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	England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> RP v RP [2006] EWHC 3409 (Fam) (08 December 2006) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2006/3409.html Cite as: [2006] EWHC 3409 (Fam)

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IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
BRISTOL DISTRICT REGISTRY

		The Guildhall Court, Greyfriars, Lewins Mead, Bristol. BS1 2NR
		8th December 2006

MR. JUSTICE COLERIDGE: Introduction

1. I shall call the parties "husband" and "wife", although the decree nisi was pronounced in 2005.
2. Following a total period of co-habitation lasting fourteen years, ten of them as husband and wife, the wife seeks by this application financial provision for herself and twins aged nine.
3. Until recently there was nothing especially unusual about the factual basis for this application. However, in the latter stages of it, during this summer, the husband, until then a high flying and highly paid chief executive officer of an international bank, gave notice to his employers that he would cease his employment with them at the end of this year with a view to becoming a self employed banking consultant based in Australia.
4. Unsurprisingly, that revelation excited the wife's suspicions that this was a last minute tactical move to reduce his financial exposure and potential liability to her arising out of the application. Unsurprisingly also, therefore, much of this hearing has been concerned to explore the husband's motives for this dramatic development and the financial implications for his ongoing earning capacity in the period after the cessation of his lucrative and secure employment.
5. Both parties are determined to achieve a clean break. Whether, in the current climate, that would have been achievable when the husband was earning in the region of half a million pounds a year, which he is until his resignation, is a moot point. However, it is now accepted on both sides that his earnings will not be at anything like that level in the period following his resignation. So what is the proper level of capital provision on a clean break basis to provide for the wife (and the children who will be with her) taking into account such earning potential as he still retains? That is the core issue in this application.
6. That somewhat lengthy introduction obscures the fact that, with the help and skill of their specialist advisors, by the time this application was opened some three days ago, the parties had very considerably narrowed the gap that lay between them. Most of the issues had been resolved. In so far as they were unable to bridge the final gaps their task has undoubtedly been made somewhat harder by the current confusion surrounding the law in this area.
7. Let me start with the areas of agreement. The husband in his open offer made the following proposal. Firstly, a transfer to the wife of the entire proceeds from the sale of the matrimonial home, now £447,851. The wife would also retain all the other financial assets presently in her own name; £546,786. These are mainly made up of the shares in the bank by which the husband was employed and which had been transferred to her. It has also been agreed that there would be a pension sharing order of the husband's pensions in the Bank of A - at a fraction which would achieve equality between them. Finally it was also agreed that such things as the wine a would be divided between them.
8. Further the husband has agreed that he will pay periodical payments to the children at the rate of £6,000 per annum, index linked, until each attains the age of at least seventeen or ceases full time secondary education. There remains an issue as to tertiary education. It is agreed also that the husband will continue to meet the children's school fees at their current prep school and, in support of the arrangements for periodical payments for the children and their school fees, it is agreed that a secure fund of £130,000 would be set aside by the husband out of his retained resources to ensure that the periodical payments are met in a timely way and that the school fees will be available for at least the next three and a half years whilst they continue their private education for that period.
9. Those then were the very significant areas of agreement before the start of this hearing.

