Recorder Rhys Taylor in financial remedy proceedings makes findings in favour of the wife as to the date of separation of the parties.

The parties cohabited from 1978 and married in 1980 but could not agree the date of separation. W contended it was 2021 and H contended it was 2014. This was key to his argument in favour of post-separation accrual. There are two children of the marriage but both are now adults.

The FMH

The SJE figure came in at €203,000. W suggested that this was the correct figure and H alleged in court that W had paid the SJE to ‘bump up the price’. This point could not be properly tested as it only came out in H’s evidence and Recorder Taylor concluded he was making it up as he went along. The SJE report therefore went unchallenged and put on H’s side of the schedule – due to his wish to keep the property.

The date of separation

It was W’s case that because her mother was diagnosed with dementia and required care, the parties agreed that W would relocate to their Italian home from 2015 and they would visit each other. In 2017 her mother died. W returned to England in 2018, continuing her cohabitation with H.

H contended she had permanently moved to Italy in 2014 but they remained on good terms. H also suggested he had had another relationship, thus proving his marriage was over. W argued that she had given H another chance after an affair but H did not sever the connection fully with the other woman and W applied for a divorce on 13 November 2021.

The evidence in favour of H’s date of separation was his relationship with another woman, the sale of the FMH in 2014 and the proceeds being split between the parties, H finding a bedsit in which he could stay rather than a property for them both, and W opening up an English bank account in her maiden name.

The evidence in favour of W’s 2021 was the number of different dates given by H in different pleadings, the fact that the parties agreed W would relocate to look after her mother and that they would visit and call each other during this time, that H kept money from the sale of W’s car in 2016, that W bought a car in the UK, which was at odds with a permanent relocation, photos together, and H stating in the ES1 that there was no post-matrimonial property.

The judge found in favour of W as there were clear explanations for all of H’s points against W which did not suggest the marriage was at an end.

Recorder Taylor set out the authorities on duration of marriage including IX v IY (Financial Remedies: Unmatched Contributions) [2018] EWHC 3053 (Fam), [2019] 2 FLR 449, MB v EB (Preliminary Issues in Financial Remedy Proceedings) [2019] EWHC 1649 (Fam), [2019] 2 FLR 899, VV v VV [2022] EWFC 41, [2023] 1 FLR 170, DE v FE [2022] EWFC 71, Cazalet v Abu-Zalaf [2023] EWCA Civ 1065, [2024] 1 FLR 565. He considers that the authorities conflict in relation to whether the court can consider the parties’ subjective opinion on whether the relationship was matrimonial/quasimatrimonial.

The 2014 agreement

H also asserted that there was an oral agreement in 2014 that nothing after 2014 would be shared between the parties. It was found that there was no agreement because the evidence of the agreement from H was considered ‘odd and formal’, it could not be recalled in sufficient detail, and there was no evidence to suggest that W had ever been paid.

Post Separation Accrual

The husband asserted that his savings were post-separation accrual, but could not explain the origins of his savings. In turn, the judge could not tell whether the money was non-matrimonial in character or not and H’s argument did not succeed. The date for computing the assets was the date of trial per DR v UG [2023] EWFC 68, E v L [2021] EWFC 60, and A v M [2021] EWFC 89.

The ultimate result was a 50:50 split of the £1.5m assets (excluding cars and pensions where each retained their own). This was considered to be a ‘full fat’ sharing claim.