HC v SW

The applicant husband is represented by Alexander Thorpe KC and Joshua McEvoy. He instructs Osbornes Law.

The respondent wife is represented by Nichola Gray KC. She instructs Penningtons Manches Cooper.

This case has assets of some £86.5 million.

There is one significant issue: what part of that sum is post-marital contribution on the husband’s side. On that point in excess of £25 million turns.

There had been an issue as to the date of separation. The date has been agreed, but nonetheless issues arising from the parties’ separation played a part, unfairly Miss Gray says, of the cross examination of the wife.

There are a number of smaller issues: including, the husband’s payment of child maintenance and an add back argument of £155,000, and some mechanical points. I will deal with these at the end of this judgment.

There is, I am told agreement as to a pension share in accordance with the recommendation of a jointly instructed expert. I was not addressed on that point and will say no more on it here, other than I am told that the share is designed to achieve equality and I have no trouble in approving a pension share designed to achieve equality.

The costs incurred by the parties are £466,556 on the husband’s side and £494,373 on the wife’s side. In the context of cases of this size they are, and it is unfortunate that I should say this, at an unsurprising, even moderate level. The costs are a reminder to the court that where there is an unpredictable outcome there is likely to be more money spent on costs.

I do need to record that save for the argument over the post-separation assets the parties, no doubt with the assistance of their lawyers, have done much to agree the division of their finances. In many ways what I am doing is determining a discrete issue, large though it is, which fits into a consensual structure. That structure is the equal division of matrimonial assets.

The parties married in European Country X in 2004, having met in this country and cohabited here since November 1999. They had got engaged in 2002. They separated in 2024. It is therefore a relationship of about 24 years.

The wife is 49. The husband is 51. Both are nationals of European Country X.

There is a European Country X marital contract. Neither party relied on that in the run up to this hearing, other than agreeing to ring fence pre-acquired and inherited assets. Indeed my core bundle did not include a translation of the agreement. (There was one in the supplemental bundle.) There were during cross examination a couple of points made (one each way) on how the marital contract might affect what was being considered. Without the agreement having received proper consideration from the parties and without advice from an expert on how the agreement would impact on the outcome of this case were it to be heard in European Country X, I will not be deciding this case by reference to that agreement.

The parties have 3 children: one child (20) is at university in England, and twins aged 18 who are about to finish school in European City Y, where they live with the wife. It is anticipated that the twins will attend university in the UK.

The husband lives in Asian Country Z with a new partner, and their baby son. They are expecting another child.

The husband had worked as a banker. Initially he worked for Bank A. From 2007 he worked for a US company, Company B. In 2018 he took a job with them as head of development in Asia. The family moved with him then to Asian Country Z. In 2020 he became cohead of the business in Asia.

The husband relates that he took steps to grow the business ‘inorganically’ by acquisitions. In 2020 Business L was acquired, in 2021 Business M was acquired, and in 2025 Business N was acquired, which he tells me was a large acquisition.

In 2022 the wife and the girls left Asian Country Z and came back to London. The husband would travel to see them, he tells me, every 6 to 8 weeks. There is a dispute over the state of the marriage between 2022 and the agreed date of separation. It is agreed that divorce was discussed. Miss Gray did not cross examine the husband on what happened during the time between 2022 and January 2024 given the agreed date of separation. Mr Thorpe did explore what lay behind the physical separation in his questions of the wife. When I pressed him as to why he was putting those questions it was his case that I needed to understand that separation to understand the wife’s case that she was making an ongoing contribution to the family in the period after the 4 January 2024.

It was over December 2023 when they were together for Christmas that they agreed to start the divorce process. 4 January 2024 is the date they returned to their different homes, and so the date agreed for separation.

The joint application for a divorce was made on the 26 March 2024. A conditional order was made on the 1 October 2024.

In February 2024 the husband started to cohabit with his current partner, and they had a child in 2025.

In August 2024 the wife and the twins moved to European City Y. She tells me this was done so the twins could attend a school there and that they were unhappy with their school in London. The wife has found, she tells me to her surprise, that she likes living in European City Y and wants to stay there.

