Mr Justice Bodey:
A. Background.
- By notice of Application dated 22nd March 2005 the Applicant wife seeks all forms of ancillary relief against the Respondent husband. She was born in 1956 and is now 51. He was born in March 1951 and is 56. For convenience, I shall refer to them as respectively "the wife" and "the husband". They were married in 1985 and separated in 2004.
- There are two children of the family, a girl who was born in 1986 and is aged 21; and a boy who was born in January 1989 and is aged 18. She is in her second year of a four year degree course at University. He is in his last year at public school. He will complete his A' Levels this month, June 2007. Thereafter, he expects to get holiday work in London before going on a course abroad until April 2008. All being well, he will go up to University in September 2008. Both children still make their home base with the wife, although they spend parts of their vacations with the husband, and, of course, make their own arrangements with their own friends.
- The wife has been represented by Mr Bruce Blair QC and Mr Howard Shaw; the husband by Mr Andrew Moylan QC and Mr Stewart Leech. Both sides have placed before me Chronologies which do not differ significantly. I adopt them for all the historical matters which are not mentioned in the much simplified chronology which now follows.
- The husband is South African. The wife is of English origin, but was brought up mainly in South Africa. In 1978, they met in Johannesburg, at about the time when the husband began to be employed in the industry in which he continues to be engaged. For the sake of anonymity, I shall refer to this industry simply as "the Industry". In 1979, aged 28 and 23 respectively, they commenced co-habitation. Neither brought any significant resources into the relationship, nor later into the marriage. In 1980, the husband was offered and accepted employment in Hong Kong. The wife agreed to go with him, giving up her then job in South Africa as a fashion-buyer. In Hong Kong, the wife set up a small export business; but she closed it in 1981 to go with the husband when he was offered a promotional move to Taipei. He was then aged about 30 and she about 25. It was from about this time that he joined the group of companies, by which he is still employed, now as a very senior executive. I shall refer to this group as "the Group".
- In 1982, the husband's employment saw the parties return from Taipei to Hong Kong, where they were later married in 1985. They continued thereafter to make their lives together in Hong Kong for the next fifteen years, the two children being born there. Once back in Hong Kong in 1982, the wife took up a consultancy position, initially full-time and later part-time; but she gave this up at around the time of the daughter's birth in 1986. In 1989, together with a female friend, she opened a small shop in Hong Kong selling decorative home products. They ran it in partnership until about 1998, by which time the financial climate for their business had become increasingly unfavourable. So they closed it down in 1998 and the wife has not worked in any commercial sense since that time.
- Meanwhile, throughout the period which the parties spent in Hong Kong, essentially from 1980 to 2000, the husband's career in the industry went from strength to strength, as it has continued to do since the family's relocation to England in 2000. This has been a result of the husband's wholehearted dedication and commitment to the group, deploying great skill and acumen, working long hours and travelling prodigiously.
- This success came at great personal and family cost. It is agreed by the parties that both of them had to make big sacrifices in furtherance of the husband's business career. His international commitments meant that he would be travelling abroad away from Hong Kong and later from England for up to 180 or 200 days per annum. During these times, the wife bore the entire responsibility of caring for the children and managing the domestic infrastructure, enabling the husband to be free to concentrate on his demanding business obligations. This is not to say the husband did not play his part as a husband and father when he was at home; but rather that he had another very absorbing focus in his life by way of his work and career. He was dependant upon the wife's complementary dedication to the smooth running of the parties' home and social life, along with her caring for and bringing up the children.
- The result of the husband's efforts, fully supported by the wife, was that the family came to enjoy an increasingly good standard of living. For much of the marriage they had three homes, two of them being holiday homes. The property which they owned in Hong Kong from 1991 to 2000 was a large and impressive residence, with splendid gardens and a private swimming pool. Concurrently (in fact from 1986 to 2001) they owned an apartment in Cape Town, South Africa. Further, from 1983 to 2006, they owned a holiday home in, Idaho, USA. For the earlier part of this period, this US holiday home was a condominium; but in 1990 they sold that and purchased instead a fine lakeside property in McCall which cost in excess of $4,200,000, including the cost of works. When it was sold in 2006, it made $9,200,000 gross, $7,600,000 net, or about £4,000,000 net.
- In June 2000 the family relocated from Hong Kong to England, a move dictated by the exigencies of the husband's employment. They sold their home in Hong Kong, and replaced it in November 2000 with what was to be their final matrimonial home ("the matrimonial home") in Holland Park, London W11, a property then and now vested in the wife's sole name. The purchase price of the matrimonial home was some £2,350,000. On top of that, substantial works of renovation and improvement were carried out (overseen by the wife and an architect) bringing the total investment in the property to some £3,300,000. The works took a considerable time to complete, during which the family lived in rented accommodation. It was not until the summer of 2003 that they finally moved in. By that time however, both parties had come to recognise that their marriage had broken down. They agreed to go to mediation with a specialist financial mediator, which continued without success until the spring of 2004.
- On 1 March 2004, the parties finally separated. That date is agreed, although the details are controversial. Factually, it was the wife who vacated along with the children, then aged 17 and 15 respectively. She had by then met and flirted with another man ("L") although upon the parties' separation, she did not go to live with him. There has been some investigation at this hearing as to when precisely her relationship with L first became intimate. I accept her evidence that this did not occur until just after the final separation on 1st March 2004. The wife remains in a relationship with L, although they continue to live separately. The husband too has a new partner. Apart from these proceedings, therefore, both parties have moved on in their lives.
- Shortly after the wife and children had vacated the matrimonial home, the husband relocated his base back to Hong Kong, where he rented (and continues to rent) a serviced apartment. This left the matrimonial home mostly empty, except for the parties' housekeeper. Therefore the wife, who was by now renting in SW10, pressed to move back into the matrimonial home. This was eventually agreed and in October 2006 she moved back. She still resides there and wants to continue to do so. Belatedly during this hearing the husband has agreed that it shall remain her asset, and not be sold, as part of the outcome of these proceedings.
- Since the separation, or at least in more recent times, the husband has been paying the wife £100,000 per annum for her own support, together with £10,000 per annum for each of the children. For the year or so that the wife lived in SW10 (from about October 2005 to October 2006) he also paid the rent on that property at the rate of about £90,000 per annum.
B. The present assets.
13. Both sides have placed Schedules of assets before me. However, the one more used in final speeches was that headed up "Husband's schedule of assets (final)". In all but one particular, (see sub-paragraph 15 below) it is an agreed document. Leaving aside certain smaller items, it comprises the following:-
(1) The matrimonial home (in the wife's sole name): £3.75 million gross; but after deduction of costs of sale and the £400,000 mortgage: £3.23 million.
(2) A property in Cape Town South Africa in the parties' joint names occupied by the husband's parents: £60,000.
(3) The joint proceeds of sale of the Idaho property (above) – net of US tax: £4.080 million.
(4) Joint bank accounts: £11,000.
(5) The wife's bank accounts (being an account containing £106,000 less a loan account for her costs of these proceedings in the sum of £366,000): (£260,000).