The issues

10. The main issue was as to the level of further capital by way of a lump sum which would be paid by the husband to the wife . The husband's proposal is that, out of the remaining cash, he should pay her a further sum of £275,000. The wife aspires to £500,000. That is the principal issue with which I have been concerned.
11. Looking overall at the value of the husband's offer based on his proposed lump sum offer; out of assets totalling approximately three million pounds, including pensions, the wife would have a total of some 1.7 million pounds, leaving him with 1.3 million pounds (out of which he had offered to set up the secure fund of the £130,000 to guarantee the agreed provision for the children and their school fees for the next three and a half years). Again, looking at the overall effect of the wife's proposal; she aspired to a total provision of just about two million pounds plus the secure fund. On that basis, obviously, the husband would have been left with about a million pounds less the secure fund.
12. The sub-issues which drive the resolution of main issue are really these. Should the main driver for the division of the capital be the wife and children's "needs", as the husband contends, or should I also have special and extra regard to compensating the wife for the loss occasioned by her career break whilst living with the husband and now whilst bringing up the children? The evidence is clear that her career is now getting back on its feet. And, additionally, how and to what extent should the husband's future earning capacity be taken into account? More prosaically within the context of needs, there have been the familiar arguments relating to the correct level of housing for the wife and her income/budgetary needs.
13. So far as the children alone are concerned, the only remaining issues are whether or not the periodical payments should be paid to the end of their secondary or their tertiary education and, secondly, whether or not the husband should be ordered today to pay school fees beyond the end of the period that has been secured by the fund. Alternatively, should that issue be left for now without an order but on the basis of the husband's stated and recorded present intention to pay those fees if he reasonably can do so when the time comes?
14. So far as the evidence is concerned, I have had very lengthy statements from the parties dealing with the background to the marriage and the marriage itself. I have also heard from them at considerable length in the witness box. Last but not least, I have been provided with detailed opening and closing notes from counsel which have both identified and advocated the issues with their customary economy and clarity. They have made the performance of my task, in one sense, a great deal easier but, in another, because of their quality, more difficult.
15. There have been very few real factual issues between the parties. The difference is largely one of emphasis and argument as to the past and future. I found both the husband and the wife were compellingly honest, straightforward and impressive witnesses. Both are obviously very strong characters with strongly held and strongly expressed views. Both are highly intelligent, talented, articulate and energetic. Unsurprisingly, this was a high octane mix for any marriage and it is accordingly unsurprising that, when the marriage floundered, these proceedings have become acrimonious for reasons which both lay at the door of the other. At one point it looked as if the case might even embrace issues of conduct. Happily and mercifully, the parties have drawn back from that debate which in this case would, I am convinced, have been sterile.
16. So far as the husband's resignation from D Bank is concerned; having heard him at length and having read his statements dealing with the events leading up to his decision to leave and to change direction, I accept his explanations and accept that these proceedings have played no part in the decision making process. At the end of the day I sincerely hope that, following this hearing, the parties will begin to co-operate again. There are signs that that is already happening. There is no doubt that these children will benefit hugely from their parents' sensible co-operation in the coming years. Conversely, they will suffer if the battles continue to rage.

