Hart v Hart

Judgment

Lord Justice Moylan:

Introduction

This case concerns the approach which the court should take to non-matrimonial property when determining a financial remedy claim by application of the sharing principle. I emphasise that, what I say in this judgment, is confined to this principle. It raises both evidential and legal issues. How is such property to be assessed? What degree of assessment is required? Is the approach formulaic or does the court have a broader discretion?

In this judgment, I use the words matrimonial and marital interchangeably. In White v White [2001] AC 596 , Lord Nicholls used the expression, “from a source wholly external to the marriage” (p. 994) when referring to non-matrimonial property. He defined matrimonial property in Miller v Miller; McFarlane v McFarlane [2006] 1 FLR 1186 (paragraph 22) as “the financial product of the parties’ common endeavour”. Lady Hale used the expression “the fruits of the matrimonial partnership” in Miller (paragraph 141). In Charman v Charman (No 4) [2007] 1 FLR 1246 matrimonial property was described as “the property of the parties generated during the marriage otherwise than by external donation” (paragraph 66). Non-matrimonial property can, therefore, be broadly defined in the negative, namely as being assets (or that part of the value of an asset) which are not the financial product of or generated by the parties’ endeavours during the marriage. Examples usually given are assets owned by one spouse before the marriage and assets which have been inherited or otherwise given to a spouse from, typically, a relative of theirs during the marriage.

The context is an appeal by the wife (as I will call her) from the final financial remedy order made on 25 th June 2015 by His Honour Judge Wildblood QC (“the judge”). He decided that the wife should receive/retain assets with a combined value of approximately £3.5 million out of total resources of just under £9.4 million. The judge undertook what he described as a multi-faceted approach but, ultimately, the sum he awarded the wife was equal to the amount he had calculated as being required to meet her needs.

The husband (as I will call him) appeared in person at the hearing before the judge. He has been represented on this appeal by Ms Seddon, who prepared the skeleton argument, and by Mr Armstrong who appeared at the hearing.

Mr Mitchell, who appeared on behalf of the wife on this appeal and did below, submitted that there was no justificat