Lkw v. Dd
Read the full judgment text of FACV 16/2008 on BabelCite. This Court of Final Appeal judgment was delivered on 12 November 2010 before Bokhary PJ, Chan PJ, Ribeiro PJ, Hartmann NPJ and Lord Neuberger of Abbotsbury NPJ.
Family law – matrimonial proceedings – ancillary relief – financial provision on divorce – section 7 Matrimonial Proceedings and Property Ordinance (Cap 192) – 'reasonable requirements' principle – 'equal sharing' principle – appeal from Court of Appeal (CACV 91/2007) – parties married in 1996, separated in 2003 after seven years, no children – wife graduated from Tsinghua University, worked until 2003 earning HK$28,000 per month – husband ran a small business and received 13 months' pay per year, earning not less than HK$19,200 per month – husband failed to make proper disclosure of his assets at mediation – District Judge found husband's total assets at HK$4,650,000 and awarded wife one-third (HK$1,550,000) on the basis of parties' equal contributions and respective earning capacities – Court of Appeal adjusted total assets to HK$5,365,000 and, applying White v White and Miller/McFarlane principles, awarded wife half (HK$2,682,500) – whether C v C [1990] 2 HKLR 183 remains good law – Held: C v C overruled – its foundations were questionable, having relied on Harnett v Harnett regarding a 'target provision' never enacted in Hong Kong – the implicit objective of section 7 is a fair financial outcome – whether the Australian approach (Mallett v Mallett, Figgins v Figgins) should be adopted – Held: rejected because it centres on subjective assessment of contribution quality and is tied to its own legislative provisions – whether the English approach (White v White and Miller/McFarlane) should be adopted – Held: broadly endorsed – four underpinning principles identified: (i) implicit objective of fairness; (ii) rejection of gender or role discrimination; (iii) yardstick of equal division to be departed from only for good articulated reasons; (iv) rejection of costly and futile retrospective investigations of the marriage – guidelines only, not strictly binding precedents – five-step framework for applying section 7: identify assets, assess needs, decide whether to apply sharing principle, consider good reasons for departing from equal division, decide the outcome – 'needs' take priority when assets are insufficient – matrimonial home and family assets normally treated as matrimonial property – unilateral or pre-marital assets may be excluded, especially in short marriages, but importance diminishes with marriage duration – conduct only relevant if 'obvious and gross' (Wachtel v Wachtel test) – special/stellar contribution claims only succeed in exceptional circumstances – compensation for relationship-generated disadvantage generally already factored into the sharing principle – in the present case, the District Judge's findings on equal contributions and parties' ability to meet their needs from earning capacity were undisturbed – no good reason articulated to depart from equal division – Court of Appeal's award of half the assets to the wife upheld – appeal dismissed – order nisi that there be no order as to costs to stand as absolute unless written submissions received within 14 days – counsel and solicitors appeared pro bono on both sides, the Court expressing its gratitude.
Legal issues: Whether C v C remains good law · Whether to adopt White v White/Miller/McFarlane or Australian approach · Framework for applying section 7 · Application to present case
Outcome: Appeal dismissed; Court of Appeal's award of half of the parties' total assets to the wife upheld.
Cited by 435 cases · Cites 8 cases
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FACV No. 16 of 2008 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION FINAL APPEAL NO. 16 OF 2008 (CIVIL) (ON APPEAL FROM CACV NO. 91 OF 2007) Between:
Mr Justice Bokhary PJ : 1.I agree with the judgment of Mr Justice Ribeiro PJ. Mr Justice Chan PJ : 2.I agree with the judgment of Mr Justice Ribeiro PJ. Mr Justice Ribeiro PJ: 3.In this appeal, the proper approach to making financial provision orders on and after dissolution of a marriage falls to be considered. The appeal in WLK v TMC[1]was heard at the same time. The judgments in both appeals are to be handed down simultaneously and are intended to be read together. 4.In ancillary relief proceedings, after an examination of the parties’ financial situation (to which I shall return), Deputy District Judge Kot[2] found that the total assets of the present appellant (the husband) came to HK$4,650,000 and ordered him to pay HK$1,550,000, being one-third of that amount, to the wife (the present respondent). 5.On the wife’s appeal to the Court of Appeal,[3] the Court rejected challenges to certain findings and held that the only issue before it was ‘whether as a matter of law the Judge was correct to award only one third of the husband’s assets to the wife’.[4] It took the parties’ joint assets to be HK$5,365,000, and, invoking principles laid down in recent House of Lords decisions, awarded the wife HK$2,682,500, being half that sum. A. The issues on this appeal A.1 The Court of Appeal’s question 6.The Court of Appeal[5] granted the husband leave to appeal under section 22(1)(b) of the Court’s statute[6] framing the following question as having the requisite importance, namely:
Identification of the issues arising calls for some elaboration. A.2 Section 7 7.Section 7 of the Matrimonial Proceedings and Property Ordinance[7] (“MPPO”) lays down what the court must have regard to when making orders for ancillary relief:
8.The court’s powers under sections 4, 6 and 6A referred to are powers to make orders for financial provision (by way of periodical payments and lump sums) and for property adjustment upon and after granting inter alia a decree of divorce. 9.Enacted in Hong Kong in 1972, section 7 closely followed the wording of section 5 of the English Matrimonial Proceedings and Property Act 1970. However, there has always been omitted from the Ordinance the provision (sometimes referred to as the “target” or “tailpiece” provision) in the 1970 Act which required the court:
10.The target provision was deleted from the English statute book by the Matrimonial and Family Proceedings Act 1984 and the parallel provision in England is now section 25 of the Matrimonial Causes Act 1973 (“MCA 1973”) which, as amended, relevantly states:
A.3 The Court of Appeal’s decision in C v C 11.It is self-evident that section 7 of the MPPO (“section 7”) and section 25 of the MCA 1973 (“section 25”) are closely related in content and structure. It is therefore unsurprising that the Hong Kong courts have consistently looked to the English case-law for persuasive guidance as to the interpretation and application of section 7. 12.That this should be so was affirmed by the Court of Appeal in C v C, the 1990 decision referred to in the question framed. It was the first “big money case” to reach the Court of Appeal.[8] Hunter JA (with whom Fuad VP and Clough JA agreed) sought to distil the applicable principles from the English authorities then current. He relied especially on Preston v Preston[9] where (after reviewing the authorities) Ormrod LJ stated:
13.Adopting that approach, Hunter JA held that the court should first evaluate the financial resources of both parties and then turn to an assessment of “the wife’s ‘reasonable requirements’”. He observed that where a lump sum was to be awarded with a view to providing income, it should be computed “on the basis not of the return on the capital sum, but upon the basis that the capital would be exhausted during the wife’s lifetime”,[11] in other words, employing a Duxbury calculation.[12] 14.Applying C v C,wives who were full-time homemakers and child-carers could only expect awards designed to meet their reasonable requirements. If there were surplus assets, they might qualify for a larger award if they had “earned” it by contributing financially to the family assets. Hunter JA adopted what Ormrod LJ said in Preston v Preston to such effect:
15.Hunter JA[14] also endorsed the proposition advanced in Preston[15]that “there does come a point, in cases where the available resources are very large, ... when the amount required to fulfil its terms ‘levels off’ and redistribution of capital as such, in some unspecified ratio begins, which is outside the section.” In other words, after seeing to the wife’s reasonable requirements, the surplus assets were not subject to distribution under section 7 at all and if they were in the husband’s name, would be kept by him. 16.Counsel attacked such an outcome as unfair. However, it was a result which seemed to Hunter JA:
A.4 The decision of the Court of Appeal in the present case 17.The parties were unrepresented at the hearing but the Court of Appeal had the assistance of Ms Anita Yip appearing as amicus. 18.The Court unanimously decided that “reasonable requirements” should no longer be given dominant effect as espoused in C v C and that section 7 should be approached in the manner indicated by the House of Lords in White v White[16] and in the conjoined appeals in Miller v Miller and McFarlane v McFarlane[17](which I shall refer to as “Miller/McFarlane”). It accordingly held that when distributing assets upon a divorce, “the general principle is to apply the equal division principle unless there is a good reason to depart from it.”[18] 19.The reasons for the Court of Appeal’s decision included acceptance of the cogency of the House of Lords’ reasoning in overturning the earlier authorities upon which C v C was based;[19] the view that favouring equality as a principle for distribution is consonant with the principles enshrined in the Basic Law and Bill of Rights;[20] and the suggestion that the ratio of C v C was that English decisions on the effect of section 25 should be followed when construing section 7 so that adopting the House of Lords’ decisions was the correct way to give C v C effect as a binding precedent.[21] 20.Yuen JA and Lam J were understandably concerned as to whether the Court of Appeal was free to depart from C v C since they correctly took the view (on the law as it then stood) that it could not do so unless the earlier decision was reached per incuriam (which could not be said of C v C). However, they assumed an unorthodox view of the ratio of C v C, regarding it as effectively prescribing the adoption of whatever English authorities on section 25 may be in place when construing section 7. It is unnecessary in this judgment to discuss the correctness of that view since this Court is obviously not faced with the same constraints. As it happens, just over a week after the Court of Appeal’s judgment, this Court handed down judgment in A Solicitor v The Law Society[22] in which the strict confines of Young v Bristol Aeroplane[23]were held no longer to apply and the Court of Appeal was held entitled to depart from a previous decision of that Court if satisfied that such decision was plainly wrong.[24] If it had been decided sooner, A Solicitor v The Law Society might have provided a sound and preferable basis for refusing to follow C v C. A.5 The issues arising 21.The issues which require to be addressed are therefore as follows:
B. Is C v C still good law? 22.In my view, it is clear that C v C should be overruled. With respect, it has rested on highly questionable foundations from the outset. It is somewhat startling that Hunter JA, citing Bagnall, J in Harnett v Harnett,[27] partly based the Court’s decision on the view that “the legislature did not direct the court to exercise its power so as to achieve a fair or just ... division of the capital and income resources of the parties”. That was unwarranted. Harnett v Harnett was decided in 1973 and concerned section 5 of the English 1970 Act with the “target provision” or “tailpiece” attached. What Bagnall J said[28] was that:
23.Bagnall J was therefore construing the target provision as excluding any broader objective of fairness. Since the Hong Kong legislature had never enacted the tailpiece and since, by 1990, it had not been in the English statute for some six years, Hartnett could not soundly be relied on. 24.Without the target provision it is natural to assume that a fair financial outcome must be the implicit statutory aim. As Lord Nicholls of Birkenhead pointed out in White v White:[29]
25.In Cowan v Cowan,[30] Thorpe LJ referred to Lord Nicholls’s view as “the almost inevitable judicial conclusion that the unexpressed objective of the exercise is to arrive at a fair solution”. It is indeed hard to imagine that the legislature might have intended the courts to reach an outcome which is other than fair. 26.Secondly, C v C’srestriction of relevant contributions to those which were financial in nature sits badly with section 7(1)(f) which enjoins the court to have regard to contributions “to the welfare of the family, including any contribution made by looking after the home or caring for the family”. As Baroness Hale of Richmond pointed out[31] domestic and financial contributions should be treatedequally since section 25(2)(f), (which is materially identical):
27.Section 7 requires the court to have regard to “all the circumstances” including the catalogue of matters that should be considered. As Lord Hoffmann observed in Piglowska v Piglowski[32]:
There is therefore no justification for treating “needs” translated into “reasonable requirements” as the determinative factor. 28.Quite apart from the abovementioned criticisms, what is fair treatment upon dissolution of a marriage involves concepts which “change from one generation to the next”[33] and the values underlying C v C do not reflect elementary notions of fairness as between husband and wife in present day Hong Kong. To confine a non-working wife’s award to the sum needed to meet her “reasonable requirements” and to permit the husband to keep the remaining assets is patently unfair and discriminatory, a proposition which lies at the heart of White v White and Miller/McFarlane to which I shall return. C. What alternative to C v C should the courts adopt? C.1 The Australian approach 29.As noted above, Mr Pilbrow SC argued that the Australian treatment of the parties’ assets on dissolution ought to be adopted. That is a view which has also excited some interest in certain Court of Appeal judgments.[34] 30.The Australian authorities (led by the decision of the High Court in Mallett v Mallett[35])are said to be more appropriate because, as I understand the submission, they reject equality of division as a starting-point[36] and require the court instead to assess the quality of the contribution made by each of the parties[37] in deciding how to distribute the assets. 31.As Nicholson CJ and Buckley J stated in Figgins v Figgins:[38]
And as the Full Court explained in Clauson v Clauson,[39] the approach involves a three-step exercise beginning with the identification of the parties’ property; going on to “the evaluation of the ‘contributions’ of the parties” and then turning to an assessment of other discretionary factors referred to in their statute.[40] 32.In Mallett, equality of division as a starting-point was rejected mainly because this was thought to import a presumption which could not be justified as a matter of statutory interpretation.[41] And in Figgins,[42] the Court pointed to two additional reasons of policy, firstly, that:
And secondly:
33.These points are examined further below. It is however of interest to note that their Honours expressed reservations about the prime importance accorded in Australia to the qualitative assessment of the parties’ respective contributions to the marriage:
34.Australian jurisprudence has always commanded great respect in this jurisdiction. And in the present area of law, there will undoubtedly be occasions when valuable assistance may be derived from considering how particular issues have been dealt with by an Australian court. 35.However, the discretion in each jurisdiction is governed by statute. The body of Australian case-law in question consists of judicial guidance on the interpretation and operation of the Australian Family Act 1975. While that Act is similarly structured and deals with many similar issues, there are nonetheless many significant differences in its wording and scope when compared with the Hong Kong Ordinance. It follows that the Australian authorities, centred as they must be on their own legislative provisions, are incapable of supplying an overall framework to inform our approach to section 7. C.2 The English approach 36.The close relationship between section 7 and section 25 in content and structure makes it natural for Hong Kong courts to examine White v White and Miller/McFarlane for any persuasive guidance they may give on how section 7 should be approached. 37.Are there any reasons for eschewing those decisions as possible sources of guidance? Mr Pilbrow sought to argue that one such reason might be that the values they incorporate are not values appropriate to the circumstances and culture of Hong Kong with its largely Chinese population. I will say at once that I can see no basis for that submission. 38.In a well-known passage in White v White,[45] Lord Nicholls stated:
39.Those are sentiments which in my view apply with equal force in Hong Kong. Failure to adhere to such values has led to discriminatory results in the earlier case-law which would today tend to offend elementary notions of fairness no less in Hong Kong than in England. 40.A different reason for caution before following the path indicated by White v White and Miller/McFarlane may be found in reservations expressed in some English decisions. Two examples will suffice. 41.In Cowan v Cowan,[46] decided about five months after White v White, Thorpe LJ complained that:
42.And in Charman v Charman (No 4),[47] while recognizing that the House of Lords’ innovations were “well founded on profound social change” and that “in the majority of cases the innovations ... were timely and beneficial,”[48] Sir Mark Potter P nevertheless had these words of caution:
43.In my view, while those are important concerns they should not deter this Court from broadly endorsing the White v White and Miller/McFarlane approach. Uncertainty will inevitably be perceived to arise where a well-trodden line of authority has been set aside, requiring a new approach to be developed for the exercise of discretion in a wide variety of cases. As experience in applying the new approach grows, such disquiet naturally subsides. It is now ten years since White v White was decided and the English courts’ experience gained over that period represents a valuable resource to be drawn upon. 44.Another concern voiced by Sir Mark Potter P was that in very big money cases, “the White factor” had more than doubled the levels of award so that many were saying that London had become “the divorce capital of the world for aspiring wives”.[50] I do not consider the higher level of awards necessarily a bad thing since they may merely demonstrate the inadequacy of the awards previously confined to “reasonable requirements” in such cases. The learned President’s worry was to some extent fuelled by the United Kingdom possibly finding itself out of step with other members of the European Union, a consideration which is not presently relevant. 45.I turn next to the two reasons given in Figgins v Figgins for not adopting equality as a starting-point.[51] They involve the fear that judges will go directly and unthinkingly to a 50/50 award and also the fear that equal division may prejudice spouses having the care of children in cases where the assets are meagre. In my view, those apprehensions postulate a mechanistic misapplication of the principles (discussed further below) and do not constitute grounds for rejecting the approach in White v White and Miller/McFarlane on principle. 46.I accordingly conclude that in exercising section 7 discretionary powers, guidance may properly be sought from the White v White line of cases as examined and discussed in this judgment. D. The nature of guidance from this Court 47.Before examining the new approach, it is important to appreciate the nature and limits of the guidance which this Court is able to give. Two points should be made in this regard. D.1 Guidelines only 48.Section 7 confers a very broad discretion on judges dealing with financial provision. They must consider all the circumstances of the case including the matters specified in deciding whether and how to exercise their powers. The obvious intention is that the court should be able to deal flexibly with a great variety of different cases. However, the price of such flexibility is an inevitable element of legal uncertainty. As Wall LJ recently reminded us,[52] Ormrod LJ made this point in relation to complaints about uncertainty voiced by practitioners some 23 years before White v White:
49.While recognizing that some uncertainty is inescapable, it is nevertheless desirable that the appellate courts should attempt to provide guidance with a view to encouraging consistency and predictability. As Lord Nicholls pointed out in Miller/McFarlane:
Baroness Hale added that consistency and predictability should be promoted in order “to enable and encourage the parties to negotiate their own solutions as quickly and cheaply as possible”.[55] 50.However, as Ormrod LJ observed, [56] the courts’ pronouncements on a provision like section 7 “can never be better than guidelines”. This is because, as Gibbs CJ explained,[57] the courts “cannot put fetters on the discretionary power which the Parliament has left largely unfettered.” Dealing with the natural tension existing between the need for flexibility on the one hand and the desire for consistency on the other, Brennan J stated:
51.As his Honour pointed out, Lord Denning MR addressed the problem of guiding the exercise of an unfettered judicial discretion in Ward v James[59] in the following terms:
52.Accordingly, the first point to be made in the present context is that the principles enunciated in this judgment are in the nature such guidelines. Financial provision applications are highly fact-specific and judges dealing with them must ultimately be guided by section 7 and the implicit aim of arriving at a fair financial outcome as between the parties. 53.Moreover, the guidance given in this judgment cannot be and does not purport to be comprehensive. Thus, in Charman v Charman (No 4),[60] referring to the guidance given in White and Miller” Sir Mark Potter P noted that “there is no doubt that, under that guidance, the House has left much for the courts to develop”. The recent Supreme Court decision in Granatino v Radmacher,[61] provides an example of the courts working out the status of pre- and post-nuptial agreements against the background of the scheme laid down by White and Miller/McFarlane. D.2 The exercise often stops at “needs” 54.The second point is that in most cases, discussion of the guidelines is superfluous. Usually, the available assets are insufficient to cater for the needs of both parties after termination of the marriage so that the exercise does not progress beyond consideration of their needs. As Lord Nicholls put it in Miller/McFarlane:
55.It is therefore only in cases where surplus assets remain to be distributed after seeing to the parties’ needs that the guidelines may require consideration. The disposal of simple cases should not be pointlessly complicated by inappropriate attempts to apply such guidelines. E. How section 7 should be approached E.1 The principles underpinning the White v White line of cases E.1.a Objective of fairness 56.Four principles appear to me to underpin the White and Miller line of cases. The first is that the implicit objective of a section 7 exercise is to arrive at a distribution of assets which is fair as between the parties. This has been discussed in Section B above. E.1.b Rejection of discrimination 57.The second is that the concept of fairness requires the refutation of any gender or role discrimination.[63] Lord Nicholls reiterated this at the start of his speech in Miller/McFarlane when, referring to White v White, he stated:
E.1.c Yardstick of equal division 58.The third principle is that, with a view to eliminating insidious discrimination and promoting fairness, judges should check their tentative views on distribution against a “yardstick of equal division” which should be departed from only for good, articulated reasons. Lord Nicholls put it thus:
59.In Miller/McFarlane,[66] the “yardstick” concept was elaborated into the “equal sharing principle” as further discussed below. However, it is worth emphasising that according an equal status to the role played by each of the parties during the marriage does not necessarily or even usually mean that their assets should be equally divided. Thus, in White [67]Lord Nicholls stated:
60.And in Miller/McFarlane,[68] he referred to the equal sharing principle as follows:
61.There has been some discussion as to whether it is permissible to use the “yardstick” as a “starting-point” or whether it can only be employed at the end of the section 7 exercise. It appears to me that this question has become largely a matter of semantics. Once it is understood that the “yardstick of equal division” and the “equal sharing principle” are merely conceptual aids and do not imply the existence of any legal presumption or burden of proof, it does not matter when or how many times a judge may use them to test conclusions tentatively reached. The process is by its nature iterative so that the debate about “starting-point” is of little practical relevance. E.1.d Rejection of minute retrospective investigations 62.The fourth principle is that the court should not countenance any attempt to engage in costly and often futile retrospective investigations of the failed marriage which tend to deplete the parties’ (and the courts’) resources and to increase antagonism and discourage settlement. 63.Such attempts have been encountered in various contexts, including disputes over the extent of a party’s assets; over the contribution made to the welfare of the family; over the parties’ conduct; over claims to be compensated for having suffered some disadvantage, and so forth. 64.The English courts’ response to allegations of “special contributions” by parties seeking to justify departure from an equal division is instructive. Referring in 2002 to the then growing practice of examining minutely the respective contributions of the parties, Coleridge J stated:
His Lordship added:
65.The courts’ disquiet was noted by Lord Nicholls in Miller/McFarlane:
66.Heeding Coleridge J’s “powerful observations” in G v G,Lord Nicholls held that: [71]
67.Adopting the dictum of Bodey J in Lambert v Lambert,[72] his Lordship explained that disregarding the contribution would not be inequitable unless the circumstances are “of a wholly exceptional nature, such that it would very obviously be inconsistent with the objective of achieving fairness (ie, it would create an unfair outcome) for them to be ignored.”[73] 68.Baroness Hale took the same view, holding that the question should be approached by deploying a standard equivalent to the “obvious and gross” standard applicable in “conduct” cases.[74] 69.The essence of this fourth principle is reflected in Thorpe LJ’s illuminating comment in Parra v Parra:[75]
70.The four principles discussed above should be borne in mind when embarking on the section 7 exercise to which I now turn. E.2 Step 1: Identification of the assets 71.The first step in the exercise is to ascertain the financial resources of each of the parties calculated as at the date of the hearing. In particular, under section 7(1)(a), the court must have regard to “the income, earning capacity, property and other financial resources” which each of the parties “has or is likely to have in the foreseeable future”. The object will of course be to compute the net financial resources, taking account of all material liabilities. At this stage, the court need not attempt to distinguish between matrimonial and non-matrimonial property, that being an exercise best undertaken (if necessary) when considering distribution of the assets. 72.The court should, as Sir Mark Potter P stated,[76] carry out this first stage exercise “with whatever degree is apt to the case”. In White v White,[77] reflecting the fourth principle discussed above,[78] Lord Nicholls cautioned against turning the clock back to the pre-1970 position when the courts “often had to attempt to unravel years of matrimonial finances and reach firm conclusions on who owned precisely what and in what shares”. No such attempt is called for and generally, a broad brush approach will be all that is required. 73.The parties have an important duty to ensure that the court has sufficient information regarding their assets. They must make full and frank disclosure and a party who fails to do so runs the risk of the court drawing adverse inferences and robustly attributing assets to him or her, or making adverse costs orders.[79] E.3 Step 2: Assessing the parties’ financial needs 74.The next step is for the court to assess the parties’ financial needs. As has been noted,[80] the section 7 exercise often stops at this point since the total resources may be insufficient to go beyond or even to meet both parties’ needs. If so, no room is left for the application of any sharing principle. Addressing the needs of say, the wife and children may immediately absorb more than half of the total assets. If so, “needs” are, for want of any alternative, determinative. Where the assets are meagre, a “clean break” may not be possible and it may be necessary to have recourse to an order for periodical payments.[81] 75.The position is neatly summarised by Sir Mark Potter P in Charman v Charman (No 4)[82] as follows:
76.This is an approach which should dispel the fear expressed in Figgins v Figgins,[83] that “rule equality” is likely to work injustice where the assets are meagre.[84] 77.As section 7(1)(b) indicates, the process of evaluating “needs” involves assessing the financial needs, obligations and responsibilities which each of the parties has or is likely to have in the foreseeable future in the light of present and foreseeable resources. The matters referred to section 7(1)(c) to (e), that is, standard of living, age[85] and disability, will often be relevant. As Lord Nicholls put it in White:
78.And in Miller/McFarlane his Lordship stated in respect of “needs”:
79.Baroness Hale stressed that the parties’ needs should be “generously interpreted”.[88] Accordingly, in trying to ensure that each party and their children have enough to supply their needs set at a level that equates, in so far as resources allow, to the standard of living they enjoyed during the marriage, those needs should not be assessed according to some perceived lowest common denominator, but with flexibility in the light of all the relevant circumstances.[89] E.4 Step 3: Deciding to apply the sharing principle 80.If surplus assets would remain after the parties’ needs have been catered for, the next step in the exercise should generally be for the court to apply the sharing principle to the parties’ total assets, leaving the “needs” question previously considered to be dealt with under that principle (as pointed out by Sir Mark Potter P in Charman v Charman (No 4)[90] cited above). In other words, the court should not make an immediate allocation but should return to “needs” for them to be dealt with alongside all other material factors in the processes described below as Steps 4 and 5. 81.In B v B (Ancillary Relief),[91] Hughes LJ summarises the purpose of the sharing principle, with the yardstick of equal division seen as part of such principle :
82.The point reached at this third stage of the section 7 exercise therefore involves the court deciding that the sharing principle applies and taking the view that the total assets should be divided equally between the parties unless there is good reason, capable of articulation, for departing from an equal division. It is worth emphasising, however, that as pointed out by Lord Nicholls,[92] the court will often ultimately not arrive at an equal division. E.5 Step 4: considering whether there are good reasons for departing from equal division 83.The fourth step therefore involves considering whether good reasons exist for departing from the principle of equal division. Any such departure means increasing or reducing one party’s share and correspondingly reducing or increasing the share of the other. The question for the court is whether the balance ought to be shifted from a point of equality to some other point in the circumstances of the case. This is necessarily a complex question which raises a range of separate issues. 84.What then are potentially good reasons for such a departure? The answer is to be found in the terms of section 7 and the implicit objective of a fair distribution of the assets. Any of the matters listed in paragraphs (a) to (g) of section 7(1) may provide an appropriate reason, as may the “conduct of the parties” and “all the circumstances” referred to in section 7(1). The catch-all category of “all the circumstances” makes relevant any matter which bears on the fairness of the financial outcome in a matrimonial context. 85.It is important to stress that while such factors, individually or cumulatively, are potentially capable of resulting in a departure from an equal division, a finding that one or more of those factors are engaged does not necessarily mean that a departure must occur. The weight to be given to such factors is in the court’s discretion to be exercised in Step 5 as described in Section E.6 below. It cannot be over-emphasised that the matter is fact-specific and discretionary. The sharing principle must not be mechanistically applied. 86.I turn next to consider, as part of the fourth stage of the exercise, a variety of matters which may be material to the sharing principle’s operation. E.5.a Source of assets as a material factor 87.The source of an asset may provide a reason for excluding it from the sharing principle on the basis that it is not an item of matrimonial property. Of course, in many cases, no question of any distinction between matrimonial and non-matrimonial property will arise. But where there are assets which may be capable of being so differentiated, section 7(1)(a) implicitly requires the court to consider whether any part of such assets ought in fairness to be excluded from the sharing principle. Differentiation might also be seen as a requirement of section 7(1)(f) if the source of a particular asset suggests that it is an independent and unmatched contribution by one of the parties. 88.However, the warning issued by Lord Nicholls must be kept in mind. Effort and expense should not be wasted in trying to establish a sharp dividing line between what is and what is not matrimonial property:
89.The existing case-law identifies two classes of assets as possible candidates for exclusion on the basis of source. The first involves property acquired during the marriage by one of the parties from a source wholly external to the marriage, such as by gift or inheritance. The second involves assets derived from a business or an investment conducted solely by one party (sometimes called “unilateral assets”). E.5.a.i Assets independently acquired 90.In White v White, Lord Nicholls gave as examples of assets within this class, “property acquired during the marriage by one spouse by gift or succession or as a beneficiary under a trust” and “property acquired before the marriage”.[94] 91.He made it clear, however, that there is no hard and fast rule as to whether such property should be excluded. It is very much a matter within the judge’s discretion to be exercised taking account of all the circumstances of the particular case:
92.However, an important factor which comes into play is the duration of the marriage, the factor mentioned in section 7(1)(d). As Baroness Hale[96] pointed out, “the importance of the source of the assets will diminish over time”. Her Ladyship explained:
93.So where it is a short marriage, the court may well be inclined to regard as excludable non-matrimonial property, assets acquired by one of the parties before the marriage or acquired in the course of the marriage from some wholly external source. But after a long marriage, those factors are likely to have much less weight. Thus, in White v White itself, Mr White had benefited from an initial cash contribution made by his father but, as Lord Nicholls commented, that could not carry much weight 33 years later.[98] 94.Where one of the parties acquires certain assets after separation without any help or contribution from the other, the court may well exercise its discretion to exclude such property from an equal division. However, if at Step 2, an endeavour to meet the parties’ financial needs is the sole or paramount concern, its acquisition after the separation may not prevent such property from being included in the award. E.5.a.ii Unilateral assets 95.There has been a measure of disagreement in relation to unilateral assets. Baroness Hale was inclined to regard assets sourced from the business or investment activities solely of one of the parties, ie unilateral assets, as property potentially to be excluded from an equal division. She qualified this by saying: “The source of the assets may be taken into account but its importance will diminish over time”.[99] By way of elaboration, her Ladyship stated:
96.Lord Hoffmann and Lord Mance agreed with Baroness Hale while Lord Hope of Craighead agreed with both her Ladyship and Lord Nicholls. Lord Nicholls, however, did not agree with Baroness Hale on this point. He stated:
97.The difference of opinion is relatively narrow as it only relates to cases where the marriage is of short duration. The merits of the competing views are open to debate[102] and it is not necessary to reach a firm conclusion in this judgment. I will content myself with saying that I am tentatively inclined to prefer Lord Nicholls’s approach as being simpler to operate and as avoiding the possible re-introduction of a discriminatory element into the exercise. 98.It should be noted that these refinements are not generally applicable to the matrimonial home and other assets which have been intended for and devoted to family use. Lord Nicholls pointed this out in Miller/McFarlane as follows:
Baroness Hale agreed, describing the matrimonial home as a prime example of a capital family asset.[104] E.5.b Conduct as a material factor 99.Section 7(1) makes it the court’s duty to have regard to the conduct of the parties in exercising its discretionary jurisdiction. It is therefore in principle a factor which may, alone or in combination with others, result in a departure from an equal division. 100.However, the courts have recoiled from permitting the parties to indulge in a post mortem of their marriage in order to find fault with each other or to air “their mutual recriminations and go into their petty squabbles for days on end”.[105] As Sir George Baker P stated in Campbell v Campbell,[106] “...everything should be done by the court to avoid costly, indecent and time-wasting investigations” regarding conduct in relation to ancillary relief proceedings. Otherwise the court will be faced with “... a lengthy, costly and, most likely, profitless investigation stretching over days, when allegations and counter-allegations are made by the ex-spouses or spouses, one against the other.”[107] These sentiments are just as pertinent today and are reflected in the fourth underpinning principle referred to above.[108] 101.In Wachtel v Wachtel,[109] Ormrod J devised a means to counteract such objectionable practices which was endorsed by Lord Denning MR in the Court of Appeal.[110] It was made clear that “conduct” was only relevant to financial provision if it was:
His Lordship added:
102.As Sir Mark Potter P stated in Charman v Charman (No 4):[112]
103.In England and Wales, section 25 was amended in 1984 so that section 25(2)(g) now states that conduct is to be taken into account only “if that conduct is such that it would in the opinion of the court be inequitable to disregard it”. It therefore differs from section 7 which does not contain that express qualification. However, in my view, that amendment makes no material difference. Section 25(2)(g) puts into statutory language what is essentially the “obvious and gross” test used before 1984. This is indicated in the passage from the learned President’s judgment cited in the preceding paragraph and made clear by Baroness Hale:
104.Conduct, or more accurately, negative conduct, is therefore only to be regarded as a material factor if it is “obvious and gross” in the sense explained in Wachtel v Wachtel or, which comes to the same thing, if it is such that it would in the opinion of the court be inequitable to disregard it. 105.The “conduct” heading is sometimes used in the case-law to refer to “positive conduct” which I prefer to discuss under the heading of “contribution”. It has also been suggested that prenuptial and post-nuptial agreements might be classified as instances of “conduct”. I would be more inclined to regard them as relevant matters brought in under the general rubric of “all the circumstances”. They do not in any event call for any detailed discussion in the present case. E.5.c Financial needs as a material factor 106.Assessment of the parties’ financial needs has been examined in describing the second stage of the exercise under discussion.