In 2025 the husband decided to leave Company B. His role had disappeared. He was offered alternative positions but he did not want them. He entered into negotiations as to the terms on which he would leave. His transition agreement was concluded in July 2025 and it was premised upon a separation date, when he would cease to work for Company B, in December 2025. He was put on gardening leave from September 2025 until the separation date. Hereafter, to avoid confusion with matrimonial separation, I will refer to the separation date as the termination date.

The husband’s case is that the negotiation of the transition agreement was extremely difficult and he had to make his case to the board in the USA. It is his case that he needed to cause the board to depart from its own rules to allow the settlement to be reached on the terms favourable to him, on which it eventually concluded. It is his case that his expansion of the Asian business, including the 2025 takeover of Business N was instrumental in securing the deal.

The transition agreement he says was favourable in a number of respects: most particularly in advancing vesting dates for restricted stock units and carry interests.

Normally Restricted Stock Units (RSUs) take 5 years to vest. The husband tells me in his written evidence that if an employee leaves before the relevant vesting dates the unvested shares are lost completely. By the negotiations he was able to bring the vesting of all unvested shares forward to December 2025 (the termination date).

The husband tells me that there are also Year Ending Restricted Stock Units (YERSUs). These take only 3 years to vest. As a result of his age, and his years of service, there would have been no question of the husband losing these, even if he lost his job. They would have vested in full on the termination of his employment in any event.

Further as part of the transition agreement he received a grant of 6,629 YERSUs in Company B shares (worth US$1.2 million), again with a vesting date of the termination date, in December 2025. These are in lieu, he tells me, of any discretionary bonus for 2025. The wife says that they were a reward for his long service (some 18 years) and good standing with Company B.

It did appear from the transition agreement itself, that in circumstances where there is a ‘termination without cause’ the rules provide for the restricted stock units to vest on the end of the employment. I made an enquiry at the start of the hearing about this and a copy of one of the RSU rules was promptly produced. That showed that once the employee has the corporate title Partner (as the husband did), then if they are terminated ‘without cause’ on their termination date there will additionally vest any shares which would otherwise vest in the next 12 months. I note that the husband has achieved more than that.

Further, and most significantly, there was an acceleration of the receipt of the husband’s carried interest in the host of carry programs in which he participated, such that they too vested in their entirety on the termination date. These would otherwise have vested over time (the duration varying from scheme to scheme) and a very significant percentage would have been lost on him losing his job.

The same clause in relation to partners enjoying 12 months accelerated vesting if they are terminated without cause as applies to the RSUs applies to the carried interest. The documents setting out the terms of the husband’s involvement in the schemes had been provided before the hearing.

Here however it is important to note that vesting does not mean that the husband’s interest becomes realisable, as it does with the RSUs and YERSUs. The vested carry is still caught by the timeframe of the relevant carry programme, and there will be receipts only when the programme falls in.

The husband was released from a covenant he had given to Company B not to compete. In return he gave an extension of a covenant not to solicit employees. I was told in opening that he was released from the non-compete clause because it was his case that he was going to take a 2-year sabbatical. The husband in evidence did in fact tell me that he thought that it was a useful concession to be released because matters might not turn out as he expected. Nonetheless he stressed to me how respectful he needed to be of Company B given their power in his business.

The parties entered into negotiations to sort out this claim back in 2024. They each provided voluntary Forms E in November 2024. The husband made an open offer in January 2025.

The claim not having resolved, the husband issued proceedings for financial remedies on the 11 June 2025, shortly before entering into the transition agreement.

I made a First Appointment Order on the 3 December 2025.

In March 2026 there was a private FDR before Simon Webster KC. The matter did not resolve.

I gave further directions on the 17 April 2026 and there was a PTR before me on the 22 May 2026.

There is agreement between the partes with the uncontroversial proposition that the date of the trial is the date for the valuation of the assets.

Miss Gray reminds me of the words of Mostyn J in E v L [2021] EWFC 60 at paragraph 73,

It is her case that here there has not been undue delay. I accept that given the chronology already described. Further she makes a point in her skeleton argument that all of the carried interests were awarded before the parties separated. (I note there is an argument about commencement dates, but using the husband’s date in relation to two policies the award is before the separation by a matter of days, in relation to a third the award is after the petition for divorce. The award, as used here, is the initial allocation, not the vesting.)

