Sharing and the Family Home

Published: 06/07/2022 07:05

Historically, a wife’s property was absorbed into that of her husband on marriage, and she was not capable of ownership in her own name thereafter. This situation, after some modest changes in the 1870s, finally changed for good with the Married Women’s Property Act 1882 (MWPA 1882). This transformative statute meant that marriage no longer altered property rights simply by coming into existence: what the parties owned prior to marriage remained theirs upon it, and a wife could also own property acquired during marriage. This created the possibility of title and possession disputes between spouses. The statute empowered the court to resolve those disputes under MWPA 1882, s 17, which stipulated that the judge could, in summary proceedings, ‘make such order with respect to the property in dispute as he thinks fit’.

This provision remained the outstanding forum for property dispute between spouses until the Matrimonial Proceedings and Property Act 1970 (MPPA 1970).

Up to the early post-war era, the court approached MWPA 1882, s 17 disputes as strictly declaratory. The court’s function was to establish parties’ true ownership intention at the time of acquisition, and then give effect to that intention. For example, in Re Roger’s Question [1948] 1 All ER, Evershed LJ described his task as:

‘to try to conclude what at the time was in the parties’ minds and then to make an order which, in the changed conditions, now fairly gives effect in law to what the parties, in the judge’s finding, must be taken to have intended at the time of the transaction itself.’

The primary analytic method was to work out what funds the parties had respectively contributed and order a division that reflected those figures. Given the need to prove intention/contribution, the main asset that came before the court under MWPA 1882, s 17 was the family home, and its contents. Proving ‘intention’ to share in a business, for example, was beyond the intellectual bounds of the law at that stage, and proving financial contribution to the same would have been impossible for almost all spouses as well.

However, the approach of focussing strictly on financial contribution became harder for the court to sustain in the face of social change during the post-war era. Rising house prices produced financial windfalls, and came alongside increasing rates of owner occupation. Both phenomena were spurred by the development of consumer mortgage products, which, being paid off over time, often made it more complicated to say who had actually ‘paid’ for an asset, especially when one factored in the ‘freeing up’ of the breadwinner’s income that was facilitated by the homemaker. The unfairness done to women by focussing strictly on the money in these circumstances became more obvious. For example, the Moreton Commission 1956,1 discussing the witness evidence of the respondents to its paper, noted (paras 626–627, p 170):

‘There were witnesses who were primarily concerned about the status of the wife in the marriage partnership … the aim of these witnesses was therefore to secure that the law should effectively recognise that the wife’s contribution to the marriage partnership, by her services in the home, is equal to that of the husband as breadwinner.

As specific instances of injustice to the wife, the following were cited: …

(iv) she can lay no claim to a share in the home and the furniture except to the extent that she can prove that she as contributed out of her own separate income.’

What was more, the statute book was not keeping up with the pace of change and the demand for reform. The court’s powers were limited to maintenance until the Matrimonial Causes Act 1963, when the power to award a lump sum was conferred. It was only with the MPPA 1970 that the court received expressly discretionary powers to transfer property between spouses.

In these changing circumstances, the cases heard under MWPA 1882, s 17 between 1953 and 1969 show a move away from a ‘strict’ assessment of intended ownership, and toward an expansive approach intended specifically for the matrimonial context. This approach involved the invention of the concept of the ‘family asset’, as can be seen below.

(1) In Rimmer v Rimmer [1953] 1 QB 63, the Court of Appeal dealt with a claim under MWPA 1882, s 17 in respect of a home in the husband’s name, contributed to in unequal shares (the wife overall providing less). The husband ‘turned out’ the wife and sold the property at a significant profit. At first instance, the court awarded rateable shares on a resulting trust basis. Evershed MR, sitting with Denning and Romer LLJ (Evershed and Romer were both judges with a Chancery background) unanimously allowed the wife’s appeal for the proceeds to be divided equally, holding that where it was impossible to come to a clear view of intention, ‘equality is equity’. Romer LJ concluded his judgment with the following observation, suggesting different principles may apply to the case of a husband and wife:

‘It seems to me that the only general principles which emerge from our decision are, first, that cases between husband and wife ought not to be governed by the same strict considerations, both at law and in equity, as are commonly applied to the ascertainment of the respective rights of strangers when each of them contributes to the purchase price of property, and, secondly, that the old-established doctrine that equity leans towards equality is peculiarly applicable to disputes between husband and wife, where the facts, as a whole, permit of its application.’