The background

17. So far as the background to this matter and the basic factual matrix is concerned, I have the huge advantage of a document described as "Summary and Chronology" agreed between the parties prior to the hearing. It is, therefore, not necessary, at this point, for me to go into great detail about the background. The parties themselves, of course, are very familiar with the background. Put simply, the "Summary and the Chronology" show the following.
18. The wife is forty seven and living at the moment in rented accommodation in Bath. She has set up a design consultancy business and a property search company with the help of a business partner. The husband is forty six. He is currently employed by the D Bank as its CEO based in Dubai. That employment ceases at the end of this year when he plans to work as a self employed banking consultant in Brisbane. At the present time he is living in Dubai but he plans to move shortly to Australia.
19. Having met in November 1990, the parties began to co-habit in 1991. At the time when they met the wife was thirty and the husband was twenty nine. The wife had good employment as the director of a small recruitment agency and all the signs are that she was highly regarded in that employment. The husband was already making a great success of his employment with the Bank of A .
20. There are some figures relating to the husband's finances prior to the parties beginning to co-habit. They are set out on the schedule. I do not propose to repeat them all here. They amount in total to about £93,000 of accumulated assets. He was also earning nearly £80,000 a year together with a bonus customarily payable in the banking world. He had a smart car. The wife too was earning at a rate of about £60,000 a year together with a car.
21. The early relationship, the wife said, was whirlwind and passionate so that by August 1991, the husband having moved to Hong Kong, the wife was beginning to consider whether or not she might move there as well, to live with the husband. That became her decision and she joined him in Hong Kong in 1991. They then began living together and that is effectively the significant date so far as this application is concerned. They remained living together from then.
22. During the time when the wife was in Hong Kong she deployed her skills, making an income for herself by importing items for sale. There is evidence in the papers once again of her tremendous energy and talent. In due course on 9^th April 1994, the parties married. A glance at the agreed chronology highlights the husband moving swiftly through the upper echelons of the bank. He was promoted to chief executive officer in May 1994 and moved to Thailand. The wife joined him later in Bangkok.
23. In 1997 the two children arrived, twins, B and T, born on 24^th June. The wife was then, of course, some thirty eight years old. The children were only conceived after the wife undertook a difficult medical intervention.
24. In 1999 the husband moved, again for his employment, to Singapore and the wife and children joined him there.
25. In 2000 the parties bought a stylish and attractive home in Wiltshire called S G. It is the proceeds of sale of that property which form a significant part of the capital provision that has already been agreed that the wife should retain. The property was extensively refurbished and the adjoining twenty two acres were also bought to make it even more desirable.
26. The marriage became troubled and the parties separated in August 2004. So they have been apart now for just over two years.
27. Shortly thereafter the wife went on a course to learn about the business of interior design and refurbishment. It was that training which led to her being able to start her own partnership, as I have described.
28. These proceedings were issued on 5^th July 2005 and they have taken their usual course. Enormous quantities of paper have been generated in the course of the enquiry. It does not surprise me, given the level of acrimony in the case and, of course, the change in the husband's career in the latter stages has made matters more complicated.
29. It was after the marriage had broken down and, indeed, after the divorce petition had been issued that the husband accepted his last role with D Bank . This was as the CEO based in Dubai in the United Arab Emirates. He had only been in that role, no doubt, itself quite demanding enough, when it was disclosed to him that the ambit of his portfolio was to be drastically increased by the addition of responsibility for Iran and then, more worryingly no doubt, Iraq. It was those two additional responsibilities which provoked the husband to think seriously about his future with the bank and he decided that he did not wish to remain with the bank any longer with those enlarged duties.
30. He explained, both in his statement and in oral evidence to me, his thought processes. They may not be thought processes which employment lawyers would accept but I can understand his belief that to try and renegotiate any particular alteration to the extra roles which had been imposed on him would be a forlorn exercise in the culture of this particular organisation. He would, he explained, lose his status in the eyes of his peers and his superiors. Accordingly, he told the bank by a letter that he would be resigning with effect from the end of this year and that is what he is proposing to do. I accept his explanations and evidence.
31. So the children will remain with the mother as their main carer. This has particular significance as the husband, of course, is now going to be on the other side of the world. She is living, as I say, in rented accommodation but would like to buy a house in Bath where she can foster her fledgling companies. The husband is working out his contract in Dubai with a view to departure to Brisbane early in the new year. It is hoped that contact will take place both here and in Australia in the years to come, the children moving between the two countries.
32. So I turn to consider section 25 of the Matrimonial Causes Act 1973, the statutory basis upon which the court considers these cases.

The Children.

33. The first consideration is always the welfare of the children. In this particular case there are special needs to consider. T suffers from dyspraxia and a mild form of Asperger's Syndrome. I have read a report in the papers. There is no doubt he is getting good help at the moment both at school and from outside specialist help. B has also suffered from the effects of the break up of the marriage but, happily, not severely. The other factor, so far as the children are concerned, is, as I have said, that their father will be on the other side of the world and so the mother will have an enhanced role with no regular contact/weekend support. That is often a most valuable resource and source of support. It is sometimes forgotten. In this case it will be absent.

The Financial resources/means.