[113] It was noted that paragraphs (b) to (e) of section 7(1) have a bearing on such financial needs. In the present context, one or more of those matters may also be relevant to deciding whether an equal division should be departed from. 107.Thus, as envisaged by section 7(1)(b), one of the parties may be left with significantly more onerous obligations or responsibilities (most commonly involving care of the children) than the other. Baroness Hale gave as examples of “needs”,[114] cases where one of the parties is unable or has a diminished ability to re-enter the job market; or has responsibility for the care of elderly relatives. Another example involves cases where one of the parties has special needs arising out of a physical or mental disability (as section 7(1)(e) recognizes). Circumstances like these are clearly capable of leading to a departure from equality of division. E.5.d Duration of the marriage as a material factor 108.Section 7(1)(d) specifies duration of the marriage as a factor which the court must consider when exercising its discretionary powers. This is potentially of great importance to the question whether the court should depart from an equal division. While the sharing principle applies to both long and short marriages,[115] it is clear that when a short marriage comes to an end, fairness may dictate that one party should exit the relationship with less than half of the total assets. 109.In Lord Nicholls’s words, this “reflects the instinctive feeling that parties will generally have less call upon each other on the breakdown of a short marriage”.[116] Viewing marriage as a partnership of equals, the fruits of the partnership are likely to be less substantial after a short marriage.[117] Mutual commitment being shorter-lived, the extent of any disadvantage brought about by separation may well be less profound. Moreover, as we have seen[118] after a short marriage, the court may well treat property acquired by one of the parties before marriage or during the marriage by way of inheritance or gift or from some other wholly external source as excludable non-matrimonial property. We have also noted[119] that Baroness Hale held that following a short marriage, unilateral assets in the sense explained above might be excluded. Accordingly, the duration of the marriage is highly relevant and an equal division is more likely to be sustained after a long, rather than a short, marriage. E.5.e Contributions to the welfare of the family as a material factor 110.The court is duty-bound by section 7(1)(f) to have regard to the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family. This is at the heart of the approach to financial provision in White v White and Miller/McFarlane. In identifying the overall objective as fairness between the parties and in rejecting gender or role discrimination when assessing the parties’ respective contributions,[120] those authorities are in harmony with section 7(1)(f). 111.The parties’ contributions are generally factored in as an intrinsic part of the sharing principle. The yardstick which favours equal division unless some good reason exists to the contrary implicitly gives equal recognition to the parties’ respective contributions, though different in kind.[121] This was put graphically by Coleridge J in RP v RP:[122]
112.A number of problems may arise however, if an attempt is made by one of the parties to persuade the court that his or her contribution to the family’s welfare is so significantly greater than the other party’s (sometimes called a “special” or “stellar” contribution[123]) as to justify departure from an equal division. 113.Assuming that during the marriage the parties occupied the traditional roles of breadwinner on the one hand and homemaker or child-carer on the other, there is, as Thorpe LJ said in Cowan v Cowan,[124] the obvious difficulty “of assessing contributions which are largely of a different character and are therefore inherently incommensurable”. Any attempted assessment would necessarily be highly subjective and unsatisfactory. 114.Secondly, an attempt to decide whether the contributions of one of the parties during the marriage were or were not “stellar”, is likely to require highly objectionable retrospective investigations of the kind discussed above in connection with the fourth underpinning principle.[125] 115.While recognizing that the court must assess each and every one of the section 25(2) criteria that may affect the outcome, Thorpe LJ stated:
116.Thirdly, since, as noted above, the parties’ respective contributions are already factored in as an intrinsic part of applying the sharing principle, a real risk of double-counting exists if one of the parties is to be awarded some additional sum in recognition of some allegedly special contribution. 117.Given such difficulties, it is unsurprising that the English courts have shown a marked and growing reluctance to accept “special contribution” as a basis for departing from equal division. The bar for raising the issue has been set very high. As noted above,[127] Lord Nicholls and Baroness Hale adopted a standard equivalent to the “obvious and gross” standard in connexion with “conduct” and held that a premium for “special contribution” would only be considered where the circumstances are of such an exceptional nature that it would very obviously be inconsistent with the objective of achieving fairness for them to be ignored.[128] Expressing his wariness of the issue of special contribution, Thorpe LJ in Lambert v Lambert,[129] stated:
118.In my view, our courts ought to proceed on the footing that the parties’ respective contributions to the welfare of the marriage are implicitly recognized within the sharing principle itself and that there will, if at all, only be rare and exceptional cases where an issue can properly be raised in favour of departing from equality on the basis of “special” or “stellar” contribution. E.5.f Compensation as a material factor 119.Compensation has been canvassed as a factor material to the ultimate outcome in two different ways. The first, deriving from section 7(1)(g), is relatively uncontroversial. The Ordinance requires the court to have regard to “the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.” Whether such a loss arises in any particular case is essentially a question of fact. 120.More difficult issues present themselves in relation to the second type of compensation which addresses, not a loss arising as a consequence of dissolution of the marriage, but a disadvantage incurred as a result of the way the parties arranged their affairs during the marriage. Lord Nicholls explained that such compensation :
121.Baroness Hale called this “compensation for relationship-generated disadvantage”, explaining it as follows:
122.Treating this kind of compensation as a factor material to the distributive outcome has caused difficulties, many of which have been identified by Coleridge J in RP v RP.[132] 123.The first problem relates to the “claim” implicit in an invocation of this type of compensation. The party seeking to rely on it is in effect saying that but for taking up the role he or she in fact assumed during the marriage, he or she would have enjoyed a lucrative career of some description. This sounds very much like a free-standing civil claim for loss of a chance. But, as Coleridge J points out:
124.Moreover, ancillary relief proceedings are quasi-inquisitorial[134] and quite unsuited to entertaining claims in the nature of an action for damages. Coleridge J explains this as follows:
125.It is perhaps significant that Lord Nicholls expressed a concern that allowing such compensation might lead to double-counting:
126.In my view, the risk of double-counting in “clean break cases” arises not merely because of a potential overlap with financial needs but because compensation for “relationship-generated disadvantage” is, like “contribution”, already intrinsically factored in as part of the sharing principle. By recognizing that a spouse who has given up a potentially lucrative career to take up a traditional role within the family should enjoy equal status with the breadwinner and should receive an equal share of the assets unless there is good reason to the contrary, the sharing principle gives effect in principle to this form of compensation. 127.I therefore find it difficult to see how double-counting can be avoided if some additional premium is to be attributed to the lost opportunity of an independent lucrative career. It seems unfortunate that in Miller/McFarlane, “compensation” was treated as an independent strand of fairness apparently standing apart from the strand represented by the sharing principle. That may well have contributed to the tendency detected by Coleridge J of some parties attempting to treat “compensation” as if it was a free-standing damages claim rather than an aspect of the sharing principle. 128.The view that compensation should be viewed as an intrinsic part of the sharing principle finds echoes in a question posed by Coleridge J (although he spoke of the overlap primarily in terms of “need”):