(2) In Cobb v Cobb [1955] 2 All ER 696, the court at first instance found the couple intended for their jointly owned property to be theirs jointly, but went on to make an order treating the property as belonging to the husband, with a charge in favour of the wife amounting to the level of her contributions. The wife successfully appealed. Denning LJ gave the lead judgment, articulating the concept of a ‘family asset’, the quintessential example being the matrimonial home:

‘in the case of the family assets, if I may so describe them, such as the matrimonial home and the furniture in it, when both husband and wife contribute to the cost and the property is intended to be a continuing provision for them during their joint lives, the court leans towards the view that the property belongs to them both jointly in equal shares. This is so, even though the conveyance is taken in the name of one of them only and their contributions to the cost are unequal … ’

The concept of the ‘family asset’ is linguistically important in the judgment as it creates the possibility of a new form of asset onto which the court is capable of imposing a result that may conflict with title, equity, contribution or original intention.

(3) In Fribance v Fribance [1957] 1 All ER 357, the Court of Appeal (again with Denning LJ giving the lead judgment) leaned toward a presumption of equality still further. Another property almost entirely financed by the husband and in his name, at first instance the wife got a modest interest on a resulting trust basis. The High Court on appeal made a declaration of a trust in equal shares. The Court of Appeal dismissed the husband’s second appeal. Denning LJ, giving the lead judgment, declined to find an intention, but instead held as follows:

‘In many cases, however, the intention of the parties is not clear, for the simple reason that they never formed an intention: so the court has to attribute an intention to them. This is particularly the case with the family assets, by which I mean the things intended to be a continuing provision for them during their joint lives, such as the matrimonial home and the furniture in it … So long as they are living together, it does not matter which of them does the saving and which does the paying, or which of them goes out to work or which looks after the home, so long as the things they buy are used for their joint benefit … The title to the family assets does not depend on the mere chance of which way round it was. It does not depend on how they happened to allocate their earnings and their expenditure. The whole of their resources were expended for their joint benefit – either in food and clothes and living expenses for which there was nothing to see or in the house and furniture which are family assets – and the product should belong to them jointly. It belongs to them in equal shares.’

(4) While Fribance at least mentioned ‘intention’, in Hine v Hine [1962] 3 All ER 345, the court departed from it completely. In this case, the wife made the preponderant contribution through inheritance and her business to a property bought shortly before the end of the marriage. The court below found the intention was to share equally and made an order on that basis. The wife appealed. The Court of Appeal allowed her appeal, Denning MR giving the lead judgment that, in our view, represents the high water mark of treating MWPA 1882, s 17 as a ‘discretionary’ jurisdiction:

‘We are here considering a “family asset”, the matrimonial home, something acquired by the spouses for their joint use, with no thought of what is to happen should the marriage break down. In such a case, it is rarely of any use to ask what the parties intended to be done if the marriage broke down; for, as a rule, they do not contemplate any such thing … It seems to me that the jurisdiction of the court over family assets under s 17 is entirely discretionary. Its discretion transcends all rights, legal or equitable, and enables the court to make such order as it thinks fit. This means, as I understand it, that the court is entitled to make such order as appears to be fair and just in all the circumstances of the case.’

It is notable that his judgment in this case departs from the (effective) presumption of equality which appears in the cases since Rimmer. The crucial conceptual step is identifying the family home as a ‘family asset’. Denning MR takes this as a licence to treat an asset in a discretionary manner to achieve fairness: something otherwise impossible under any other Act. If an asset was not a ‘family asset’, it follows, there would not be the equivalent freedom to make a ‘fair and just’ order.

(5) Similarly, in Appleton v Appleton [1965] 1 All ER 44, the husband sought a declaration of an interest in a family home solely funded by the wife and in his sole name on the basis of work done to improve the value of the property. This was a case where there was no direct financial contribution at all. At first instance, his claim was dismissed. Denning MR allowed him a share in the property commensurate to the increase in value from his work, holding as follows:

‘As the husband pointed out to us, when he was doing the work in the house, the matrimonial home, it was done for the sake of the family as a whole. None of them had any thought of separation at that time. There could be no occasion for any bargain to be made as to what was to happen in case there was a separation, for it was a thing which no one contemplated at all … [in those circumstances] … I prefer to take the simple test: What is reasonable and fair in the circumstances as they have developed, seeing that they are circumstances which no one contemplated before?’