34. Let me turn consider now the parties' means, the place from which to start in these cases. Happily, they, too, are now almost entirely agreed so far as the basic figures are concerned. Mr. Dyer Q.C., has produced a schedule which is clear and simple and so I shall work from it. Mr. Sharp Q.C., produced a similar document but, for the purposes of this judgment, I shall work from Mr. Dyer's schedule only because of its simpler presentation. The schedule will be annexed to the judgment so I shall not go through every figure. It falls into four or five categories.
35. In the first category there are assets which it is accepted the wife will retain. They are not as valuable as the other cash assets and securities. They are set out under the heading "Joint Assets and Debts" and amount to some £230,000.
36. The principal figure within that section of the schedule is the sum of £149,500 which relates to the value of the wife's mother's home. That is a property in the wife's mother's name and upon which at one time there was a mortgage. That mortgage was discharged by resources provided partly in the strict sense by the husband and partly, in the broad sense, jointly during the course of the marriage. So the house is now in the wife's mother's name mortgage free. Part of the original understanding was that the mortgage would be paid off on the basis that each of the husband and the wife would both inherit the equity in that property on the death of the mother. There has been some discussion about the extent to which that is of real value to the wife, given that her mother is seventy eight and, although not in the best of health, shows every sign of living for many years to come. However, it is not to be entirely ignored. Although all speculative, on balance, I suspect that there will be some equity left in that property on the death of the wife's mother at some point in the future. The significance of this is that the husband has already agreed that, insofar as he has any long term interest in the property, he will waive it in favour of the wife.
37. The contents of the home are put at in excess of £30,000. Those figures are taken at their face value. They represent the value of what has been described as staple items as well as more valuable items of furniture. They are not insignificant and, again, it is accepted that the wife will retain those. They do not come into the same category of asset as the other assets I shall be referring to in a moment but they do relieve the wife of the need to buy any furniture or contents for any property which she will, in due course, buy. On the other hand, the husband has to purchase furniture from scratch when he moves to Australia, save for a small number of items which at the moment he seeks to retain.
38. The next significant tranche of assets relates to the proceeds of sale of the former matrimonial home now in the husband's solicitors' account; £447,851.
39. Then the wife has in her own name assets amounting to some £546,000 or a little less or a little more, depending upon the way in which the capital gains tax is payable on the sale of the very significant shareholding which she retains in the bank. She has 36,488 shares in the bank. They are valued at £533,000. If the whole holding were sold in one tax year that would attract a capital gains tax liability of some £90,000 or thereabouts. But, says Mr. Dyer, on the husband's behalf, that is artificial. Nobody in their right mind will sell the shares at that rate. There will be an orderly disposal over a period of years and so the deduction of the full £90,000 is an artificially high liability. I agree. I do not think it is possible to be precise but Mrs. Proctor is shrewd. I have no doubt that she will take the advice of the husband of her business partner, an accountant, and I have no doubt she will very considerably mitigate the ravages of capital gains tax on those shares. I propose in a rough and ready way simply to divide the figure in half to accommodate a more orderly realisation.
40. Dealing with the wife's final liability, she has a costs bill which amounts to the sum of £193,000 of which £45,000 remains outstanding. I do not propose to put that figure in the schedule at this stage.
41. Turning to the husband, the figures are now largely agreed. He has some £1.146 million pounds, largely in cash and in bank shares. There is a liability to capital gains tax of some £288,000 payable, come what may, payable on 31^st January 2007. It arises out of the transfer of the SCB shares to the wife as now to be found on her side of the assets schedule. It seems that that capital gains tax liability may have arisen because the husband may have been wrongly advised by a professional that it was not necessary to transfer those shares to his wife during the year in which they separated to avoid CGT. Accordingly, as things stand, he will have to find that capital gains tax.
42. It is suggested by Mr. Sharp that he may have a claim for professional negligence in relation to that capital gains tax liability because he was given the wrong advice. The difficulty the husband faces is that he does not have the advice in writing. Although, as Mr. Sharp rightly says, the husband has obviously acted upon some advice, one knows not precisely what, and I can see that any claim would to be long drawn out and fraught with risk. I take Mr. Sharp's point that there may be some, at the least, negotiation value in that poor advice if the husband can devote the energy to make the claim. However, the present CGT debt is too certain for me to ignore or, it seems to me, reduced by speculating on the outcome of the claim if it indeed exists.
43. Those, then, are the assets. The husband himself has also run up legal costs of some £183,000 and he, too, still owes his lawyers £22,000.
44. Apart from those assets which amount to just over 2.1 million pounds, there are the pensions amounting to nearly £800,000. This is mainly the husband's Bank of A UK Retirement Plan and it is already agreed that it should be split to achieve equality between the parties. That requires a pension share of some 54.4 per cent or thereabouts.
45. So those are the assets available for distribution and the liabilities.