(6) The wife's Option to purchase a plot of land in Idaho USA: £384,000, but offset by a bank loan of a similar amount: £00.00.
(7) The husband's bank accounts: £285,677.
(8) A two-bed apartment in Cape Town, effectively in the husband's sole name, having been bought by him out of income in March 2005 (post-separation) and nominally held through a property holding company owned by him: £488,000 net.
(9) A deposit (being 30%) placed by the husband post-separation on an apartment, yet to be built, in the Fairmont Palm residence, Dubai and nominally held by his property holding company referred to at sub-paragraph (8) above: £216,000.
(10) The husband's Pegasus policies: £51,000.
(11) The husband's unpaid costs of these proceedings (the wife's unpaid costs being £30,000, but not included in the Schedule): (£152,000).
(12) Chattels: £1.256 million.
(13) Sundry recent purchases by the husband: £30,000.
(14) A small pension in the husband's name: £31,000.
(15) The husband's various shares in the group: £5.818 million or £6.468 million (depending on the rate taken for certain potential Dutch gains tax, an issue resolved at part E below).
Total (including various smaller items which I have omitted): either £15,145,000 or £15,795,000, depending on the resolution of the Dutch gains tax issue just mentioned.
- Two points arise on this list of assets. First, the husband will or should have received by now a tranche of profit-share for 2006 in respect of one of the companies in the group in the sum of £300,000. This is nominally in the nature of income and the parties have not included it in their respective Schedules; but it must be borne in mind.
- The second point on the list of assets is to do with the parties' costs of these proceedings, as appearing from their respective Forms H. The wife's total costs are £392,320. She has taken out a bank loan of some £366,000 and has used it to pay her solicitors £362,256, leaving her owing them a balance of some £30,000. The husband's costs are £331,705 of which he has already paid his solicitors £179,859 out of his own available resources. He still owes them the balance of £151,846.
- Obviously the decision as to where the ultimate burden of these costs will fall cannot be taken at this stage and I have considered whether fairness requires any notional 'adding-back' exercise to be undertaken; but I have decided it does not need to be. It is always somewhat artificial, putting back into the kitty money which is not actually available, and neither side has suggested that I should do it here. The parties are in broadly similar positions as to costs by way of the virtually agreed asset presentation, although they have got there in different ways. The overall kitty has of course gone down by the sum of the amounts already paid (funded, in the wife's case, by the amount borrowed). The only real difference between the parties presentationally in the above list is that the wife's balance of £30,000 costs due to her solicitors is omitted. That is a relatively small sum in the context of the overall figures in the case and I simply bear it in mind as an off-list liability of the wife's (subject to any other order for costs which may be made).
C. The parties' open positions.
17. The husband's proposal of June 2006, based upon a then estimated size of the kitty at £14.94 million, was that the wife should end up worth £6,843,000 on a clean break basis. This was estimated by his solicitors to represent 45.8% of the then perceived total resources. The matrimonial home was to be sold, with its net proceeds of sale being used as part of the overall distribution of the assets being proposed. The husband's justifications for this proposed departure from the 'yardstick of equality' were as follows:
(a) a significant increase in his shares in the group (both in terms of value and size of holding) between the time of the breakdown of the marriage in 2003/2004 and the time of the offer in June 2006, said to have augmented the overall kitty from around £8.2 million to the stated £14.94 million;
(b) his purchase from his 'post-separation' income of the two properties in South Africa referred to in part B above; and
(c) a reduction made by him of £390,000 from the mortgage debt on the matrimonial home by use of his 'post-separation' income (being 6 half-yearly payments of £65,000).
- The wife's counter-proposals of November 2006 were predicated upon the kitty being in the order of £22 million (a figure explained at part D below). Of this suggested kitty, she first of all sought 50% (£11 million) part of that sum being made up by her keeping the matrimonial home. Then in addition to that £11 million, she sought "… a proper element for compensation per McFarlane...." by way of an order for periodical payments in her favour at the rate of £500,000 per annum for six years (i.e. a further sum of £3 million) or alternatively, an additional lump sum up-front of £2 million.
- Whilst there has been a retreat by the wife since that time, there was thus a huge gulf of over £6 million between the competing offers, the husband proposing that the wife should exit the marriage worth £6.843 million and she, to take her second alternative, seeking to do so worth £13 million (£11 million plus £2 million).
- At this hearing, the wife's presentation has been as follows:
(a) that she should exit the marriage with 50% of the agreed existing kitty; plus
(b) a further £1 million to £1,250,000, in order to reflect the husband's likely future rewards from his the group's Share Investment Schemes (see part D below); plus
(c) a payment of £350,000 per annum for a period of five years out of the husband's prospective income, so as to compensate her for her inability to share in that income, or else for her loss of her own career prospects, i.e. a further £1,750,000 (5 x £350,000). In summary, the wife's opening written presentation proposed that she should exit the marriage worth 50% of the kitty, plus "…a Miller and McFarlane 'loading' all in of £2.7 million" on top. Alternatively, in respect of the husband's group shares, the wife proposed the use of the 'Wells' approach (Wells v Wells 2002 2 FLR 97), giving the wife a proportionate share in the husband's shares when realised. Ultimately, in his final submissions, Mr Blair QC suggested this latter solution as the most appropriate one for the shares, the wife to receive a prescribed proportion of any gain in their value between the present time and either the time of any sale, or the year 2010 (whichever should first occur); but, in the latter case, the wife's share of such gain not to be actually paid out to her until the husband should decide to realise the shares.
- There are thus three fundamental issues for determination, to which I shall revert in part J below, namely:-
(i) as to whether the wife should come away from the marriage worth 50% of the overall kitty, or worth some lesser proportion through separate treatment of the husband's 'post-separation accruals';
(ii) as to whether there should be additional 'compensation' for her loss of a share in the increased financial rewards said to be likely to come to the husband as and when he decides to realise his shares in the group, such 'compensation' being either by way of an augmented lump sum or else by a "Wells" type solution; and
(iii) as to whether there should be additional 'compensation' for the wife's 'forfeited earning capacity' (or for her inability to continue to share in the husband's ongoing earning capacity) either by way of an augmented lump sum paid in one go or by instalments, or by way of an open-ended order for periodical payments, or else by way of a 'term' order.
- Before carrying out the 'S25 exercise' and resolving these three issues I need to deal first with four discrete sub-issues, namely those at parts D to G below. There are, I should add, some other issues, but none which I regard as likely to have any significant impact on the outcome; so I do not propose to lengthen this Judgement by dealing with them. By the same token, I have been referred to several authorities, of which I have taken careful account. However, I do not consider that they impact sufficiently on the particular facts of this case to make it necessary or helpful to refer to them.
D. The current gross value of the Husband's Shares in the group.
23. The group comprises a number of holding and subsidiary companies. It trades out of 120 sites in around 30 countries.
- The husband has a number of shares in two of the companies, a South African company and a Dutch company. It is these shares which appear in aggregate at sub-paragraph (15) of the list of assets at part B above in the sum of either £5.818 or £6.468 million, depending on the rate used for notional Dutch gains tax.
