalf of the wife, it is therefore submitted that the husband has exaggerated the quality and extent of his contribution.

Miss Stone and Mr Brooks further contend that the husband’s contribution has to be seen in the context of the family and the wife’s contribution to the family. They criticise him for downplaying the extent of AB’s problems and thereby by implication the extent of the wife’s contribution. Their principal argument is that the husband has not made a special contribution but add, in the alternative, if he has, then so has the wife. It must be possible for the contribution of a housewife and parent to be “special” – otherwise, the whole concept would be discriminatory. Miss Stone and Mr Brooks submit that, if anyone is the paradigm of an exceptional parent, it is this wife and mother. Furthermore, her contribution will continue long into the future, because of AB’s disability.

In response, Mr Pointer and Mrs Carew Pole submit that, if the wife is not claiming that she made a special contribution herself, it is not permissible for her to seek to use those contributions as a shield. They say that the notion that she can use maternal contributions as a defence to a claim based on special contribution is quite misplaced. The impression formed by the husband – and the court – as to the wife’s role as a mother is not informative as to the answer to the question whether his own contribution was special.

Conclusions

Drawing all these threads together, and taking as my lodestar the dictum of Moylan J in C v C that the court's focus remains on achieving a result which is fair, I arrive at the following conclusions.

In this case, for the reasons already outlined, I have concluded that it would be manifestly unfair to hold the wife to the separazione dei beni agreement, and that no weight should be attached to the agreement in determining the division of the matrimonial assets. For several reasons, however, I have decided that the fair outcome is one that departs from the sharing principle and leaves the husband with a significantly greater proportion of the assets. I reach that conclusion for the following reasons.

First, the parties have to a very substantial extent kept their financial affairs completely separate during the marriage. As Baroness Hale observed in Miller at paragraph 153 (quoted above), “the nature and the source of the property and the way the couple have run their lives may be taken into account in deciding how it should be shared”. In this case, the way this couple chose to run their lives was to keep their financial affairs separate. This is, to my mind, a matter of considerable relevance. No doubt on occasions each party paid for things which benefitted the other, but when it came to managing their affairs during the marriage they largely kept their finances apart. In my judgment, that is a factor which the court should take into account when deciding the extent to which the assets should be shared now that the marriage has come to an end.

Secondly, the assets which grew so substantially in value during the latter years of the marriage were the husband’s business assets. The case law remains unclear as to whether such assets should be regarded as matrimonial or non-matrimonial. In the sense that the growth in value occurred during the marriage, they could be said to be matrimonial. On the other hand, the assets remained at all times in the hands of the husband. They were never pooled. In that sense, they can properly be described as non-matrimonial. Ultimately, the label does not matter. What is relevant, in my judgment, is that they were the husband’s business assets. That does not mean that they should be excluded altogether. To hold otherwise would be contrary to the decision of the Court of Appeal in Charman and, as explained above, I do not interpret the more recent decision in Sharp as providing any support for a change in approach. But the nature and source of the property is relevant to deciding how the assets should be shared. The fact that the enormous wealth at issue in this case was created through the husband’s business activity is something which must be taken into account in reaching a fair decision.

Thirdly, I am satisfied that there was a latent potential in the company not reflected in the conventional valuation conducted by Mr Kay. The ultimate phenomenal success of the company was due in part to developments and decisions taken in the business during the marriage, but it was also attributable to developments and decisions taken before the marriage – the creation of the company, the putting together of the team, the earlier activities of the company in its field, including the original product models, and the development of a marketing strategy. To a not inconsiderable extent, the later success was built on those earlier foundations. Mr Kay thought that this was not a significant factor in determining the value of the company at the date of the marriage because the subsequent growth in the business did not occur for several years after the marriage. In my judgment, however, the latent potential was there at all material times – it just remained latent for rather longer until the opportunities for growth arose.

How should this latent potential be taken into account? To my mind, with great respect to both Holman J and Mostyn J, I consider that neither the approach in Robertson (treating 50% of the value of the business at the date of sale as having been created prior to the marriage) nor the approach in WM v HM (excluding the proportion of value in the business that was created before the marriage on a linear apportionment basis) is appropriate in this case. As Arden LJ noted in Jones v Jones, the court must try to look as far as it can at the reality of what actually happened rather than proceed on an artificial assumption of a straight-line growth from the date of foundation of the business up to the eventual sale. To insist on a linear or arithmetical approach would be to fall into the error identified by Moylan LJ in Hart v Hart of imposing “constraints which are not needed to achieve, and which deprive the court of the flexibility required to achieve, a fair outcome.” In this case, adopting Moylan LJ’s approach, I conclude that the evidence does not establish a clear dividing line between matrimonial and non-matrimonial property and it is neither proportionate nor feasible to seek to determine a clear line. Instead, I propose to undertake a broad evidential assessment before deciding how the wealth should be divided. My assessment is that there was a significant, though unquantifiable, latent potential in the company at the date of the marriage which is not reflected in the formal valuation. The fact that there was such a latent potential in the company must therefore be taken into account when determining the extent to which there should be a departure from the sharing principle.