Miss Gray’s case is more subtle than to say that I should count everything at date of trial as matrimonial. She tells me (at paragraph 21 of her skeleton argument) that the court may take into account whether any of the assets which exist at the date of trial have been accrued as a result of post-separation endeavour, but there needs to be evidence of the husband’s post separation endeavour. She refers me to ED v AP [2025] EWFC 399, a decision of HHJ Hess sitting as a deputy High Court Judge as authority on this point. Indeed, the wife does herself make two concessions in relation to post-separation bonuses.

Miss Gray does draw my attention to A v M [2021] EWFC 89, a decision of Mostyn J in which, consistent with his decision in E v L, Mostyn J considers the element of carried interest which is to be considered marital is determined by the date of trial, and not the date of separation.

Mr Thorpe reminds me of what I said, having considered a number of cases both in the Court of Appeal and in the High Court, on this topic in GA v EL [2023] EWFC 206 at paragraph 74. I repeat my conclusions here (but will not repeat here the consideration of the earlier authorities):

Mr Thorpe draws my attention to Waggott v Waggott [2018] 2 FLR 406 to remind me that I should not be considering ‘an earning capacity as a matrimonial asset to which the sharing principle applies’ (paragraph 121). He tells me that the RSUs and the carry are a form of income remuneration of the husband. That which he receives after the parties have separated is therefore necessarily not to be shared.

Miss Gray, in closing, said that Waggott does not apply because carry is a ‘hybrid’ asset. That is, it is a mixture of income and capital. It cannot follow from that, even, if I accept that the carry is a hybrid asset, that Waggott does not apply to the part which is income.

It does appear to me on reflection that the difference between the parties is not fundamentally an issue of law, but one of fact. Has the husband, by continuing to work at Company B, and in the negotiation of his termination agreement created post separation assets, or has what has happened been passive growth? And how should I be weighing into the division the domestic contribution made by the wife?

I would remark that there has become something clumsy about the label, ‘matrimonial assets’ or ‘marital assets’, in circumstances where the court recognises that there may be matrimonial assets generated before a marriage and non-matrimonial assets generated after a marriage but before a divorce. I shall stick with that label.

The husband gave his evidence in a careful and thoughtful manner. I formed the view that he was honest, but I do think that he was conscious of the impact that his evidence might have and I have to bear in mind that might have influenced how he answered questions.

It does need to be remembered that both he and the wife gave their evidence on very hot days, and for a large part of the evidence they were not in an air-conditioned court.

There are three significant areas on which the husband gave evidence with which I need to deal. The RSUs, Carry, and the negotiation of his Transition Agreement.

The RSUs; the husband gave clear evidence that RSUs were granted to him only in circumstances where in the previous calendar year he had exceeded the performance which he had agreed for that year. The grants were a reward for good performance.

The husband rejected the idea that all he had then to do was to wait for the time to pass to collect the RSUs. He said that his job was a high-pressure job. He had quarterly meetings to see whether he was still meeting his performance targets, or was falling behind. If he were to fall behind he would be at real risk of losing his job.

He agreed that once the RSUs were granted he did not have to meet further performance targets specific to them before they vested but that given the performance targets he needed to meet to remain employed he was required to work hard to earn them.

Carry: the husband explained that he would receive an allocation of a potential carry interest in relation to a fund with which he was intensely involved. That would then vest over time, so long as he was employed. He explained that the amount of money that a carry would generate depended on how successful the fund was and so the carry worked to incentivise him to do well with a fund. He said again that there were no particular fund-based targets for him to meet as a condition of vesting but merely continuing to be employed meant that he had to work hard to be still employed at the vesting dates.

The husband was cross examined in particular in relation to three funds: Fund 9, Fund 10, and Fund 15, all of which had their first vesting after the parties’ separation. The husband readily conceded that he did work in relation to each fund before receiving a carried interest in it. This broke down into two parts:

He was also challenged about the dating of the start date of his carry. Two points emerged: a minor one is that there was a typographical error in one of his presentations; a more major one is that the start date that the husband records on his schedules is not the start of the fund, but the allocation to him of a potential carry interest in the fund. His case was that this was when his involvement became significant. He said he tended to remember these dates because it was often when he made an investment, into the underlying fund - something he would often be asked to do as a condition of receiving the carry interest. (These are co-investments that the parties have agreed will be divided equally). The husband was clear that the fund itself might well have existed prior to his investment into it. The prior history of the fund was not included in his dates.

