The court considered what property should be considered in an ancillary relief claim on divorce, and said: ‘To what property does the sharing principle apply? The answer might well have been that it applies only to matrimonial property, namely the property of the parties generated during the marriage otherwise than by external donation; and the consequence would have been that non-matrimonial property would have fallen for redistribution by reference only to one of the two other principles of need and compensation to which we refer in para 68, below. Such an answer might better have reflected the origins of the principle in the parties’ contributions to the welfare of the family; and it would have been more consonant with the references of Baroness Hale of Richmond in Miller . . to ‘sharing . . the fruits of the matrimonial partnership’ and to ‘the approach of roughly equal sharing of partnership assets’. We consider, however, the answer to be that, subject to the exceptions identified in Miller to which we turn . . below, the principle applies to all the parties’ property but, to the extent that their property is non-matrimonial, there is likely to be better reason for departure from equality. It is clear that both in White at p 605 F-G and p 989 respectively, and in Miller, at paras 24 and 26, Lord Nicholls of Birkenhead approached the matter in that way; and there was no express suggestion in Miller, even on the part of Baroness Hale of Richmond, that in White the House had set too widely the general application of what was then a yardstick.’
‘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 home-maker. Nevertheless in practice . . 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.’
Judges:
Sir Mark Potter President, Thorpe LJ, Wilson LJ
Citations:
[2007] EWCA Civ 503, [2007] 1 FLR 1246
Links:
Jurisdiction:
England and Wales
Citing:
See Also – Charman v Charman CA 20-Dec-2005
The court considered orders to third parties abroad to produce docments for use in ancillary relief proceedings. The husband had built up considerable assets within an offshore discretionary trust. The court was asked whether these were family . .
Appeal from – Charman v Charman (No 2) FD 27-Jul-2006
Ancillary relief claim – very substantial assets. The court provided for a possible substantial debt by a reverse contingent lump sum. . .
See Also – Charman v Charman CA 11-Dec-2006
Ancillary relief – substantial assets – application by the respondent wife in relation to an appeal by the appellant husband from a judgment and order in ancillary relief proceedings. The judge ordered the husband to pay pounds 40 million to the . .
Cited by:
Cited – B v B (Ancillary relief: Distribution of assets) CA 19-Mar-2008
The wife appealed an ancillary relief order for equal division on the basis that the judge had failed to allow for the fact that most of the assets had been brought to the marriage by her.
Held: Her appeal succeeded. All the assets at the . .
Cited – Vaughan v Vaughan CA 2-Nov-2007
H appealed an ancillary relief order giving certain extra rights in the family property on its sale.
Held: ‘the case demonstrates that, in an ancillary relief appeal, even the most conscientious appellate judge can fall into error if, having . .
Cited – Judge v Judge and others CA 19-Dec-2008
The wife appealed against an order refusing to set aside an earlier order for ancillary relief in her divorce proeedings, arguing that it had been made under a mistake. The sum available for division had had deducted an expected liabiliity to the . .
Cited – Radmacher (Formerly Granatino) v Granatino SC 20-Oct-2010
The parties, from Germany and France married and lived at first in England. They had signed a pre-nuptial agreement in Germany which would have been valid in either country of origin. H now appealed against a judgment which bound him to it, . .
Cited – S v AG (Financial Remedy: Lottery Prize) FD 14-Oct-2011
The court considered how to treat a lottery win of andpound;500,000 in the context of an ancillary relief application on a divorce.
Held: The answers in such cases must be fact specific. ‘In the application of the sharing principle (as opposed . .
Lists of cited by and citing cases may be incomplete.
Family
Updated: 11 July 2022; Ref: scu.252522