The Income and Earning Capacities

46. I turn to consider next the question of Income and Earning capacity which has been a fruitful area for evidence and debate.
47. So far as the husband is concerned, his earning record has been impressive. For the last few years he has been earning between £400,000 and £500,000 a year. But, I do accept that it was always intended that he would leave this very high stress world of international banking sooner rather than later. He says it was to be at the age of fifty. That seems to me, having heard him, to make sense and I accept that the events of the early part of this year have done no more, in the end, than to accelerate his decision to leave and set up as a self employed consultant. In the circumstances that was an understandable and reasonable career decision which he was driven to make, as I say, rather earlier than he intended. He has provided two lots of figures for the prognosis of his future income. The latest is set out at bundle 3, page 278. It shows that in the year 2007 that he will not make a profit. But from the year 2008 and onwards he projects that his income will rise swiftly from just under £49,000 in 2008 through to £157,000 or thereabouts in 2011. This, of course, is all speculative. He has not yet moved to Australia. He has not yet managed to secure even one client. But he said that his experience in this area was unique and he is already energetically foraging around making contacts. I am quite satisfied that he will be earning well again before very long. I would not be at all surprised if the figures which he puts forward now are exceeded in the fullness of time.
48. So far as the wife is concerned, she, too, is an enterprising lady and always has been. I have her business plan which is a detailed, carefully worked document brought into being, no doubt, for the purposes of persuading banks to assist with their start up. The figures which she and her business partner have set out similarly show an increasing turnover from inception. The turnover starts at £80,000 and moves up to £170,000. Profitability rises from a low of £9,000 now to a figure in 2010 of £32,400 or thereabouts. In fact, the figures are already wildly wrong, as it turns out. She has already achieved in the present year the turnover contemplated in 2010. That is because she has managed to secure a very important client. So it is impossible for any exact science to be brought to bear in relation to her future earnings either. What is clear to me is that she is, as I have emphasised, talented and energetic business woman in her own right.
49. As I have already explained, she enrolled herself on a course and with her business partner identified an interesting niche market. She has started two companies, one to search for and another to refurbish properties, for those who have no time but apparently the necessary resources to pay others to take the strain out of house buying and alteration. She is proposing a further advertising campaign in the near future to expand her client base. The signs are very encouraging. But it is also right to remember that this too is early days and these are projections and no more than that. I think that she will achieve a profit of around £15,000 to £20,000 in the near future. She could well do much better than that in the longer term with her business acumen.

Standard of Living and 'Needs'

50. So what of the parties' standard of living and, against that background, their needs for the future? There is no doubt they lived very well, especially when they were living the glitzy life of the ex-pat in the Far East. It is also clear that S G was refurbished with flair and style and to the highest possible standard. It was a grand property but it was one they only occupied together for a short period during the marriage, measured in months.
51. The children and their carer, namely, the wife, are the priority in this case so far as their needs are concerned and particularly their housing. I have been shown a range of estate agents' particulars and the rival contentions are really not very far apart in the end. The principal issue is whether or not the wife should purchase within the immediate inner part of Bath city or whether it would be more appropriate for her to be a few miles outside Bath where the properties are a little cheaper. The issue is not really very great. The husband contends that about £650,000 or a little more would be proper provision for the wife and the children. The wife seeks £750,000 including her costs of moving, stamp duty and the like. I think, and I do not say this merely because it lies in the middle, the figure does lie around about the £700,000 mark. I think with that figure the wife will be able to buy for herself, either within or outside Bath, a nice house which with her talents she will refurbish in an attractive way.
52. But the husband's needs are not to be forgotten. He needs cash to re-establish himself, virtually from scratch, in Australia. He needs a decent home for the children when they come and visit. I have seen various projections as to what he needs, both in relation to housing and set up costs. Australia is obviously cheaper than the south of England and certainly cheaper than London. Looking at the figures overall, he will need between £600,000 and £650,000 for housing and set up costs and to cover his expenses in the period before his consultancy income comes on stream.
53. Turning to the question of income requirement, the wife has produced a budget for the purposes of this hearing. It totals some £77,000 per annum, including provision for the children. It has been treated to the customary scrutiny by the husband's counsel and, of course, it is always possible to criticise figures and pare them down. I have to consider what is a reasonable level of income for a wife with two children living in this area but against the background of the financial resources as they now are. I think the proper figure is in the region of £60,000 net a year for herself and the children, maybe a more at the moment, taking account of the fact that she is paying the not inconsiderable costs of professional counselling and support for the children.