- The shares concerned are the product of Executive Share Incentive Schemes set up essentially by the ultimate owner of the group towards the end of the 1990s. The objective of the first scheme as expressed in the relevant Deed is to 'incentivise' executives and to "…attract and retain skilled and qualified staff", the second Scheme Deed being similarly worded. The unusual feature of these two schemes is that the reward is not by way of dividends, nor through the ability to sell the shares at a price according to an existing market, nor according to supply-and-demand; but is rather to share in the gain (or suffer any decrease) in the net asset values of the two respective companies occurring as from prescribed dates.
- A scheme member can sell out at any time, but only by selling the shares back to the relevant company, which has a legal obligation to purchase them. As and when that time comes, the price is fixed according to the formula just mentioned. It is that formula which produces, on present net asset values, the competing figures in sub-paragraph (15) of the list of assets in part B above, depending on the rate of inherent Dutch gains tax. The shares carry no voting rights and are forfeit on dismissal for misconduct. A scheme member has to sell back them back to the company on leaving the group's employ.
- Mr Lobbenberg was instructed on behalf of the wife to consider the value of these shares of the husband. He concludes, having considered and projected forward past rates of growth in the value of the shares, that there is the potential in them to make much better future gains than could ever be achieved by any more conventional form of investment. He emphasises that, other than having to continue to work for the group, the husband need take no positive action in order to achieve ongoing growth. He points out that, even if only very small profits were made by the company in future, such that no significant dividends would be declared on normal shares (or even that such normal shares might go down in value) the net asset value of the assets in the group would still increase. With the husband's privileged position at the heart of the group, he would always be able to sell-up if he ever saw storm clouds on the horizon, a benefit seldom if ever attached to conventional shares.
- In Mr Lobbenberg's opinion therefore these unusual (perhaps unique) and advantageous features of the husband's shares merit a significant premium to be added to their current formulaic sale value. He accepts that such a premium "… is not capable of being formally valued by conventional forensic accountancy methodology", but he is quite clear that such a premium is necessary. On a 'doing-the-best-one-can-basis' he puts forward illustrative figures assuming good future trading conditions in the industry such as those which have been experienced recently, especially in 2004 and 2005. On this basis, inclusive of the suggested premium, his overall net figure for the current value of the husband's holding of shares is about £13.5 million. It is the use of that figure, in place of the formulaic figure of either £5.818 or £6.468 million (according to the rate of notional Dutch gains tax) which brought the overall kitty up to about £22 million, as per the wife's solicitors' open proposals of November 2006, referred to at part C above.
- The husband's accountant, Tim Allen, fundamentally disagrees with the concept of such a premium. He describes Mr Lobbenberg's approach as being based on pure speculation, since the values of the shares are entirely formulaic and can thus be worked out "with a rare degree of precision". There is no warrant, he says, for projecting forwards in order to ascertain current value, any more than this would be appropriate in respect of estimating the present value of a house. Further, he points out that the unrealised gains represented by the shares may go up or down according to market conditions, with the result that the shares do not represent "a one-way bet".
- I prefer Mr Allen's analysis to that of Mr Lobbenberg on this issue of attaching a premium to the husband's shares. The premium concept would inflate their value way above the amount which the husband actually possesses, or which he would receive for them if he decided to cash them in shortly after the hearing. Although his evidence was that he was not actually intending to do so, that is not the real point. Following this hearing, he is and should be entitled to sell them or some of them if he should decide to do so, in which event any order based on the attribution of a 'premium' would have been clearly over-generous to the wife. I further accept the point that if one were to value the shares now on the basis of trying to project forwards into the future then, to be logically fair and consistent, one would have to do so in respect of several of the listed assets, which would signal a descent into forensic chaos.
- I shall therefore take the value of the husband's shares as that achieved by the application of the contractual formula, which mathematically produces either £5.818 million or £6.468 million according to the Dutch tax point dealt with in part E below. It is another matter as to whether the asserted likelihood of the share values increasing in the future amounts to a resource 'likely to be available to the husband in the foreseeable future', as per the wording of S25 (2) (a) of Act. That is a point considered as part of the 'S25 exercise' undertaken at part H below.
E. The Likely Incidence of Dutch gains tax on the Husband's Dutch shares within the group.
32. – 34. [The Judge considered the evidence as to the likely rate of Dutch gains tax and determined the probable percentage, continuing]:
- I shall therefore allow for inherent Dutch gains tax at the notional rate of 12.5%, making the aggregate value of the husband's group shares (i.e. his South African holding together with his Dutch holding) £6,468,000. Accordingly, the overall present kitty, as per part B above, is circa £15,795,000, excluding the £300,000 profit share probably by now received by the husband. In broad terms, it seems fair to take the kitty as being round about £16 million, so that a 50/50 approach would leave each party worth about £8 million.
F."After-acquired assets" / "post-separation accruals": the relevance, if any, of the date of separation.
36. The husband runs the argument mentioned at part C above that the assets have increased (as indeed they have) since the separation and that this factor should be reflected in his favour. He also relies on his post-separation reduction of the mortgage debt on the matrimonial home by £390,000. I propose to take the date of 1st March 2004 as the date of separation since, although both parties agree there was a mutual recognition in the Summer of 2003 that the marriage had broken down, there is nothing to suggest that they were not still living as a family unit (though presumably without a sexual relationship) until the wife moved out.
- In support of his case concerning his group share holdings, the husband points to the wording of the Deeds of the two relevant Share Investment Schemes, which refer to 'incentivising' members for the future (and so on). He submits that this shows the basis of the Schemes to have been prospective (i.e. relating to the post-separation period of his working life) rather than retrospective (i.e. looking back in time to when the wife was contributing as home-maker and child-carer). Mr Blair submits to the contrary that, in all common sense, the Schemes were largely based upon the past dedication and commitment of the husband to the group for most of his working life, sustained as he was by the support of the wife.
- As refined within Mr Moylan's final submissions, the post-separation factors relied on by the husband are as follows:-
(a) the reduction of the loan on the matrimonial home: £390,000;
(b) the purchase of his apartment in Cape Town: £285,000;
(c) the first payment on the proposed flat in Dubai: £216,000;
(d) the acquisition by the husband of some of his Dutch shares which accrued to him as late as 2005: £1,137,000; and
(e) the acquisition by him of 50% of his South African shares, which also accrued to
him after the separation: £867,000.
The total of these sums is some £2.9 million.
- Further and inasmuch as the current value of the husband's shares is based on the increased net asset values of the two relevant companies concerned within the group, the husband points out that the boom years which produced such increases were 2004 and 2005, being mostly post-separation. Mr. Moylan recognises that even if the husband's arguments are sustained on post-separation value increases and / or accruals, the underlying assets concerned are not "ring-fenced". They remain part of the overall kitty but should not, he submits, be divided 50/50 as between the parties, since they accrued to the husband after the wife's contribution to the marital relationship had ceased.