The husband’s open proposal was that the wife should receive just the portion of the carry which related to the amounts that had vested prior to the date of separation. He had proposed this as a percentage (14.86%) out of the remaining carry as it came in. As a consequence the husband had not in his statement dealt with each of the 17 funds in a fund-by-fund way. He has in closing accepted that I am likely to deal with the funds on a fund-by-fund basis. Miss Gray made complaint in her closing submissions that this put her at a disadvantage. She tells me she has had to cross examine the husband on the history of the funds, and his involvement in them prior to obtaining a carry interest in them, from publicly available documents. She says this unfairness was compounded by Mr Thorpe re-examining on the husband’s historical involvement in the funds. I do not consider this complaint is material for two reasons: first, requests could have been made at any of the directions hearings for the husband to set out his prior involvement in the funds and the history of the funds prior to his involvement; second, this is no planned ambush but an adaption of open proposals in the light of views expressed by me as to the potential problems of a simple percentage approach. Taken narrowly her complaint can be technically answered in that she having questioned the husband about his involvement in the funds prior to the date he advanced as to the commencement of his interest, Mr Thorpe was entitled to re-examine on this point.

I should note further in relation to Fund 15 that the husband acknowledged that this was a peculiar bonus fund. It came about in March 2024 he had told us in his schedule (with a first vesting in March 2025). In oral evidence he agreed it was a bonus fund that arose because Fund 14 had been so successful. The document which he was taken to by Miss Gray showed that the agreement with him by which he acquired a potential interest was in fact only effective from January 2025 (and the agreement itself was drawn even later in June 2025). His reference to March 2024 was because the agreement provided for March 2024 as the vesting commencement date.

The Transition Agreement: the husband gave evidence that the negotiation period took about three months. He made one trip in person to the USA to present his case. He did not take advice from a lawyer in relation to what he might get. He said that there were three drafts of the agreement. The earlier ones did not vest all his unvested carry interests and held him to the full term of the non-compete clause. He could not remember whether he was described as someone who was leaving without cause in the earlier drafts. He said that was not where his focus was; it was on getting everything vested.

It was put to him by Miss Gray that it was obvious that he would be a leaver without cause given that he related in his statement that he had said that the restructuring of the business left his role ‘redundant’. His answer was that it was not something that he considered to be straightforward. If Company B thought he was going elsewhere they would be difficult with him. In re-examination by Mr Thorpe it was put to him that for him to be terminated without cause the termination would need to be from Company B, rather than resignation from him. He appeared to agree to that.

I was not convinced by the evidence on re-examination on this point. I note that I have not been shown a definition of ‘without cause’ termination and I note that the husband’s own words were that his role was redundant, suggesting the reality was a termination from Company B.

It was the husband’s case that he was able to successfully push back on Company B because they would feel guilty taking his away his role when he had performed it so well.

The wife; was a very different character to the husband. Whereas he was careful and thorough she was broad brush.

She was subject to a great deal of cross examination about the circumstances which caused her to leave Asian Country Z and then London. She was criticised for not properly planning for the children’s schooling.

What did emerge was that she was happy with the school the children were at in Asian Country Z, that the reason she left when she did was that the twins were about to start on GCSE courses which would run two years and she did not want to move them during it, and that she found being in Asian Country Z oppressive, particularly during Covid lockdowns.

It appeared that a purpose of the questioning was to suggest that her relationship with the husband had effectively broken down in 2022 when she left Asian Country Z. It would be right to say that it was not a happy relationship during that period until separation at the beginning of 2024, but it is not appropriate for me to consider it anything other than marital. The parties agree their separation took place at the beginning of 2024. It is usual for there to be some time when a marriage is deteriorating. I am not going to advance the separation date, or consider it as a harder date then I might otherwise have done because from 2022 the wife was in London and the husband was in Asian Country Z.

The wife was questioned about her movement to European Country Y. This apparently arose because a friend, or a friend’s child, had enjoyed an IB course at a school in that country. Sadly before the move took place the friend’s child stopped enjoying the particular school and the parties had to rethink the schooling of their children.