Contributions

54. As I have already indicated, prior to the marriage the husband was already, to some extent, established, beginning to accumulate some capital and pay into a pension. The wife also had a small pension but little else. So, looked at very simplistically, all the present assets, with the exception of those few that the wife had prior to the marriage, are the fruit of the husband's labour in a highly stressful field.
55. But that is to look at the matter simplistically. These were assets which he generated as the breadwinner during the period when the parties were living as husband and wife. By way of continuing contribution, he will continue to support the children via the periodical payments that have been agreed and I shall order. And he will most likely have the burden of increasing school fees as well. But this is subject to his success as a consultant about which I am, as I say, optimistic.
56. The wife too has made a contribution of equal value in its own way. She had a serious career when she met her husband. I have no doubt she would have established herself in a senior position in years to come. But the parties took the decision, early on, that they would have children and the husband would become the main bread winner. So the wife then became a supported wife and mother and that situation will continue for many years to come. The husband will be far away. She has, as I say, the extra burden of looking after the children on a day to day basis without much respite, albeit with the great reward of day to day contact with them during their formative years.
57. So, at the end of the day, there is nothing to choose between them so far as their contributions to this marriage past, present and future are concerned. I bear in mind that the wife's earning capacity has been impaired but, beyond that, I will not go in this case (or, I anticipate, in the majority of cases).
58. Mr. Sharp has drawn my attention to some passages in the speeches in Miller: Mcfarlane 2006 1FLR 1186 . In particular some passages in the speech of Baroness Hale where she has highlighted some of the rationales which may, in a given case, necessarily be implicit in achieving fairness and which should be born in mind in the divisionary process which is at the heart of any ancillary relief application. They are very helpful in ensuring the court achieves a fair result and does not become stuck or formulaic in its approach as it has done from time to time in the past (e.g. when the Duxbury formula tended to overwhelm proper consideration of all the S25 factors). However, care needs to be taken to ensure these passages are not treated as some kind of quasi statutory amendment. They are the commentary of the House of Lords on a very well trodden statute now in its fourth decade.
59. The word "compensation", which has been used frequently during this hearing, does not appear in the statute. Does it, I wonder, in the end, add anything to the concept of "financial obligations and responsibilities which each of the parties has" deriving from S25(b) ? Obligations arise, surely, because of the parties' contributions, equal but different, (including career sacrifice) at the beginning, during the marriage and beyond its end. Baroness Hale has very usefully highlighted this as an underlying principle and reminded the courts of its importance in a given case but it is not new.
60. Further, it is neither possible nor desirable to break up, artificially, these ancillary relief claims into separate heads of claim as if they were actions for damages for personal injury. In this jurisdiction there is only one finite pot of resources which has to be divided between the two parties fairly by balancing their competing claims by reference to S25. That is a world away from a civil claim where the resources of the defendant are irrelevant to the calculation of the claim and which is made up by aggregating separate heads of damage. In this jurisdiction every £1 or percentage point added to one side subtracts in equal measure from the other. The S25 balancing exercise is very sensitive to even a slight adjustment which can produce an exaggerated discrepancy /result.
61. I begin to detect creeping in from some quarters a new methodology or approach akin to a damages claim, in order to bring some greater science to these applications and in the ceaseless craving for certainty which constantly inhabits the fertile mind of the specialist advocate. Mr. Dyer tells me that he has already been engaged in a case where it is suggested that expert evidence should be called to establish the value of the wife's loss of earnings/earning capacity caused by her marriage !
62. In my judgement, any such approach is totally misconceived and likely to lead to double counting (as Baroness Hale warned). It is a blind alley at the mouth of which a "no entry" sign should now be firmly planted.
63. In this case the parties made a life-choice early on in their marriage; that they would have children and so the wife would cease to work. That was a life-choice made by them both with all its pros and cons. From then on her contribution has been just as full as the husband's but different. At the end both are entitled to a full share of the fruits of their combined and equal contribution; she to ensure that she has a secure future both with and later without the children and the husband so that he can re-establish himself. She has earned it, as Lord Nichols stressed in Miller . And so has he. This is not largesse by the husband, it is her entitlement deriving from her valuable contribution .
64. But it is simply not possible (and highly undesirable and costly) to conduct, additionally, a speculative "what if ..?" exercise to reconstruct the parties marriage on a different basis. Talk of "compensation" in this case has added nothing except confusion and the real risk of double counting.
65. This marriage was some fourteen years in length, not the longest of marriages but the actual length is overshadowed by the fact of the wife's continuing contribution; there are the twins who will require support both financially and in every other way for many more years to come.