- As I have said, I do not propose to cite from the various authorities on this topic to which I have been referred, since it seems to me that a point like this is both discretionary and pre-eminently fact-specific. Here, the key point is that the assets accruing to the husband post-separation (and the mortgage reduction) were only able so to accrue to him by reason of the wife's sustained commitment to the family and the domestic infrastructure, whilst he was making his way up the ladder of his chosen career. This applies particularly to his sizeable interests under the two Share Investment Schemes, whatever may be their formally stated objectives, and I accept Mr. Blair's above-mentioned submission in that respect.
- Without the wife's support, the husband would not have had that important role and status within the group by virtue of which he came by those assets for which he seeks differential and favourable treatment. In other words this was a financial continuum, the ground-work for which was laid and the seeds sown during the parties' married life together, through how they chose their respective marital roles. Attempted forensic distinction between the differing assets in the kitty creates issues which are in many (though not all) cases sterile. In my view, therefore, whilst the 'matrimonial property' may nowadays need to be identified, the Court should still strive to take as broad a view as possible, especially in cases such as this, where the husband's asset-accruing role has not changed in any way since the separation and where the accruals have not come from any new source of risk, endeavour, or luck.
- I conclude, therefore, that all the assets in the list in part B above fall to be considered in the same way and as at the same date, namely the date of this hearing.
G. Conversations between the parties regarding the Group.
43. – 44. [The Judge considered factual disputes about whether the husband had reassured the wife that his shares in the group would be their reward for all their sacrifices, continuing]:
- All in all, I consider that the husband is likely to have given and did give broadly the sort of reassurances about the group which the wife recollects. That is not to say, however, that such reassurances (that the group would be their 'reward') should have any impact on the outcome of the wife's application. It is not suggested that she acted to her detriment; nor that the words used nor the overall circumstances bore what, in other spheres, would be regarded as a 'contractual quality'. In any event, the group has in fact provided the parties with substantial rewards, if only in that shares currently worth £6.468 million now form a sizeable part of the kitty.
- Whilst there will be cases where specific promises or representations made by one spouse to the other will impact upon the financial outcome, this is not in my view such a case. I do not regard anything said by the husband as adding anything measurable to the merits of the wife's case.
H. The S25 considerations.
47. This application is to be determined by way of applying the S25 guidelines. There is no presumption of equality but, having considered those guidelines, the Court should test its provisional conclusions against the yardstick of equality: White v White 2001 AC 596.
- The preliminary task is to 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 whose has not attained the age of 18. Here both children are over 18, although still in full time education. Their welfare is catered for by an agreement between the parties that the husband will pay the wife £10,400 per annum per child until the attainment of their first Degrees and will pay all school and University fees. Taking S.25A(1) next for convenience, it requires the court to consider whether it would be appropriate to exercise its powers so that the financial obligations of each party will be terminated as soon as just and reasonable: and S25A(2) imports the test of "adjustment without undue hardship" to the termination of the financial dependence of the one party, usually the wife, on the other party, usually the husband.
- The other S25(2) criteria fall to be considered as follows.
'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 … etc etc' [S25 (2) (a)].
- The income and earning capacity of the wife presently comprises the interim financial support which she has from the husband (see at part A above). Upon conclusion of these proceedings, these interim arrangements will come to an end. On any view of the likely distribution of the assets, she will be a wealthy woman by the standards of most. As to working commercially, the wife has not done so since 1998 when the shop in Hong Kong was closed. There is actually no reason why, at the age of 51 and with the children more or less off her hands, she should not take up some sort of interesting work which would engage her; and, having seen her, I would not be surprised if she did so. Given the size of the overall resources, however, it is not reasonable that she should be expected to have to go out to work commercially and I do not therefore accord her an earning capacity; nor is it submitted that I should do so. Any income which she might decide to earn by her own endeavours is a matter for her and would be a bonus.
- The income and earning capacity of the husband comes from a number of sources within the group, the precise details of which do not matter. He is the Chief Executive Officer of a Dutch partly-owned subsidiary within the group, which is itself the majority owner of a Dutch shipping company. His all-inclusive income from group sources over the last few years has been reproduced into a more or less agreed schedule as follows:-
2001: £515,000
2002: £480,000
2003: £722,000
2004: £1,678,000
2005: £1,143,000
2006: £1,655,000.
- The husband's tax regime is highly advantageous, as he pays tax in Hong Kong at what appears to be an agreed rate of £23,000 per annum, a de minimis sum. What is difficult to predict though is his income or earning capacity "…in the foreseeable future", for the purposes of S 25(2)(a). His own estimates later in the schedule just mentioned are that he is likely to receive about £873,000 in 2007 and £857,000 in 2008. Clearly these predictions constitute a significant reduction compared with the three years 2004 to 2006. His justification is that the years in the first half of this decade, particularly the years 2004 and 2005, were (as already noted) a time of unprecedented boom in the industry. This was due to extensive demand from the emerging countries, in particular China. There was also some inspired and hugely successful advanced planning by shipping subsidiary of the company of which the H is the Chief Executive Officer. These points are borne out by corroborative documents, for example the group's Annual Reports for the years ended 2003 (sic) and 2004.
- The husband is well placed to comment on future market conditions in the industry, since his pivotal role in the group is to be its international 'eyes and ears'. His very function is to read forward market trends and conditions, enabling his co-executives at the highest level to implement advanced strategic planning on the basis of his advice. This is why it is such a high pressured and high risk role. His strongly expressed opinion in evidence is that the recent years of boom are likely to be followed by a period of bust, possibly over years. He says (and this is not significantly challenged) that the industry is both cyclical and renowned for its volatility, a point borne out by past company performance records before me. More specifically, the husband's evidence is that China, having been a key driver of the boom, has more recently switched roles from being a net importer of the product to being a net exporter, such that in his opinion the West is unlikely to be able readily to absorb the amount of the Chinese product now coming onto the market. For this reason, and for lesser reasons to do with the detail of the group's business, he is not optimistic about the future.
- The wife does not accept the husband's case in this respect. It is 'special -pleading'; or put more colloquially "… he would say that, wouldn't he?". Accordingly, Mr. Lobbenberg was asked on the wife's behalf to address this issue. Mr. Allen, incidentally, was not similarly instructed. Mr. Lobbenberg's opinion, based on the husband's income track-record, is that: "….it would be fair to put the husband's maintainable future income for his working life at, say, £1,500,000 per annum on average, taking one year with another and taking the rough with the smooth". The wife relies on this opinion as demonstrating a very substantial present and future earning capacity in the husband's hands, which she does not have and for the absence of which she seeks to be compensated, over and above an equal division of the existing capital.
- The wife also relies on the fact that in the husband's Form E of 19th May 2005 he significantly underestimated his likely income for the then next two years, estimating that it would be some £900,000 for 2005 (actual £1.14 million) and some £831,000 for "the next 52 weeks" from 19.5.05 (actual, for the year to December 2006, £1.6 million). Therefore she says his prognoses for the future have a track-record of being self-serving and should not be relied on. The husband accepts that he did under-estimate in the manner just described, but denies any intention to mislead.