This was said to be relevant to weighing in the balance the domestic contribution of the wife. I would say at this stage that regardless of a less than methodical approach to the children’s schooling it is a notable contribution that the wife is making in caring for the three children while the husband is in Asian Country Z. It is of course a matter of regret for the husband that the children left Asian Country Z, but that does not take away from the work of the wife looking after them.

It is with sadness that I record that the wife did at the end of the hearing make the counter allegation that the father was a poor father. I note that allegation came after a long period of cross examination some of it in very warm conditions. It is obvious to any external person that both these parents bring different qualities from which any child would benefit.

The wife was questioned for some time about work to the parties’ London house. It was put to her that she was wanting this to happen and the husband was not. It was put to her that she often neglected what he might want in a house (a library for instance). She responded robustly that she did consult with him about the house, and that the bills were only paid by him transferring the money.

I see no reason for me to make any findings on this issue.

I have been provided an ES2 and a series of attached computation sheets to allow me to work through the necessary issues to produce a result in accordance with my findings on the issues and work out an appropriate balancing lump sum. I am grateful to counsel for providing this to me. I sent it out attached to the draft judgment in this matter, so that should there have been an arithmetic error counsel can identify it. Counsel returned it amended only to make provision for the agreed pension sharing order. As I understand it Joshua McEvoy requires particular credit for the computation sheets (which are not attached to this version of the judgment).

I intend to deal with the two big issues first: the RSUs (and some 2 points on the YERSUs) and the Carried Interest. I will then deal with a point about the husband’s 2024 compensation bonus, and the add back argument. I will then work through the more minor issues on the schedule.

RSUs and YERSUs: There are 266,851 shares in Company B held as a consequence of schemes that have come to fruition prior to the separation. It is agreed those are marital. There is agreement that 13,405 more shares deriving from YERSUs should be shared. There is argument over 67,500 shares deriving from RSUs which vested after separation. The husband says that these are all non-marital. The wife says they are all marital. There is further argument over some 6000 shares which derive from a late YERSU.

Given the evidence of the husband I must consider the RSUs partly marital and partly non-marital. The award is made to him before separation as a consequence of his exceptional performance in the previous year and the vesting occurs if he retains his employment. It is not fair to say that the growth is passive given that retaining his employment requires hard work from him.

The way of dealing with this, it appears to me, is to make an award to the wife that gives her half of the RSUs referable (on a straight-line proportionate basis) to the time that the non-vested unit was held before the parties separated as a fraction of the total time it was held before it was vested.

That is to align me with the approach taken by Mostyn J in A v M [2021] EWFC 89, save for the difference that I take the date of separation rather than the date of trial as the end of the sharing period. I differ in this way because I consider the date of separation is the date on which the relationship of mutual support which justifies sharing ceases.

There are a number of relatively narrow points to consider here:

There are, it seems to me, two further arguments that I should mention at this stage but which I will have to return to when considering the outcome as a whole, as they relate to overall fairness:

In carrying out my time apportioned allocations I have had to make some rounding. I have dealt in months, rounding down from the 15^th and up from the 16^th.

Of the 67,500 RSUs in dispute this method renders 35,388 marital.

Looking now at the YERSUs, there is agreement that they are all marital, save for (i) 3,635 units which the wife concedes were allocated as a bonus in January 2025, after the date of separation and therefore non-marital, (ii) 6,629 units which were granted on the 1 August 2025 as to which the wife concedes only 563. The 6,629 units are brought about by the Transition agreement and described as the “Company B Grant”. The wife’s position on these is that for the most part it is a payment to the husband to reflect his 18 years of good service. The husband said in cross examination that this was not right. It was referrable to the bonus that he might have expected to receive in 2025. He points to the acquisition that he made in 2025 of Business N. His account appears entirely plausible and is confirmed by an acknowledgment recorded in the agreement at the conclusion of the paragraph containing the grant, that he agrees with Company B that he ‘will not be eligible to receive a discretionary bonus payment for the 2025 compensation cycle’. I therefore consider these 6,629 units as non-marital

Carried interests: the argument here is whether the marital interest should just be that which had vested at the time of the parties’ separation, or whether it should be all the interest the husband now has given that has all fallen in as a consequence of the transition agreement. It is an argument about whether approximately £7.8 million is marital or £26 million is marital.