Conclusion

66. So I bear in mind all the drivers under section 25: resources, needs, obligations, responsibilities, contributions, past, present and future; and all the other well known factors. My overarching aim is to achieve a fair outcome. The wife needs (and is entitled) to have enough for a home and a secure income via the capital she already has and will have, her own very real earning capacity and the pension sharing order.
67. Both sides have produced scenarios based on their various submissions. Mr. Dyer has produced a print out from the Capitalise programme indicating that on his figures the wife will have a secure income of £50,000 a year based on amortising all her capital over the course of her life. But I agree with Mr. Sharp that that is too harsh and simplistic a way to look at the wife's position. .
68. I have come to the conclusion that the right lump sum to achieve the overall security to which I regard her as entitled is £325,000. The net effect of that is that, overall, the wife will have some 1.8 million pounds, including the pension. After she has housed herself at the level which I have suggested, she will have in excess of 1.1 million pounds, including, of course, the pension share. It is indeed true that applying, simplisticly, the Duxbury formula to that figure achieves an income of around £50,000 net a year for life but that is no more than a limited cross-check because part of the resource is held in the pension. However, she has, in addition to that, an earning capacity in a fairly short time of some £15,000 a year. She will have also £12,000 a year periodical payments for the children and, although I do not think that will provide much spare, it is, nevertheless, an important subsidy to her overall living expenses. She will retain the lion's share of the contents of the house and the prospect, in the distant future, of some further resource from her mother's home.
69. The effect of this split is that the wife will exit with about sixty per cent of the assets, the husband with about forty per cent. But from his forty per cent the husband will have to find the secure fund for the children's future maintenance over the next few years. Applying the cross-check of equality, plainly the wife is exiting with twenty per cent more of the assets than the husband. That is a proper additional proportion that she should have. It is necessary, firstly, because of the parties wish to achieve finality today, secondly, the children's needs call for it, and, thirdly, the husband has a far greater prospect so far as longer term earnings are concerned.
70. So far as the pension share is concerned, it will be at 54.5 per cent as suggested by Mr. Sharp.
71. The child periodical payments will be expressed to run on until the end of tertiary education. My experience is that there will be a support element required for the children during that period and the likelihood is they will go on to some kind of tertiary education. How precisely the periodical payments will be split at that stage will obviously remain to be decided at that time.
72. So far as the future school fees are concerned, the provision is already agreed for the next three and a half years with the secure fund. The terms upon which that will be held have been suggested by Mr. Dyer in a draft order which he has produced. They look to me to be uncontroversial save that I will provide that, if there is any surplus (and, of course, it is a matter for the husband whether there will be) it should remain in the fund until the question of the future of the children's private education is determined by further agreement or, in the last resort, order.
73. In the light of the evidence now given by the husband, and in the light of the preamble now contained in the proposed draft order which the husband consents to, I am not prepared to order the husband to pay beyond that date. That is not in any way to fail to recognise the wife's concerns, merely that to impose a legal obligation on anybody at the level that is required for school fees nowadays, in the absence of, at the moment, any means to pay, I think would be wrong in principle and I am not prepared to do it. I have made it plain, however, that I would expect the husband to continue to pay the school fees if his income achieves the figures which he has estimated or, indeed, anything like them. It is plainly of the highest priority that these children, particularly Toby, receive the best possible start in life. But I am saying nothing controversial. Both parents aspire to the best for their children and I am again cautiously optimistic that following today it will be possible for them to discuss the question of the children's future education without too much difficulty. I think the preamble will provide the wife with a very considerable measure of comfort but I am not prepared to make an order, as I say, at this stage.
74. So far as the contents are concerned, the concession has been made by the husband that the wife can retain everything, both in the way of day to day goods and the valuable items. He has put in a schedule in which he lists the items he wishes to take; some nineteen items or thereabouts and, on that basis, he will not ask for anything further. I shall order the wife to hand those items to him save for the cassette player and the treadmill as a first and simple way of dealing with these contested items. Both sides, unsurprisingly, have emotional attachment to some of these items which they have acquired in their postings around the world. Of course, my order does not in any way rule out the possibility of the parties coming to some separate negotiation following this order but the bottom line is that, failing any further agreement, the limited contents which the husband seeks he should retain, save for those two items. The wife says that she would be more than happy for him to have a great deal more of the contents and she would suggest that there should be a system whereby they take it in turns to choose. I can see some merit in that but, as I say, rather than insist upon that route, which, if it is not carried out in the correct spirit, will lead to discord and acrimony, I will make the decision which I have leaving it open to the parties to discuss it further if they wish against that fall back order.
75. There remains only the question of the interim provision. At the present time the husband is paying £3,640 a month together with rent until the end of February and the storage charges. The cash from the proceeds of sale is now available for distribution and can be paid to the wife immediately. The offer by the husband within the last hour or so has been to continue to pay the rent and periodical payments for the children until February and, on the basis that the wife will have then received the house funds. Mr. Sharp urges me to continue the interim arrangement until the conclusion of the rental agreement. I think, on balance, I shall so provide, save that the storage charges will no longer be to the husband's account. He will continue to pay as per the interim arrangement and the changeover will take place when the tenancy finishes.