- It is not easy to assess the reality of this point. The variations between the husband's previous estimates and the ensuing actuality are clearly substantial; but on the other hand, the estimation exercise cannot have been particularly easy. His income comes from a number of different sources within the group, aggregated to give the annual total. A largish part of it comprises profit-participation, which may not be straightforward to anticipate prior to the availability of at least preliminary accounts. Having seen and heard the husband at this hearing, including under cross-examination, I am prepared to accept his denial of any intention to mislead the wife or the court; although that does still leave extant the wife's point that his past prognoses have in fact proved unduly pessimistic.
- As to Mr. Lobbenberg, he was disadvantaged in that he did not hear the husband give evidence about his current concerns for the state of the industry going forward. He (Mr. Lobbenberg) accepts that he is not an economist, still less an expert on the industry. There is no express reference in his report to his having researched the likely future of the industry and, when asked if he had done so, he said 'a cursory amount'. In all the circumstances, I do not think I can or should attach weight to Mr. Lobbenberg's illustrative opinion as to the husband's likely future income, whether in general terms, or as to the specific figure which he (Mr. Lobbenberg) suggests.
- The working day before this case was fixed to commence, the wife's solicitors served on the husband's solicitors a Report by an expert in the industry, a Mr. B which Mr. Blair applied at this hearing to introduce into evidence. He very properly stated that Mr. B could or would not attend to speak to it, nor to be cross-examined on it. In response Mr. Moylan opposed its admission into evidence, pointing out that leave was never sought at any of three directions hearings for such expertise. He said it would create unfairness, since the husband's team would be unable to meet it with independent expertise, still less in an orderly and disciplined manner.
- In an interim Judgment delivered during the hearing, I dealt with this contested application to adduce Mr. B's report (and also with two other applications by the wife for the admission of late expert evidence). I rejected all three applications. As regards the report of Mr. B, I did so on the basis that I found Mr. Moylan's submissions wholly persuasive.
- Following that decision, the wife's team went on the internet and produced downloaded material on the state of the industry, one item incidentally by Mr. B's own firm. Mr. Blair asked me to read this material, but again Mr. Moylan objected. To save time, it was agreed that I should read it "de bene esse", without prejudice to Mr. Moylan's objection to its admissibility. This is not the place for a discourse on the admissibility of openly available internet material; nor did I receive any submissions on the point. Such material is often 'put in' on a variety of topics, frequently without demur from the other side. However, except where it purports to go in some way to the facts, the material remains in the nature of expert evidence emanating from a purported fund of expertise possessed on the topic by whoever posted it on the net. If it is contentious material, then it must require leave to introduce it. The other side can then put in contrary expert evidence (if so advised) and the issue can be properly case-managed to a fair resolution. Here, as I have said, no such prior permission was sought.
- In my view, the internet material creates a similar risk of unfairness to the husband as the report of Mr. B would have done. However, given the view of it which I have formed, I consider that the simplest and most pragmatic solution (although not at all the most logical) is to admit it, now that I have in fact read it. Having done so, I do not find it contains any real or solid support for the wife's case about the future of the industry. Some of it is not straightforward to interpret without proper expert explanation and in any event it contains quite mixed messages, some referring to fairly sound growth-prospects for the future, but others being actually quite supportive of the husband's case. For example, I note references to growth rates in and after 2007 "….. almost certainly below the figures recorded in the previous two years". I read of China becoming a net exporter of the product in 2006 (as the husband has said) and of the industrial nations "... exhibiting more modest real growth conditions".
- I should also record in this context the trend of the 'net profit' figures of the company of which the husband is Chief Executive Officer as it has been over the last few years. Although the currency is not stated in terms in the document concerned, it is the trend which matters:
Year to June 2003: 18,000,000
Year to June 2004: 64,000,000
Half year to December 2004: a rate of 78,000,000
Year to December 2005: 77,000,000
Year to December 2006: 39,000,000
Year to December 2007 (est): 40,000,000.
These figures indicate a considerable deterioration for the years 2006 and 2007 (as estimated) when compared with the previous three years in the list.
- Ultimately on this question of the husband's likely future income, I have to do the best I can on all the information available, including what he has said himself in evidence and under cross examination. I have to bear in mind that he has been wrong before, in ways which favoured his own case. Having carefully listened to what he had to say, I do not however consider that he is now trying purposely to mislead the court in expressing his present views as to the future. The dynamic of China's past role in the boom and of its now having moved from importer to exporter is established in independent material and it makes sense for the husband to be cautious as to how such a reversal of a key driver may impact on world markets. The untested internet material, in my judgement, lacks the weight to trump the husband's own views (once accepted as being genuine) given his intimate knowledge of the subject matter, both generally and in respect of the group itself.
- Therefore, whilst I acknowledge that I may be proved wrong, I am prepared to accept that the husband's income may suffer a downturn and perhaps even very broadly the sort of downturn which he has predicted. His estimates for 2007 and 2008 are respectively £873,000 and £856,000. However these estimates are stated as being on a 'conservative basis' and they also exclude any dividend income, which ran at £75,000 in 2004, £67,000 in 2005 and £125,000 in 2006. In all the circumstance and doing the best I can, I propose to take the husband's 'going- forward' income as likely to be something broadly approaching £1,000,000 per annum, effectively net.
- As regards the likely period into the future over which the husband will go on working, he spoke of retiring at 60. That would give him about three more years. However having seen and heard him, he is evidently an energetic and talented individual. He can if he wishes go on contractually until he is 70 and I daresay that in practice (like anyone else with choices) he will review the situation in due course as he goes along. He is likely to consider the then state of the group's business; whether he is still finding the work stimulating; his then financial needs, obligations and ambitions; his then health; the then state of personal life and so on. All this is totally unpredictable. The best I can say is that subject to his health (and there is nothing to suggest it is not good) he can if he wishes go on working into the relatively indefinite future, say into his low to mid sixties and would be likely to do so if he felt that his finances needed it.
- The property and other financial resources which each of the parties has or is likely to have in the foreseeable future.
The only significant item here additional to the list of assets at part B above is the highly contentious one as to whether the husband's shares in the group Investment Schemes, currently valued at £6,468,000, are likely to rise in value in the foreseeable future. I have already discussed Mr. Lobbenberg's views on this. The husband himself expressed himself as being 'hopeful' that his shares would continue to rise in value, but he was careful to add that this was entirely speculative. I have referred above to his expressed concerns as to the possibility of deterioration following the boom years of 2004 and 2005, driven in part by the uncertainty of the change in China's role from importer to exporter.
- One other factor which may (or indeed may not) have an adverse impact on the value of the husband's South African shares is that they are now subject to a form of compulsory partial re-distribution under South African 'black empowerment' regulations. As of the year ending December 2006, he hopes and thinks that their value will in fact have gone up, which would increase (unquantifiably) the value used for the list in part B above based on the year ending 2005. But what effect the South African re-distributive measures will have in the future is still somewhat in the air.