Fourthly, and finally, I am satisfied in this case that the husband’s contribution to the growth in the value of the business assets during the marriage comes within the concept of special contribution. The growth in the value of the company, and therefore of the husband’s shareholding, was due in part to the latent potential that existed at the date of the marriage, but it was also due to developments during the marriage. On any view the growth in the value of the shares during the marriage was spectacular. The increase in value was, in my view, on a scale sufficient by itself to bring this case within the concept of special contribution. But in addition I do consider that the husband’s contribution to the business during the marriage was of a quality which can properly be described as special. I accept the evidence of his former colleagues, set out above, about the crucial importance of his role. Now that the Court of Appeal has removed the word “genius” from this analysis, it seems to me plain that the contribution made by the husband in this case can be seen to be of a character to justify departing from the sharing principle. The nature of his contribution is such that it is very obviously inconsistent with the objective of achieving fairness for it to be ignored.

Taken together, these four factors justify a significant departure from the sharing principle. But in coming to a final figure, I must of course check my preliminary views against the yardstick of equality. I remind myself that, when a marriage comes to an end, each partner to the marriage is entitled to an equal share of the assets of the partnership, unless there is a good reason to the contrary. Fairness requires no less. I must be particularly careful not to undervalue the domestic contribution of the homemaker to the welfare and happiness of the family as a whole. In this case, the wife’s enormous contribution to the welfare and happiness of the family, as the home-maker and principal carer of AB, both during and after the marriage, has been and will be incalculable. She has devoted herself to the day-to-day care of a child with special needs and by doing so has freed the husband to a very considerable extent to enable him to pursue the business activities which have generated the enormous wealth now available. These are important considerations when considering the extent of the departure from the sharing principle.

In Charman, the Court of Appeal stated that “in an extreme case and in the absence of some further dramatic feature unrelated to it, fair allowance for special contribution within the sharing principle would be most unlikely to give rise to percentages of division of matrimonial property further from equality than 66.6% - 33.3%”. In this case, I have found that there are other features unrelated to special contribution which justify a greater departure from equality.

In all the circumstances, I have concluded that a fair outcome would be to award the wife a lump sum equivalent to 25% of the difference between the husband’s share of the proceeds of sale of the company in 2016 and the value of the husband’s shares at the date of the marriage as assessed by Mr. Kay, but increased to take account of passive growth applying the MSCI World Technology share index as proposed on behalf of the wife.

Final calculations

In conclusion, I turn to the final calculations.

On the various residual issues as to the valuation of assets, I reached the following conclusions.

The total assets are therefore as follows;

In calculating the value of the growth in the husband’s shareholding in the company during the marriage, one deducts from the figure of £492,557,604 (1) the sum of approximately £3.9m representing his pre-marital assets not relating to the company and (2) the figure of £28.6m representing the value of the husband’s shares at the date of the marriage as assessed by Mr. Kay, but increased to take account of passive growth applying the MSCI World Technology share index, leaving a figure of £460m.

For the reasons set out above, I have concluded that the wife is entitled to a lump sum equal to 25% of that figure. I therefore award the wife a lump sum of £115m.

In addition, I consider that the jointly-owned property in Asia, with a net equity of just under £3.7m, should be transferred into the wife’s name. Both parties proposed that the property be transferred to the wife in their respective open offers as recited above. Although the husband’s proposal about the property, which was purchased by him, was part of his overall settlement proposal as opposed to a freestanding offer, it seems to me fair that the property should in any event be transferred to the wife.

As a result of this award, the wife’s assets will be approximately £152.45m (£115m + £33.75m + £3.7m). This is equivalent to approximately 28.75% of the parties’ total assets. I recognise that, applying the yardstick, this is a significant departure from equality. In my judgment, however, for the reasons set out above, this award is in line with the legal principles binding on this court and represents the fair outcome in all the circumstances.