129.There may of course be cases where on the particular facts, allowing for this second type of compensation is fully justified and involves no risk of double-counting. McFarlane v McFarlane is a case with such special facts. The wife had given up a professional career as successful and highly-paid as the husband’s and Lord Nicholls considered it a “paradigm case for an award of such compensation”.[138] However, a central feature of that case was that the parties’ capital was insufficient to permit an immediate clean break and the only way the compensation element could be addressed was in the form of periodical payments by the husband. There was accordingly no risk of double-counting since there was no question of applying the sharing principle to any capital assets. 130.In my view, the approach to “compensation” should be similar to the approach to “contribution” previously discussed. Our courts ought to proceed on the footing that compensation for relationship-generated disadvantage is generally already factored in upon any application of the sharing principle. The extent of the compensation allowed for in applying that principle and deciding the extent of any possible departure from an equal division is, in any particular case, a fact-specific question which will depend on the nature, certainty, permanence and other qualities of the disadvantage incurred, viewed in a broad brush way. It will only be in exceptional cases that a separate element of the award over and above the amount already factored in should be dedicated to such compensation on the special facts of the particular case. In such exceptional cases, the court should not attempt to try the issue evidentially or conceptually as if it were a damages claim. A broad brush attribution of some percentage of the award to the element of compensation would generally be sufficient. E.6 Step 5: Deciding the outcome 131.It is worth reiterating that, having gone through the processes I have compendiously called “Step 4”, the court is not bound to depart from equality in the division of the parties’ assets even if one or more of the factors considered are engaged on the facts. The weight to be given to such considerations is a matter of discretion for the court. Stepping back and looking at the overall impact of the factors found to be relevant, the court may decide that certain factors carry such weight that a departure from equality is called for. The decision is fact-specific and discretionary. But where there is a departure, the court should explain its basis since the articulation of reasons provides a useful check on the fairness of the outcome. 132.The framework which has been described in the preceding paragraphs is offered as guidance directing judges towards a systematic consideration of issues which may be relevant to the exercise of their section 7 discretion with a view achieving a fair financial outcome in a matrimonial context. As explained in Section D.1 above, the principles enunciated are guidelines and not strictly binding precedents. The exigencies of a particular case may well lead the judge to adopt a modified approach. This is an evolving area of the law and aspects of the proposed framework may require reconsideration in the future. However, as Lord Denning MR explained in Ward v James, such a framework consists of :
F. The principles applied to the facts of the present case F.1 The Judge’s findings and decision 133.The wife was 45 years old in 2008. She is a graduate of Tsinghua University and had worked in the mainland until she came here on a work assignment in 1993. The parties married in 1996. After stopping work for some time, the wife resumed employment between 1998 and 2003, at the end of which period she was earning $28,000 per month. The husband was aged 46 in 2008. He is the proprietor of a small business with an involvement in three Hong Kong companies. There were no children. The parties issued a joint petition on 6 June 2003. 134.The ancillary relief proceedings cannot have been easy for the Judge. They lasted 22 days with the parties appearing in person. In a judgment delivered in Chinese, the Judge carefully examined the evidence in the light of section 7. Her findings may be summarised as follows. The marriage had lasted seven years and was described as “not a long marriage”. The wife reasonably required about $15,000 to meet her monthly expenses. The corresponding figure for the husband was $13,900. The wife was likely to be able to find a managerial job earning not less than $15,000 per month and the husband’s monthly income was not less than $19,200 per month with him receiving 13 months’ pay per year. Each party’s earning capacity was therefore likely to enable them to meet their monthly expenditure requirements. The parties had made equal contributions to the marriage. 135.The Judge discounted cross-allegations about conduct holding (in translation) “that it is not inequitable to disregard such conduct”. She also did not accept the relevance of a medical condition brought to the court’s attention by the wife. The Judge did however accept that the wife should not be held to an agreement arrived at after mediation since the husband had materially failed to make proper disclosure of his assets. She found that his total assets came to HK$4,650,000 and ordered him to pay one-third of that sum, that is, HK$1,550,000 to the wife. Apart from saying that such award was (again in translation) “a fair and reasonable arrangement for the distribution of the assets of the parties”, she did not explain why she decided on the one-third/two-thirds split or indicate what legal approach she had adopted. F.2 The Court of Appeal’s decision 136.The Court of Appeal refused to interfere with the Judge’s findings but made certain minor adjustments to the figures she had adopted for the assets. It held that the husband’s assets amounted to $5.3 million and the wife’s to $65,000, giving total assets of HK$5,365,000. As we have seen in Section A.4 above, the Court invoked the principles laid down in White v White and Miller/McFarlane and awarded the wife HK$2,682,500, being half of the total assets. Conclusion 137.On the basis that C v C has been overruled and adopting the approach explained above, there is in my view no basis for interfering with the result reached by the Court of Appeal. 138.None of the findings (including the figures as adjusted by the Court of Appeal) were in issue before this Court. The total assets were therefore correctly identified. What the Judge found was that the parties’ earning capacity would enable them to take care of their respective needs. That left the question of how the capital assets should be shared in achieving a clean break. The Judge having found that the parties’ had made equal contributions to the marriage and having suggested no grounds which might justify departing from an equal division, fairness strongly suggests that the outcome favoured by the Court of Appeal is correct. As the Judge did not provide any objective grounds to justify her one-third award, the Court of Appeal’s decision in favour of equal division should be upheld and the appeal dismissed. 139.As the appeal was conducted by counsel and solicitors on a pro bono basis, I would make an order nisi that there be no order as to costs which should stand as an order absolute unless written submissions by either party proposing some other order are received by the Court within 14 days from the date of this judgment. 140.The Court’s gratitude should be expressed to counsel and solicitors, especially to Mr David Pilbrow SC, who appeared with Mrs Frances Irving and Ms Dora Si for the appellant husband, and to Mr Russell Coleman SC who appeared with Mr Keith Hotten and Ms Emma Tsang for the respondent wife, for appearing pro bono in the best traditions of the profession. Mr Justice Hartmann NPJ : 141.I agree with the judgment of Mr Justice Ribeiro PJ.
142.I agree with the judgment of Mr Justice Ribeiro PJ. Mr Justice Bokhary PJ: 143.The Court unanimously dismisses the appeal and makes an order nisi that there be no order as to costs which should stand as an order absolute unless written submissions by either party proposing some other order are received by the Court within 14 days from the date of this judgment. As Mr Justice Ribeiro PJ has said and I would conclude by repeating on behalf of the Court as a whole, we are most grateful to counsel and solicitors on both sides for donating their valuable services.