- It seems to me reasonable to conclude that in the future the value of the husband's shares will probably increase, since from everything I have read the group seems to be large, in good fettle and competently managed. Quantification however is so unforeseeable as to be impossible. I have no idea and no way of telling how much more than at present his shares are likely to become worth. That is no doubt why Mr. Blair realistically submits that the 'Wells' approach would be the best solution, enabling the wife to receive a further sum (if any) on the coat-tails of the husband, according to the enhanced rewards (if any) actually received by him in the future.
The financial needs obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future [S25(2)(b)]
69. Both parties come out similarly under this paragraph. Their needs are logically the same, namely to have comfortable accommodation and a decent income, with as much capital as possible behind them. Having regard to the extent of the overall resources and the long family track-record of secondary accommodation, both can also reasonably expect that sort of lifestyle to continue for the future. Both have the liabilities discussed above, essentially as regards their costs of these proceedings, depending on any such costs order as may be made.
The standard of living enjoyed by the family before the breakdown of the marriage [S25 (2)(c)].
70. The wife's case is that it was truly luxurious, in support of which she gives a number of examples. These include: the concurrent ownership of their three properties, namely in Hong Kong (latterly England) South Africa and the USA; very nice holidays; first class or business class travel; fine restaurants; designer clothes; fast cars and so on. Her budgets for the future prepared for this hearing (as adjusted to extract non-recurring items) have ranged from £141,000 per annum in 2003 (before she moved out of the matrimonial home) to £185,000 per annum, as per her Form E in 2005 (after a year of independent living) and rising to £281,000 per annum (at the time of this hearing).
- The husband does not accept the extent of the luxury asserted by the wife: they lived very well, but not prodigiously or ridiculously. To seek to demonstrate his point, he prepared figures for the family's expenditure in their last year in Hong Kong before coming to the UK. On the face of it, those figures do show dramatically less expenditure than the wife's above budgets. In response she says that the family's last year in Hong Kong was not representative, in that she was not making many purchases pending the planned relocation and that she was away from home a lot preparing the ground in England. Anyway (she says) not all the family's regular outgoings are included in the husband's figures. In my judgement, the wife makes out her case as regards the husband's schedules for the last year in Hong Kong, thereby neutralising their probative value.
- Conversely, I consider that the husband dealt well with some of the wife's examples of luxurious lifestyle (e.g. the hiring of the former Onassis yacht). I also detect an element of 'self-serving' in her evidence generally. For example, she said in her statement of 5.12.2006 that she had been in a relationship with L for "…just over 2 years", when in fact she had been so by then for 2 and three quarter years. Then in her January 2007 statement, she said that it was "only much later" than her moving out on1st March 2004 that her relationship with L developed; whereas, in fact, it happened at virtually the same time. She also stated that "the entire family" knew L before she began her relationship with him; whereas it is now common ground that the husband had only met him once. These statements of the wife's were self-servingly inaccurate. By way of one further example I note that, in her same (2007) statement, the wife describes the former matrimonial home as being a house "…at the top end of the market". There is I think an element of hyperbole here in respect of a house in London worth £3.7 million gross. It is clearly a very pleasant and a valuable property, but the 'top end of the market' nowadays in London is in a different bracket.
- Accordingly, the wife's statements as to the family's past standard of living need to be viewed with some caution and I consider that there is broad merit in what the husband has said on the topic, even though his worked examples were successfully shot down. Doing the best I can, I find that the standard of living enjoyed by the parties was indeed very comfortable, but not within the extravagant or very highly luxurious range for which the wife contends.
The age of each party and the duration of the marriage, together with any physical or mental disability of either of the parties [S25(2)(d)(e)]:
74. There is nothing further to be said here.
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 contributions by looking after the home or caring for the family [S25(2)(f)]:
75. Again, these considerations are covered above. Both parties contributed to their utmost in their different ways. In the foreseeable future, the wife will continue to make a home-base for the children, but to a decreasing extent as they increasingly live their own lives. The husband will continue his financial support for them by his efforts at work, for so long as they need it.
Conduct [S25(2)(g)]:
76. Neither side raises this.
The value to each of the parties of any benefit which by reason of the dissolution or annulment of the marriage that party will lose the chance of acquiring [S25(2)(h)]:
77. This does not add anything to the matters covered elsewhere.
I. The competing arguments in respect of Miller and McFarlane.
78. Both sides referred to Miller and McFarlane 2006 2 AC 618, where the House of Lords identified the underlying strands which feed the concept of fairness. Those strands were stated (non-exclusively) as being needs, compensation and sharing.
- Concepts of needs and sharing are relatively straightforward in the ancillary relief context; but that of compensation is inherently more difficult. For one thing, compensation usually considers only the position of the person who has suffered some detriment, regardless of the ability of the other person to pay. That is the antithesis of the exercise in ancillary relief, which involves striking a fair balance in the context of a finite kitty.
- Lord Nicholls said of compensation at paragraph 13 that it "…is aimed at redressing any significant prospective economic disparity between the parties arising from the way they conducted their marriage. For instance, the parties may have arranged their affairs in a way which has greatly advantaged the husband in terms of his earning capacity, but left the wife severely handicapped so far as her own earning capacity is concerned. Then the wife suffers a double loss, a diminution in her earning capacity and the loss of a share of her husband's enhanced income."
- At paragraph 149 Lady Hale stated: "….the economic disadvantage generated by the relationship may go beyond need, however generously interpreted. The best example is a wife like Mrs. McFarlane who has given up what would very probably have been a lucrative and successful career. If the other party who has been the beneficiary of the choices made during the marriage is a high earner with a substantial surplus over what is required to meet the other party's needs, then a premium above needs can reflect that relationship-generated disadvantage." She had earlier observed at paragraph 142 that: "….the breadwinner's unimpaired and unimpeded earning capacity is a powerful resource which can frequently repair any loss of capital after an unequal distribution….".
- Having then referred to cases where a roughly equal sharing of the assets (with no continuing claim one against the other) would be fair, she went on to say: "… in general, it can be assumed that the marital partnership does not stay alive for the purpose of sharing future resources, unless this is justified by need or compensation. The ultimate objective is to give each party an equal start on the road to independent living…"; and resuming that theme later, when addressing specifically the McFarlane case, she said at paragraph 154: "…there is obviously a relationship between capital sharing and future income provision. If capital has been equally shared and is enough to provide for need and compensation for disadvantage, then there should be no continuing financial provision."
- The dicta in Miller and McFarlane assist in focussing the mind of the decision-taker about to give the melting-pot of S25 factors a stir. Such guidance highlights the underlying components which inform the intuitive notion of 'fairness', the ultimate objective of the process (White v White 2001 AC 596). However, it is important in my judgement that these strands underlying 'fairness' do not become elevated into separate 'heads of claim' or 'of loss' independent of the words of the statute. If such an approach were to gain momentum, there would be a real danger of double-counting, against which the House of Lords expressly warned in Miller. It remains the statutory criteria which ultimately guide the court's overall discretion by the exercise of which fairness is sought to be achieved.