(6) Lastly, Ulrich v Ulrich & Fenton [1968] 1 All ER 67, Diplock LJ, dealing with a case for a variation of marriage settlement, discussed applications under MWPA 1882, s 17, and approved the use of the phrase family assets, saying as follows:

‘It comes to this: where a couple, by their joint efforts, get a house and furniture, intending it to be a continuing provision for them for their joint lives, it is a prima facie inference from their conduct that the house and furniture is a “family asset” in which each is entitled to an equal share. It matters not in whose name it stands: or who pays for what: or who goes out to work and who stays at home. If they both contribute to it by their joint efforts, the prima facie inference is that it belongs to them both equally …’

Diplock LJ’s conceptualisation of the ‘family asset’ is slightly different to Lord Denning’s: he treats it as an entitlement to an equal share, whereas Denning LJ, by this stage, sees identification of a family asset as a licence to make an order that achieves fairness (frequently the same as equality). This nuance aside, the collective effect of these judgments meant that by the late ’60s, the test being applied under MWPA 1882, s 17 was vastly different from the ‘true intention’ approach contemplated by the earlier cases. To our ears, it sounds very much like the White/post-White jurisprudence,2 albeit couched in slightly different terms and confined to the family home in scope.

However, Ulrich was to be the last Court of Appeal case before the House of Lords came – for the first time – to grapple with the issue of real property distribution arising from the breakdown of marriage in two cases. The first was Pettitt v Pettitt [1969] 2 WLR 966 and the second was Gissing v Gissing [1970] UKHL 3. Together, they put a firm stop to the development of the law summarised above.

In Pettitt, the husband sought an interest in property the wife had inherited during their marriage, and they had lived in as a family home, under MWPA 1882, s 17, by way of having made a contribution arising from his labour on the property. His share was upheld by a reluctant Court of Appeal, which felt bound by Appleton. Allowing the wife’s appeal, the House of Lords took the chance to consider the development of the concept of ‘family assets’ and claims under MWPA 1882, s 17 more generally. Lord Reid indicated his disapproval of the state of the law in trenchant terms:

‘The meaning of the section cannot have altered since it was passed in 1882. At that time the certainty and security of rights of property were still generally regarded as of paramount importance and I find it incredible that any Parliament of that era could have intended to put husbands’ property at the hazard of the unfettered discretion of a judge (including a county court judge) if the wife raised a dispute about it.’

Lord Morris took a similar view:

‘One of the main purposes of the Act of 1882 was to make it fully possible for the property rights of the parties to a marriage to be kept entirely separate. There was no suggestion that the status of marriage was to result in any common ownership or co-ownership of property. All this, in my view, negatives any idea that s17 was designed for the purpose of enabling the court to pass property rights from one spouse to another. In a question as to the title to property the question for the court was – “Whose is this” and not – “To whom shall this be given.”’

The House of Lords disapproved Appleton and Hine, and (in Gissing) Diplock LJ’s discussion of the concept of family assets in Ulrich. The ‘Rimmer’ approach of imputing an equality where it was not possible to ascertain intention was strictly confined to those cases where it was genuinely not possible to work out what the parties intended. The House of Lords – implicitly disapproving Romer LJ in Rimmer – took the view that the principles that bound questions of determination of property as between husband and wife were identical to those that bound unrelated parties, Lord Morris concluding:

‘The duty of the court in an application under section 17 will not differ from its duty in a situation where the question of title arises not as between husband and wife but by reason of an outside claim.’

Gissing put an end to the development in the ’50s and ’60s of the law under the MWPA 1882 and effectively ended the concept of the ‘family asset’, at least for the time being.

However, those judgments were themselves almost immediately overtaken by events with the advent of the MPPA 1970. This provided the court with its first power to deal directly with real property via transfer of property orders, on an expressly discretionary basis. This power was then re-enacted unaltered in the Matrimonial Causes Act 1973 (MCA 1973).

It was initially unclear what the effect of the Act was – and whether it was ‘radical’. The Law Commission Report No 25 (1969),3 which recommended the Act, had considered, but rejected, the creation of a ‘family property’ regime:

‘We do not, in the present exercise, wish to introduce any concept of matrimonial or family property, which, if it is to be introduced, will require the most careful consideration and present difficult problems of definition.’

Proposals to introduce community of property regime were also rejected by the government in debate during the bill’s passage. When Lady Summerskill proposed the introduction of a presumption of equal division, Lord Chancellor Gardiner answered as follows:4

‘Are half the wife’s hard earned savings to go to pay the husband’s bookmaker? Are half his business assets acquired independently of his domestic life, to be taken away from the business and given to a woman who knows nothing about business?’