Mr David Pibrow SC, Mrs Frances Irving and Ms Dora Si (instructed by Messrs Hampton, Winter and Glynn on pro bono basis) for the appellant Mr Russell Coleman SC, Mr Keith Hotten and Ms Emma Tsang (instructed by Messrs Barnes & Daly on pro bono basis) for the respondent [1] FACV 21/2009. [2] FCJA 597/2003, 30 June 2006. [3] [2008] 2 HKLRD 523 (Cheung and Yuen JJA, Lam J). [4] At §29. [5] CACV 91/2007 (19 June 2008). [6] Hong Kong Court of Final Appeal Ordinance (Cap 484). [7] Cap 192. [8] [1990] 2 HKLR 183 at 185. [9] [1982] Fam 17. [10] At 25. [11] [1990] 2 HKLR 183 at 186-187. [12] A reference to Duxbury v Duxbury (1987) [1992] Fam 62n. [13] [1982] Fam 17 at 25. [14] At 187. [15] At 28. [16] [2001] 1 AC 596. [17] [2006] 2 AC 618. [18] Cheung JA at §66 and Lam J at §110. [19] Cheung JA at §63 and §65, Yuen JA at §88 and Lam J at §§92, 104 and 106. [20] Cheung JA at §65. Yuen JA left this open as the point had not been argued: §83. [21] Yuen JA at §88 and Lam J at §93 and §103. [22] (2008) 11 HKCFAR 117. [23] [1944] KB 718. [24] (2008) 11 HKCFAR 117 at §45. [25] Section 79 of the Family Act 1975 (Australia). [26] (2002) 29 Fam LR 544. [27] [1973] Fam 156. [28] At 161. [29] [2001] 1 AC 596 at 604. [30] [2002] Fam 97 at §58. [31] Miller/McFarlane at §146. [32] [1999] 1 WLR 1360 at 1373. [33] Miller/McFarlane per Lord Nicholls §4. [34] Yuen JA below at §90; Stock JA in L v C, CACV 169 of 2006 and L v L 181 of 2006 (25 May 2007) at §§106-108; and Stone J in W v H and Z, CACV 127 of 2008, unreported (12 May 2009) at §81. [35] (1984) 156 CLR 605. [36] Ibid at 610, 623-625 and 647. [37] Ibid, at 608, 610 and 636. [38] (2002) 29 Fam LR 544 at §115. [39] (1995) 18 Fam LR 693 [40] Family Law Act 1975 (Australia) sections 75 and 79. [41] Ibid at 610, 625 and 647. [42] (2002) 29 Fam LR 544. [43] At §120. [44] At §124. [45] At 605. [46] [2002] Fam 97 at §41. [47] [2007] 1 FLR 1246. [48] At §115. [49] At §120. [50] At §116. [51] See Section C.1 above. [52] B v B (Ancillary Relief) [2008] 2 FLR 1627 at §54. [53] Martin v Martin [1978] Fam 12 at 20. [54] At §6. See also White v White at 600. [55] At §122. [56] Martin v Martin [1978] Fam 12 at 20. [57] Mallet v Mallet (1984) 156 CLR 605 at 609. [58] Norbis v Norbis (1986) 161 CLR 513 at 538. [59] [1966] 1 QB 273 at 295. [60] [2007] 1 FLR 1246 at §63. [61] [2010] UKSC 42 (20 October 2010). [62] At §12. [63] This was noted in Section C.2 above. [64] Miller/McFarlane at §1. [65] White v White at 605. [66] At §16. [67] At 605. [68] At §16. [69] G v G (Financial Provision: Equal Division) [2002] 2 FLR 1143 at §§33-34; cited in Lambert v Lambert [2003] 1 FLR 139 at §20. [70] Ibid at §49, cited in Lambert v Lambert [2003] 1 FLR 139 at §22. [71] Miller/McFarlane at §67. [72] [2003] 1 FLR 139 at §70. [73] Miller/McFarlane at §68. [74] Miller/McFarlane at §§145-146. [75] [2003] 1 FLR 942 at §22. [76] Charman v Charman (No 4) [2007] 1 FLR 1246 at §67. [77] At 611. [78] In Section E.1.d. [79] Livesey (formerly Jenkins) v Jenkins [1985] AC 424 at 430, 436-437; P v P (Financial Relief Non-Disclosure) [1994] 2 FLR 381; F v F [1994] 1 FLR 359; Baker v Baker [1995] 2 FLR 829; and Al-Khatib v Masry [2002] 1 FLR 1053. [80] Section D.2 of this judgment. [81] Miller/McFarlane per Lord Nicholls at §12. [82] [2007] 1 FLR 1246 at §73. [83] (2002) 29 Fam LR 544. [84] Discussed in Section C.1 above. [85] Duration of the marriage is perhaps more relevant to “contribution” and the “sharing principle” than “need”. [86] White v White at 608. [87] Miller/McFarlane at §11. [88] Miller/McFarlane at §144. [89] See J v J [2009] EWHC 2654 (Fam) per Charles J at §§292-296. [90] [2007] 1 FLR 1246 at §73. [91] [2008] 2 FLR 1627 at §24. [92] White v White at 605. [93] Miller/McFarlane at §26. [94] White at 610. [95] Ibid. [96] Miller/McFarlane at §148. [97] Ibid. [98] White v White at 611. [99] Miller/McFarlane §150 and §152. [100] Miller/McFarlane §§152-153. [101] Miller/McFarlane §20. [102] See, eg, Charman v Charman (No 4) [2007] 1 FLR 1246 at §§82-86. [103] At §22. [104] Miller/McFarlane at §149. [105] Per Lord Denning MR in Wachtel v Wachtel [1973] Fam 72 at 89-90. [106] [1976] Fam 347 at 353. [107] At 350. [108] In Section E.1. [109] [1973] 1 All ER 113 at 119. [110] [1973] Fam 72 at 90. [111] Ibid. [112] [2007] 1 FLR 1246 at §106. [113] Section E.3 above. [114] Miller/McFarlane at §138. [115] Miller/McFarlane at §17. [116] Miller/McFarlane at §24. [117] Miller/McFarlane at §17. [118] Section E.5.a.i above. [119] Section E.5.a.ii above. [120] White v White at 605; Miller/McFarlane at §1. [121] Charman v Charman (No 4) [2007] 1 FLR 1246 at §64. [122] [2007] 1 FLR 2105 at §63. [123] See Cowan v Cowan [2002] Fam 97 at §§21 and 148; Lambert v Lambert [2003] 1 FLR 139 at §17. [124] [2002] Fam 97 at §87. [125] Section E.1d. [126] [2003] 1 FLR 139 at §38. [127] Section E.1.d of this judgment. [128] Miller/McFarlane at §68 and §§145-146. [129] [2003] 1 FLR 139 at §46. [130] Miller/McFarlane at §13. [131] Miller/McFarlane at §140. [132] [2007] 1 FLR 2105. [133] [2007] 1 FLR 2105 at §64. [134] Parra v Parra [2003] 1 FLR 942 at §22. [135] At §60. [136] Miller/McFarlane at §15. [137] RP v RP [2007] 1 FLR 2105 at §59. [138] At §§92 and 93. [139] [1966] 1 QB 273 at 295. | |||||||||||||||||||||||||||||||
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