- Both sides highlight differing observations in Miller and McFarlane to bolster their respective cases. Mr. Blair refers in particular to the loss which he submits the wife has suffered from giving up her own possible career as a fashion-designer and from being unable to share in the husband's likely future income. He prays in aid the above references by Lady Hale to a breadwinner's earning capacity as being a "powerful resource" and to each party having "…an equal start on the road toward independent living". He relies on her observation that "….giving half the present assets to the breadwinner achieves a very different outcome from giving half the assets to the home-maker with children".
- Mr. Moylan submits in response that one half of the kitty, whatever the decision on post-separation accruals, would be ample here for each party to go forward comfortably into financial independence. Since the wife never had an established career, he says, she cannot show any economic disadvantage generated by the relationship. He compares and contrasts the facts of this case with Lord Nichols' observation at paragraph 92 in Miller and McFarlane that: "…this [Mrs. McFarlane's case] is not a case where the wife's future success was a matter for speculation. Speculation of this character is seldom helpful."
- If the wife here is given more than a 50/50 division then, according to Mr. Moylan's argument, such will logically have to follow in almost every case where the husband earns more than enough to cover his reasonable requirements and where the wife does not have any (or much) income, as it will always be a given that she would not have "an equal start on the road to independent living". It would be a bizarre consequence of the observations in Miller and McFarlane, he submits, if in such cases wives are now to leave the marriage with a greater than 50/50 share: it would not be to apply the yardstick of equality, but rather a yardstick of inequality favouring wives. Last, Mr. Moylan stresses the several parts of the speeches of the House of Lords which emphasise the importance of a clean break wherever possible.
J. Conclusions.
87. My conclusions on the three main contentious issues identified at part C above now follow. I am conscious that by dealing with issues (ii) and (iii) separately in this way, I may appear to be according them the very 'head of claim' status which I said in part I above should not in my view be encouraged. I think this is difficult to avoid however when (and I do not mean this critically) arguments are deployed in such a way as to seek to augment or reduce a 'conventional sharing' of the assets by praying in aid the 'strands' identified in Miller and McFarlane on the question of overall fairness. All one can do is to repeat that, whatever factors underlie and inform the ultimate determination in any given case, it remains one based essentially on an exercise of discretion which should remain as broadly based as the statute envisages.
(i) Whether the wife should come away from the marriage with a 50% share of the kitty, or some lesser proportion?
88. This was a marriage of some 24 years duration (including the period of pre-marriage cohabitation) producing two children. As I have said, both parties contributed to the best of their abilities in their different ways and will continue to do so a little longer in respect of the children, to a decreasing extent. I can therefore see no good reason for the wife to come away from the marriage, as the husband contends, with any less than an equal share of the available resources.
(ii) Whether the wife should be 'compensated' for her future inability to share with the husband in the special financial advantages of his shares in the group.
89. Since I have found the likely increase in value of these shares in the foreseeable future to be wholly unpredictable, it follows that a quantified award for the wife could not be made. If her case succeeds in principle on this point, it would have to be via the 'Wells' route.
90. However, I have come to the conclusion that the wife's argument in this respect is not made out. The current value of the shares will be divided equally (conceptually, not literally) between the parties as part of the overall division of their resources. This is because the shares go to make up the overall kitty. Whilst it is true that the wife's contributions to the welfare of the family helped place the husband in a position to acquire the shares, the proposed asset division will give her the same proportion of them (conceptually, not literally) as him. She may, for all one knows, take away her half share of the resources and deal with them successfully to produce increasing wealth of a presently unquantifiable amount, just as the husband's shares are likely (as found) to increase in value. Take, for example, the matrimonial home, which the wife is to keep. It may be that it will increase in value more dramatically (given London property prices) than e.g. the husband's properties in Dubai and Cape Town, which anyway have much lower current base values. How might such a factor as that be brought into account, if the wife succeeded on her claim to a share in any future increase in the value of the husband's shares? It is difficult to see that it could be, except by tying the parties together for the future in a manner (e.g. by some formula) which would be complicated, disproportionate and unacceptable.
- In short, a line has to be drawn in terms of the current capital, with the parties being enabled as far as possible and fair to get on with their lives (financially and generally) independent of ongoing ties. I therefore reject the wife's arguments for a share in the likely future enhanced value of the husband's shares in the group.
(iii) Whether the wife should be 'compensated' for her perceived lost career prospects and / or for her inability to share in the "powerful resource" which is the husband's earning capacity?
92. I say straight away that the wife does not to my mind succeed in demonstrating any significant lost career prospects, certainly not for which 'compensation' should be factored into the outcome. Such prospects as there were are in my view far too speculative. In any event, a wife with (if I may so describe them) 'ordinary' career prospects which are forfeited following her marriage to a husband who is or becomes a financial high-flyer, is highly likely to have been adequately 'compensated' for that forfeiture by the very fact of an equal division of the family's resources.
- This leaves only the factor of the husband's likely future income stream, estimated above at getting on for £1 million per annum net, much more than that needed objectively for the requirements of a very comfortable lifestyle. Would it be fair to ignore this feature, bearing in mind first and foremost the wife's "needs" (generously interpreted) and also that she provided the domestic infrastructure and support which enabled the husband, through talent and hard work, to have that likely future income?
- This is an area of some difficulty which, although not arising directly for determination in Charman v Charman [2007] EWCA Civ 503, led the Court of Appeal to say this:
"Irrespective of whether the assets are substantial, likely future income must always be appraised for, even in a clean break case, such appraisal may well be relevant to the division of property which best achieves the fair overall outcome. We appreciate that remarks of Baroness Hale in Miller, at [154], are also said to permit argument that a party's earning capacity is itself an asset to which the other has contributed and which might to some extent be subject to the sharing principle; this seems to us an area of complexity and potential confusion which in this case it is unnecessary for us to visit."
- Reluctant though I am to venture into any area of complexity or potential confusion, the financial ingredients of the instant case require a decision to be taken. My conclusion is that it would not be fair here to ignore the big income imbalance. Some recognition is required of the fact that the wife's half share of the overall resources is 'all' she will have to provide for her reasonable needs in the context of the overall resources; whereas the husband will have the same share of the assets plus the likelihood of a very large ongoing income, much greater than his generously assessed reasonable requirements.
- How is that imbalance to be resolved, or mitigated, and by what quantification? The most straightforward and least controversial way is to link the required recognition, if the figures permit, to the degree of generosity of the assessment of the wife's reasonable requirements - an approach which brings me back to the figures. The former matrimonial home (£3.75 million gross, £3.2 million net) is a large house with four double bedrooms en suite. There will come a time soonish, as the children come to depend on the wife less than they do now, when it will be objectively larger than she needs; and she will be able to trade down, should she so wish. Whether or not she decided to do so, would be a matter for her.
- She has put forward the suggestion that she ought to be enabled to purchase a holiday home in Idaho at a cost of £2,500,000. On the overall figures available, if she is to keep on the former matrimonial home and also have a reasonable investment fund for income, that seems an excessive aspiration to me, although how she actually chooses to spend her award is again up to her. I would suggest a more reasonable notional approach would be a second home more in the region of £750,000, which would bring her 'bricks and mortar' net worth up to the sum of about £4 million.