And Finally

76. Once again a high profile case (Miller : Mcfarlane [2006] UKHL 24 ) heard at the highest level sends seismic reverberations throughout the whole system; touching every district registry and lawyer's office in the land. And even though it is a "big money" case and so, in theory, within a minute proportion of the overall case load in this field and of limited application. Pandora can be heard rattling her keys as every line of the decision is subjected to scrutiny by microscope for innovative arguments and approach. By way of example of one such novel approach; applications for costly valuations of assets at different points/stages during a marriage are now emerging in the preliminary stage of cases. Another very undesirable consequence is that clean breaks seem to be becoming more difficult to achieve, despite the statutory imperative to achieve one where reasonably possible, as claimants attempt to build up their entitlement by aggregation. This was potentially one such case.
77. Of course, in more ways than one, it is all highly invigorating for the jurisprudence, endlessly fascinating for the practitioners, and a check against it becoming moribund and out of step with modern mores. However, the downside is that it creates very real uncertainty as to outcome and thus consensual disposal of individual cases in this huge and, sadly, ever growing area of litigation (which, directly or indirectly, touches most families in the land) becomes that much harder to achieve and that much more costly. After three decades of silence (1970 -2000) when the House of Lords declined to give any guidance, there have now been two momentous decisions in six years. They run to hundreds of paragraphs. In addition they have been subjected to further interpretation in cases in the Court of Appeal and /or below. A new statute could not have had more far reaching social or forensic consequences. At present, on the ground, considerable confusion abounds.
78. Baroness Hale acknowledged that the courts' task was not only to move the law on but to provide clear guidance and, as far as possible in a discretionary field, certainty so as to assist citizens to settle their highly charged disputes fairly, sensibly and cheaply. In all humility, may I make a plea for a period of reflective tranquillity? I believe that would now be most helpful; to the courts at first instance, the practitioners and the families involved in the litigation. S25 says it all, thereafter perhaps for the moment at least, the less said the better.