S v S [2023] EWFC 2697 June 2023

Published: 08/04/2024 15:33



HHJ Booth prefers Moylan LJ’s approach to matrimonial/non-matrimonial property, in which a scientific approach only takes one so far and the court must apply its discretion, over Mostyn J’s more scientific and formulaic approach.

Final hearing in a long marriage, sharing case in which H disputed the date of separation and armed himself with a KC and junior to fight W ‘tooth and nail’ and leave W with ‘nothing or everything’.

The judge’s preliminary view after day two of the three-day hearing triggered H to finally make a realistic offer. The very late offer did not save H from a costs order.


  • Date of separation
  • Post-matrimonial acquest
  • Quantum of lump sum
  • CGT
  • Late offers
  • Costs


H and W had total assets of about £11,000,000. They had effectively agreed to divide their pension assets with a pension sharing order (W 70.4% of H’s pension provision), distribute houses, and retain assets in their own names. The final hearing was to determine the lump sum that H should pay W.

H ran an aggressive case regarding the date of separation; H argued that W had been motivated by greed. The judge found that greed was in fact H’s motivation and not W’s. As a result of H’s case, W endured a great deal of cross-examination from H’s KC about her sex life with H; W’s barrister described this as ‘distasteful’ and ‘humiliating’. H included photographs in the trial bundle, which the judge found had been included primarily to humiliate W. The same photos destroyed H’s case on the date of separation.


The judge was against H on the date of separation, finding with W that the marriage breakdown was in September 2021, not as H had contended in 2010 or, 2019 at the latest.

The judge set out that the case law on matrimonial or non-matrimonial property indicated two potential approaches:

  1. Mostyn J’s scientific and formulaic approach in which there must be some closely argued rationale behind every financial decision that the court makes, or
  2. Moylan LJ’s approach in which a scientific and formulaic approach can only take the court so far and that the court must exercise a broader discretion or judicial evaluation, applying the test of fairness.

HHJ Booth preferred Moylan LJ’s approach, stating:

‘The whole point of the legislation and the total absence of any formulae or guidance allows the Court to craft a bespoke solution in every case.’

HHJ Booth commented that a formula can only take the court so far when it applies the test of fairness which was a broader discretion than a scientific formula.

H’s offer on the morning of the final day of the hearing was a more realistic albeit late offer that the judge used as the starting point for his award.

The judge made adjustments to H’s offer for:

  1. CGT (S v S predated the CGT changes in the Finance (No. 2) Act 2023).
  2. Interest on W’s litigation and living expenses loans – taken because H unreasonably refused to provide financial support.

The judge allowed H’s post-matrimonial acquest to be taken out of the calculation and then shared the matrimonial assets broadly 50/50.

However, the judge then made a costs order against H to reflect that there was a three-day hearing, the focus of which was on the date of separation – a ‘dishonest and hopeless factual case’.

The judge ordered H to pay W’s costs attributable to the issue of separation and W’s costs from 20 May 2023 (the date that the judge determined that H should have made a realistic offer).

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