The way the carried interest works is that the husband is allocated a certain number of carry points. These carry points give him an interest in the profit made by a scheme above a fixed hurdle. That is the scheme needs to make profits above and beyond an amount agreed with the investors before the carry generates anything. However, it also needs to be held in mind that the allocated carry points do not all fall in in upon allocation. They vest over time. After an initial period when for most of the schemes nothing vests, they vest effectively on a monthly basis over time such that they are fully vested after several years, when it is hoped that the scheme will come to an end and realise profit. Sometimes schemes overshoot their time frame.

A vested carry interest only actually generates money when the scheme pays out.

In relation to 5 of the 17 funds in which the husband has an interest, they were fully vested at the time of the separation and there is no argument but that they should be divided equally.

In relation to 3 of the 17 funds the husband had no interest in them at the time of the separation, and so he says they are 100% his. (To be more accurate in relation to two of the three he dates his first interest to 1 January 2024, three days before the agreed separation date – no interest vested till January 2025.) As to the remaining 9 there is a varying percentage vested on the separation date depending on the terms of the scheme.

Given that the funds vest smoothly over time after, in most cases, an initial non vesting period, if I were to use the same approach to these interests as I did to the RSUs the marital interest which the wife will share in at the date of separation will correspond by and large to the interest that has vested.

There are a number of problems with this:

When I consider together the second, third and fourth points, the conclusion I come to is that it would be appropriate for me to advance the vesting by one year from the date of separation when considering the marital acquest. I do this for the following reasons:

In terms of the schedule I have entered into the relevant box as the marital interest the vested share as of December 24, having been told that the figures are accurate to the end of the month.

The net effect of my advancement of the vesting by one year in determining the marital share is to divide the approximately £26.1 million of carry as to £10.8 million marital and £15.3 million non-marital. That is, I have increased the share of marital by about £3 million.

I pause and ask why the increase is not larger, given I have provided for the wife to share in another year of vesting. The short answer is that the largest scheme, with a projected value of £9.4 million is Fund 15 and even by advancing the vesting by one year from separation no part of that carry will have vested. I ask myself again whether that is appropriate, bearing in mind this was set up as a bonus carry to reflect the fact that Fund 14 was successful. I remind myself that this is a scheme in which the husband did not gain an allocation until three months after separation and just after the petition for divorce (and that allocation was itself retrospective). The first vesting was a further 12 months later. The effective date of the agreement which gives him his allocation is January 2025. It is not I conclude appropriate for me to go further than I have in allowing the extra 12 months of vesting.

Husband’s 2024 compensation bonus: the husband wants me to take into account the cash bonus that he received in December 2024. He says this is referrable to post-separation work. Miss Gray says in relation to this bonus (a) that it should be considered net of tax, and gives me a pound sterling figure for it of £985,035 net; (b) that it must relate to a period which includes 2023 because it was made on 5 December 2024; (c) that by authority I should not allow a bonus as non-matrimonial unless it relates to a period which commenced at least 12 months after separation.

The tax point is obviously right. On the husband’s evidence I do not accept that it relates in part to 2023. He was clear that there would be an assessment of his performance over a calendar year before the end of that calendar year, and there was not anything that would change in his figures from projection to actuality over the short term. The third point I do not accept as a matter of principle: if a bonus is generated by work post-separation then that is a non-marital asset. However here the money has not been ringfenced. I am not told that there is a fund from which deduction should be made. This appears to have been money that has been used to meet the parties’ expenses. In those circumstances I do not consider it appropriate to try and pull it out now. I accept that might in principle be questionable but just as the parties appear to have adopted a practical approach to funding their expenses up to this hearing, so I will take a practical approach to this £1 million. I will consider this practical decision as a counterweight to the argument brought by the wife that I should be considering her contribution by looking after the children.

Addback: the wife complains that the husband has supported a woman who had provided him with sports massages (as the manager of a wellness centre) during his time in Asian Country Z to a total figure of £155,000 in the three months prior to separation. She makes no claim of a sexual relationship. Her case to me was that she thinks the husband was scammed. She points out that he did not seek her consent, and contrasts this position with a request she made of the husband before lending £10,000 to a friend.

