Cowan v Cowan: CA 14 May 2001

When considering the division of matrimonial assets following a divorce, the court’s duty was, within the context of the rules set down by the Act, to impose a fair settlement according to the circumstances. Courts should be careful not to make assumptions about the roles taken by the parties according to their sex, and the test of assessing what would be the consequences of an equal division of assets serves as a useful check in avoiding discrimination, but no more. In ‘big money’ cases, the judge should also be careful not to rely too heavily on tests as to the reasonable requirements of the parties. That test was to be considered with flexibility: ‘The decision in White clearly does not introduce a rule of equality. The yardstick of equality is a cross-check against discrimination. Fairness is the rule and in its pursuit the reasons for departure from equality would inevitably prove to be too legion and too varied to permit of listing or classification. They will range from the substantial to the faint but that range can be reflected in the percentage of departure.’ and ‘But after more than 30 years of judicial tinkering it is evident to me that there is a pressing need for legislative review since reforms to match social shifts since the late 1960s cannot be achieved by the judges without trespassing beyond their legitimate junction.’
Thorpe LJ considered a suggestion that post-separation changes should be reflected in the award on an ancillary relief application, saying: ‘All the above considerations are capable of inclusion in a review of the respective needs, responsibilities and/or contributions of the parties. They cover three of Mr Pointer’s four submissions summarised in [21] above. The third, namely that much of the husband’s fortune was generated in the 6 years post-separation, receives no reflection because in my opinion it is inherently fallacious. The assessment of assets must be at the date of trial or appeal. The language of the statute requires that. Exceptions to that rule are rare and probably confined to cases where one party has deliberately or recklessly wasted assets in anticipation of trial. In this case the reality is that the husband traded his wife’s unascertained share as well as his own between separation and trial, particularly committing those undivided shares to the investment in Baco. The wife’s share went on risk and she is plainly entitled to what in the event has proved to be a substantial profit. If this factor has any relevance it is within the evaluation of the husband’s exceptional contribution.’
Mance LJ stated: ‘There are many perplexing situations that may one day require examination. What, for example, of the individual spouse who each week invests a small part of his or her spare cash in the National Lottery, and one day wins andpound;1m, or andpound;10m? Should this asset be viewed like any sudden accretion to the value of the joint home or other matrimonial investment, due to market movements? Or might it, in some circumstances at least, be more analogous to property brought into a marriage or inherited property? Would it for example make any difference, if the other spouse was opposed to all gaming as a waste of money, or if the very limited money expended came from inherited property? There appears to have been a quite extensive jurisprudence in this area in Australia, including Zyk v Zyk (1995) FLC 92-644, 19 Fam LR 797 (referred to in Lynch v Lynch (26 October 2000, unreported) (Full Court of the Family Court of Australia), cited to us). In the circumstances there, a husband’s lottery win was equated with a contribution by the husband to the joint assets, and the final award, based on the spouses’ respective contributions, was tailored accordingly. I mention Zyk’s case not to suggest that the same approach to or use of contributions would necessarily apply under the English statute-but simply to illustrate some of the problems and considerations that may one day need to be addressed in this jurisdiction.’


Thorpe, Robert Walker, Mance LJJ


Times 17-May-2001, [2001] EWCA Civ 679, [2002] Fam 97, (2001) 2 FLR 192




Matrimonial Causes Act 1973 25


England and Wales


CitedWhite v White HL 26-Oct-2000
The couple going through the divorce each had substantial farms and wished to continue farming. It had been a long marriage.
Held: Where a division of the assets of a family would satisfy the reasonable needs of either party on an ancillary . .

Cited by:

CitedMoorhead v Moorhead ChNI 11-Jan-2002
The deceased’s widow complained that her husband’s will had not made proper provision for her as was required by the order which ‘ In the case of a spouse reasonable financial provision means such financial provision as it would be reasonable in all . .
CitedLambert v Lambert CA 14-Nov-2002
The parties appealed an order for the division of the family’s 20 million pound fortune on divorce. The husband argued that his special contribution to the creation of the wealth meant that he should receive a greater share.
Held: The Act gave . .
CitedH v H (Financial Provision: Special Contribution) FD 2002
The court heard an application for ancillary relief in a divorce. The family assets were pounds 6M. The husband was a successful city solicitor. Counsel contended that for various reasons his financial accumulations during the course of his . .
CitedSorrell v Sorrell FD 29-Jul-2005
The parties contested ancillary relief on their divorce. The marriage had been very long, and the assets were very substantial. The husband contended that these assets represented an exceptional contribution on his part.
Held: In this case an . .
CitedMiller v Miller; McFarlane v McFarlane HL 24-May-2006
Fairness on Division of Family Capital
The House faced the question of how to achieve fairness in the division of property following a divorce. In the one case there were substantial assets but a short marriage, and in the other a high income, but low capital.
Held: The 1973 Act . .
CitedMartin-Dye v Martin-Dye CA 25-May-2006
The court was asked how to achieve fairness in ancillary relief proceedings on a divorce as respects pension entitlements. The parties had sufficient to allow a clean break, but the assets mixture included sums invested which would be returned only . .
CitedM v M (Financial Relief: Substantial Earning Capacity) FD 29-Mar-2004
The parties had been married for 12 years, there were three children, one with special needs, and assets of over 12 million pounds. The court considered the application for ancillary relief. It was substantially agreed that the wife should receive . .
CitedRossi v Rossi FD 26-Jun-2006
W sought to challenge transactions entered into by H anticipating ancillary relief proceedings on their divorce. Nicholas Mostyn QC J said: ‘While of course no rigid rule can be expressed for the infinite variety of facts that arise in ancillary . .
CitedS 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.


Updated: 31 May 2022; Ref: scu.147544