- As to the wife's income requirements, I have to bear in mind the comfortable but not prestigious standard of living which I have found the parties used to have, remembering too that some diminution of lifestyle quality is usually to be expected on marriage breakdown. Doing the best I can, on largely uncertain and disputed figures, I consider that a reasonable income for the wife would be of between £140,000 and £170,000 per annum net.
- Pausing there, an issue arose in the final speeches as to whether the wife can receive an annual stream of money free of tax, Mr. Moylan submitting that she will or may be able to do so. This is because it is possible that she would be regarded by the U.K. Inland Revenue as domiciled in South Africa, although resident here. She already has offshore accounts and has taken expert advice in this respect. With skilful money management, she may be able to live off offshore capital, by importing it in tranches into this country untainted by income, thus postponing the need to pay UK tax until her offshore funds were exhausted. This possibility, however, is not accepted by Mr Blair on the wife's behalf: and the practicalities of it were only just touched on in the evidence. I consider that solid expert support for the husband's contention is required, showing it to be at least a serious "runner", before the Court should make a finding that the wife is able to receive incoming monies for her support free of UK tax. No such support is before me. If it turns out that the wife can in practice so organise her affairs, then so much the better for her; but for the purpose of this Judgement, I shall assume that her income from capital will probably suffer tax.
- Calculations before me suggest that in a UK tax environment the Duxbury lump sum necessary to produce £150,000 per annum net would be £3,591,826; or for £175,000 per annum net, the sum of £4,242,685. Those Duxbury figures conventionally presuppose the wife's spending her way through all her capital so that it would all be gone at the end of her life expectancy, taken to be of 38 years. It is quite difficult here to see the fairness of the wife having to spend through all her capital when, given the husband's very large ongoing net income and the possibility of his working many more years if he wishes, he will not have to do the same.
- On my calculations, a tentatively assessed investment fund of £5 million invested at 5% (with the wife not spending through any of the capital) would produce for her something approaching £160,000 per annum net. That would in my view meet the wife's present spending 'needs', giving her as it would an overall household income of £180,000 or so net per annum for so long as the agreed periodical payments for the children continue. Admittedly the assumed level 5% rate does not factor in anything for inflation, and admittedly the wife may in fact have to spend through some of her investment capital, since a proportion of her award (£563,000) will comprise her agreed share of the chattels. However, such points are mitigated by the fact that in the longer term her spending requirements are likely to reduce and that she will in due course be able to 'trade down' the former matrimonial home should she so wish; also by the fact (as she accepted in evidence) that she will probably move away from England eventually to where the cost of living may well be rather lower. So I think these various factors regarding her income requirements largely cancel themselves out. Plainly if she chose to spend through some of her capital systematically so as to augment her investment income, then she could achieve something more approaching the greater spending power to which her later budgets aspire.
- Adding that predicated £5 million investment fund to the wife's £4 million bricks and mortar fund already discussed would produce an overall requirement in her hands of about £9 million, £1 million more than her predicted worth following an equal distribution of the existing assets.
- When I stand back from the case, viewing it in the round and testing it against the yardstick of equality, that sum of around £9 million strikes me as a fair outcome, giving primary recognition to the wife's reasonable requirements and remembering too, as a subsidiary factor, how the husband was assisted towards his high likely future earnings by her past contributions on the home front. Two other factors must not be overlooked though. The first is that in order to make those future earnings, the husband will have to continue to undertake stressful and demanding work into the future, unmatched by any ongoing contribution thereto by the wife. The second factor concerns the allocation of the assets in specie. Those likely to come to the wife will be in the solid form of the matrimonial home (£3.23 million net); plus her share of the chattels (£563,000); plus the cash (£4,080,000) representing the net proceeds of sale of the Idaho property. The bulk of the husband's share of the assets on the other hand will made up of his shares subject to the Share Investment Schemes. They are not without some risk attaching. Further, although he is legally free to realise those shares (or some of them) at any time to raise cash for his requirements of life, I accept his evidence that he will be reluctant to do so (unless he has to) whilst he remains pivotally involved within the group. Such reluctance is reasonable. So, when reviewing the overall outcome, it must be borne in mind as a factor that in practice the wife will have received the 'freer' and more secure of the available assets, compared to those with which the husband will be left.
- I accept that, in pursuit of overall fairness, the quantification of an additional capital sum to reflect large imbalances of future earnings is at risk of seeming somewhat arbitrary, although it does correlate here with the wife's overall reasonable requirements as assessed. Some element of arbitrariness may be difficult to avoid in circumstances where former spouses can and should be made independent of one another, but where (a) there is a big income imbalance, with a clear surplus above the generously assessed needs of the breadwinner (say the husband) and where (b) the historic contributions of the homemaker (say the wife) must logically have contributed to the husband's ongoing prosperity for the rest of his life. Absent 'need' or some special circumstance, an approach of retaining the financial ties indefinitely, in an attempt to reflect the lifelong benefits bestowed on the husband by the wife's past marital support, would run unacceptably contrary to the valuable and important concept of the "clean break". Again therefore (unless it is fair on the particular facts and figures to have the ongoing tie of periodical payments) there has to be a line drawn somewhere when there exists a large one-sided 'surplus' of ongoing income, the precise whereabouts of which line can only be drawn by a discretionary assessment of the fairness of the overall outcome on a case by case basis.
- I do not anticipate too much difficulty in the party's agreeing the actual allocation of the assets in the existing kitty so as to produce a 50/50 outcome, nor as to how exactly the additional £1 million is to be paid. My provisional view is that it should not be paid by way of periodical payments as a 'term' order, nor even with a final 'cut-off' provision; but rather that it should be paid as a lump sum by instalments, out of the husband's anticipated income over the next (say) three years, i.e. at the rate of £333,333 per annum. However, I am open to argument on this, since the parties may have their own preferences. There will be liberty to apply in these respects and on costs. There may be scope for the husband, should he wish to do so, to pay upfront the additional capital sum (i.e. that over and above the sum necessary to go towards creating a 50/50 division) thereby attracting a discount. That too can be as agreed, or can if necessary be assessed by the Court, if the principle of it is agreed.
- I recognise that the downside of the lump sum being paid by instalments out of future income would be the risk that (contrary to expectations) the husband's income suffers some really dramatic downfall, to lower than the sort of figures which even he himself has predicted. This looks very unlikely; but if it should happen, he would of course be able to apply to vary the instalments. Subject to submissions to the contrary, finality is probably better than any sort of order containing variable periodical payments, even with a final cut off.
- I end this Judgment by observing that this case brings together three particular features:- (a) very considerable wifely contributions, as a result of the husband's working away from home to such a large extent; (b) a very substantial likely net income in the husband's hands for the foreseeable future, well beyond that needed for his generously assessed requirements of life; and (c) a total current kitty rather insufficient, in my judgement, for a straight 50/50 division to be regarded as a wholly fair outcome in the overall circumstances. If these coincident factors had been much different, then so too would have been the result.