The husband accepts that he did not ask the wife’s consent, and says he did not because he thought she would refuse it. He thought he was doing a good thing helping someone in a difficult situation who needed help. He had given to charity in the past but wanted here to help someone directly. The woman’s business in Asian Country Z had been destroyed during Covid lockdowns, she had children in Asian Country W, and he intended to give her money to enable her to set up a business in Asian Country W. It had ended up being more than he had expected because of problems along the way.

Given the level of wealth in this case and the husband’s income I do not consider an intended charitable gift of £155,000 is a wanton and reckless gift that should be added back. Miss Gray can rightly say that this effectively discriminates in favour of the party who has the money. They can make decisions about what to do with their money. The fact, however, that there was no mutual consent does not render a payment wanton or reckless.

CGT (including CGT in European County Y) on the FMH in England: in the preparation of the ES2 the wife asserted that there would be CGT on the FMH in the UK of £24,000 and in European Country Y (where she is now resident) of £115,940. The tax figure in European Country Y doubled during the course of the hearing, on the basis that properly considered the wife would need to meet the cost of the husband’s gain. In closing the total liability was put at €239,000.

This was a matter of significant concern to me. I had had no expert evidence on the matter of tax in European Country Y. The husband had no notice of these figures. It was a matter of particular concern to him because he wanted to argue that he should not be responsible for the wife choosing to move to live in a high tax regime, particularly in circumstances where the working out of the order would be on the basis that she would be likely to benefit from him living in a low tax regime, Asian Country Z.

As it turns out, however, I do not need to deal with this point. The gain calculations which had been produced and relied on for the calculation missed out (a) the costs of sale and (b) the stamp duty on the purchase. There is not in fact a gain to be taken into account if they are factored in.

Tax on Property R in European Country X: the wife had put into issue at the hearing the tax (in fact a demand for repayment of refunded VAT) that she had previously agreed fell to be paid on the sale of this property. Given that the property is agreed to be transferred to the husband, he would benefit from taking the tax into account. She only put it into issue on the basis that the husband did not pay the CGT on the FMH. As I have said above, that CGT has fallen away. I therefore will not consider this further.

Tax Liability in European Country Y: the wife says that she has to pay tax in European Country Y having been living there while the children have been at school. Again I have no expert evidence. Again the husband protests about the wife choosing to live in a high tax regime. I see that objection as having no weight in these circumstances. She was in European Country Y because the children were at school there. She is seeking £26,531. I would normally expect some better evidence to be produced but given the resources in this case and the circumstances which have produced the liability I will allow the figure.

The FMH, contents: this issue was flagged in the schedule of issues but I do not recall hearing argument from Miss Gray on the point. I will therefore make an indication (without having heard argument) that the husband’s proposal that he retains his personal possessions, including his books and one of the large format paintings appears reasonable. I invite the parties to agree provisions for contents.

Joint investments: the wife wants them divided equally; the husband wants two to be retained by him and one to go to the wife. The difference in value will be dealt with in a balancing lump sum. I have heard no evidence on the nature of the investments or the costs of disinvesting. I will therefore take the simple course of dividing them equally.

Transfer of Property S in England: there was an issue as to the time which the husband should have to relieve the wife from the mortgage liabilities. The wife accepted the husband’s position (12 months of transfer) in closing. I accept that.

Co-investments (contingent provision): the co-investments will require capital. When calls are made it is agreed that the first port of call will be the borrowing which Company B has arranged. That however will not cover all calls, particularly those made when the fund is winding down. These calls may be substantial. The co-investments though to be shared equally are to be retained in the husband’s name. He seeks for the wife to meet her share of a capital call when it is made, and if she does not then he should be able to buy her out of the fund at 50% of its last valuation. She does not want to take this route because she fears it will create tax for her in European Country Y. She proposes that he should pay the call on her behalf and she will pay it back with simple 5% interest when the investment pays out.

I do not think that it is appropriate for me to structure my order in order to help the wife reduce her tax in European Country Y. She will have funds to enable her to meet the call. I see no reason to involve the parties in the complications of her scheme. So I prefer the husband’s proposal.

