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What does ‘equal sharing’ in the family court really mean?

The decision in Hart v Hart has brought into question the principle of sharing and the extent to which it should be applied to non-matrimonial…

It has been claimed that the court of appeal’s (CoA) decision in the recent case of Hart v Hart [2017] which dismissed a wife of 23 years’ appeal for an equal share of assets, has brought into question the long established principle of sharing and the extent to which it should be applied to non-matrimonial assets.

In this case the wife was appealing a decision that she should only receive £3.5 million out of a £9.5 million asset pot. She contended that the trial Judge erred in awarding her an amount that only met her needs rather than adopting the sharing principle. The husband’s position was that he brought significant wealth into the relationship and that this should be accounted for. The wife argued that the husband, who failed to provide complete financial information, should not benefit from his non-compliance, in so far as it led to the judge having to speculate as to the exact value of the pre-acquired wealth. Notwithstanding the fact that the husband failed to comply with disclosure rules and failed to corroborate his arguments with sufficient evidence, the Judge determined that in all of the circumstances it was clear that the husband was already wealthy at the time of the marriage and the pre-marital wealth should be accounted for within any settlement.

The CoA dismissed the wife’s appeal concluding that Judge had not erred in his findings. They provided detailed guidance and determined that it is not for the Judge to apply any specific ‘formula’ or mathematical approach but rather they have an element of discretion and flexibility, when reaching a conclusion. The judgment further confirms that deficiencies in evidence do not mandate a particular outcome and the court has to have regard to all circumstances of the case and draw inferences, if necessary.

In the landmark cases of White [2000] and Miller [2006], it was established that the ‘source’ of the assets would be a factor taken into consideration when departing from equality, although the importance of that source will diminish over time. In the later case of Charman [2007] it was established that the sharing principle applies to all assets owned by the parties but that there were better reasons for departure from equality for non matrimonial assets. In decisions following Charman it did not appear to the court that any spouse had been awarded a share of non matrimonial property based purely on the ‘sharing principle’.

The decision in Hart v Hart, questions whether even following a long marriage, the sharing principle should be applied to non-matrimonial assets. It is difficult to be surprised by the decision in light of the approach taken by the court following the case of Charman but it should be noted that the judge stopped short of stating that the sharing principle only applies to matrimonial assets.

The decision should not therefore be taken as reassurance that wealth accumulated prior to a marriage will be treated separately in every circumstance. It is strongly recommended that anyone seeking to protect wealth acquired before the date of their marriage seeks specialist advice regarding pre and post marital agreements.

Meera Shinh is a Solicitor in the family law team at national law firm Weightmans LLP: meera.shinh@weightmans.com