Dividends on Company B shares: for as long as the husband holds shares in Company B which it is agreed should in time be sold and the proceeds go to the wife, he will receive dividends on them. The wife wants them paid to her. The husband says, no, on the basis that such payment will cause her to have to pay more tax in European Country Y. Potentially a lot more. On the same footing as I have set out above, that it is not for me to structure my order to help the wife reduce her tax in European Country Y, I am with her on this point. If the shares are to be hers after the division, then she should have the benefit of dividends on them.

I say at this point that I do not want to discourage the parties from co-operating in structuring the order in a tax efficient way. I welcome the fact that they can co-operate in taking steps to assist each other.

Long stop on holding of Company B shares: I believe that there remains an issue as to whether there should be a long stop of 2 or 3 years that the husband will continue to hold Company B shares for the wife. (It being agreed that if a future employer requires the husband to sell the shares the wife will agree to their sale.) These parties will be linked for a number of years in any event and I therefore see no reason to prefer the shorter time period.

Child maintenance: the husband takes the position that both parties will be wealthy, that the children will be at university and divide the rest of their time broadly equally between their two parents, and so no child maintenance should be payable by either parent. He takes the view that he and the wife should meet education costs equally. The wife considers that the children will make their home principally with her and so the husband should pay her £20,000 per child per annum (indexed). She takes the view that they should pay towards the children’s educational expenses in accordance with the proportion they hold of their wealth.

Looking at the working schedule that I have it does appear to me that I am, before pensions providing both parties with about £32 million from the matrimonial assets, and the husband has about £19 million from post-separation assets and about £1.5 million from inherited assets. So there will be approximately £53 million on the husband’s side and £32 million on the wife’s side.

I do take the view that the children are likely to base themselves with one parent when they are at university. I have been told that the eldest child has spent time in the FMH in England, which is a property that is to be retained by the mother, between terms. I have been told that the husband is intending to buy somewhere in England where he can spend time with the children, but given what has happened so far I think it most likely that their primary base will be with the mother.

Each parent has an equal responsibility to look after their children, but it is appropriate given, (i) I consider their primary home will be with their mother and (ii) the husband will be significantly wealthier, that I make some financial provision for them with her. What I propose to do is what the husband offered in his first offer: £20,000 per annum per child, till the end of a first degree, and while they are at university 50% be paid direct to the child. The order shall be CPI linked on its anniversary.

As to university costs I consider both have sufficient funds to meet them so I will require each to meet half of each child’s university fees.

I fully expect these parents to provide more for their children voluntarily.

I have put off to this stage a review of the consequences of the decisions that I have made, and I have made clear that I have reserved the right to make alterations in the light of that review.

On the basis of the decisions that I have made as to what is and what is not a matrimonial asset, and the division that the parties have otherwise agreed, there is about £64 million of matrimonial assets which are being divided equally between them. That gives them each a bit over £32 million (ignoring pensions). It requires a balancing payment from the wife to the husband of £1,247,660 as calculated by the excel schedule with which I have been provided. (The wife can meet this from her half share of the joint investments.) That is required, put simplistically, because she is retaining the matrimonial home.

There is then about £21 million non-matrimonial. This is not only the post-separation assets but also some pre-marital assets and some inheritance which has been agreed to be non-matrimonial. Most of it is the post separation assets: a bit over £19 million.

The question put broadly is whether or not it is fair for the husband to have this £19 million when in essence what has happened is that after a long marriage (24 years) and a long time working for one employer (18 years) he has been made redundant and been paid out of what he would otherwise needed to have earned over time, while the wife has been looking after the parties’ children.

The big point that I should make here is that the wife doesn’t have a claim to share in wealth which is made after the marriage breaks down. There are perhaps three more focussed points that can be made:

I accept that it is a relatively small amount (c. £1m) but I have, conscious of the wife’s provision of care for the children not deducted the husband’s 2024 bonus from the matrimonial assets.

Fairness, I must remind myself, cuts both ways. It is appropriate for me to apply the principles as I find them to be. On review, holding fairness at the front of my mind and considering all the section 25 factors, I consider that the order dictated by my determination of what is and is not a marital asset and its consequent sharing, provides a fair determination of this case.

I am aware that this judgment may leave issues for the parties to deal with when it comes to perfecting the order. Should there be further points I need to rule on (if agreement is not possible) I will endeavour to deal with them on paper.