Whether the statute would change the court’s approach was accordingly unclear. Lord Denning got the first go at clarifying the issue, in Wachtel v Wachtel [1973] 1 All ER 829. The court at first instance had made an order that the husband pay to the wife a half share in the family home and a maintenance order of £2,000 p.a. (a high proportion of his income). The appellant husband contended that:

‘the judge had but lightly concealed his view that the 1970 Act had brought about a new concept of community of property so that it was just to give every wife – or at least almost every wife – half the value of the matrimonial home on the break-up of the marriage, and about half her husband’s income.’

Giving the lead judgment, Lord Denning pronounced the MPPA 1970 a revolutionary statute that should fundamentally change the approach of the court. Having despatched ‘conduct’ as the main feature of the statutory principles, he went on consider the effect of the statute on the family home. A little disingenuously, given his own form in the area, he characterised the history of the cases under MWPA 1882, s 17 as being bound by proving actual financial contribution:

‘But by a long line of cases … it has been held by this court that, if a wife contributes directly or indirectly, in money or money’s worth, to the initial deposit or to the mortgage instalments, she gets an interest proportionate to her contribution. In some cases it is a half-share. In others less.

The court never succeeded, however, in getting a wife a share in the house by reason of her other contributions; other, that is, than her financial contributions.’

However, in his view, the MPPA 1970 was an express recognition that non-financial contributions could found an interest in marital property:

‘we may take it that Parliament recognised that the wife who looks after the home and family contributes as much to the family assets as the wife who goes out to work. The one contributes in kind. The other in money or money’s worth. If the court comes to the conclusion that the home has been acquired and maintained by the joint efforts of both, then, when the marriage breaks down, it should be regarded as the joint property of both of them, no matter in whose name it stands. Just as the wife who makes substantial money contributions usually gets a share, so should the wife who looks after the home and cares for the family for 20 years or more.’

In Wachtel, however, the court treated both capital and income as amenable to ‘sharing’, and, if the wife was to have a share in both, she could not expect as much as 50%, given the ongoing demand on the husband’s income by way of an income share:

‘If we were only concerned with the capital assets of the family, and particularly with the matrimonial home, it would be tempting to divide them half and half, as the judge did. That would be fair enough if the wife afterwards went her own way, making no further demands on the husband. It would be simply a division of the assets of the partnership. That may come in the future … But we do not think it should be as much as one-half, if she is also to get periodical payments for her maintenance and support …’

Wachtel is nowadays often mocked for its patriarchal language and the unsatisfactory nature of the ‘one-third rule’. But the judgment is far sighted in its focus on the equal importance of the non-financial contribution made, and the entitlement of the financially weaker spouse to ‘share’ in assets through their incommensurate contribution. As we will see, this sort of language did not truly find favour again until White.

The Wachtel route was, after a few years, unfollowed: in modest claims the one-third rule was of limited assistance in meeting needs in most ordinary cases. Denning MR himself refused to extend the concept of sharing into business assets, holding, in Trippas v Trippas [1973] Fam 173, that:

‘The wife cannot claim a share in the business as such. She did not give any active help in it. She did not work in it herself. All she did was what a good wife does do. She gave moral support to her husband by looking after the home. If he was depressed or in difficulty, she would encourage him to keep going. That does not give her a share.’

Instead, the court became almost entirely focussed on the concept of ‘reasonable requirements’, i.e. a solely needs-based award. The Court of Appeal began to firmly deprecate the approach of looking at percentage shares. In 1978, for example, Cummings-Bruce LJ in Scott v Scott [1978] 1 All ER 65 declared that the court’s task ‘had nothing to do with fractions and the one-third rule, it is an attempt to deal with the future of the two parties … the dominant feature is the necessity of providing for three young children and the requirement of providing a home for them by means of mortgage payments’. Ormrod LJ similarly cautioned against its use in Preston v Preston [1981] 3 FLR 46, again, focussing on the practicalities of need.

By the late ’70s, ‘reasonable requirements’ completely supplanted the ‘sharing’ approach mooted in the ’50s and ’60s cases discussed above and canvassed by Denning MR in Wachtel. Many of the reported cases involved comparatively high levels of wealth, in which the family home was only a small element. In this context the departure from equality (or even the Wachtel one-third) could be stark, while still meeting a generous assessment of need. To take three of the ‘big’ cases from the era:

  1. In Preston v Preston [1982] Fam 17, the assets amounted to £2.35m, £100k of which was in the jointly owned family home. The wife received a lump sum by instalments of £600k on the basis of ‘reasonable requirements’.
  2. In Gojkovic v Gojkovic [1992] Fam 40, the wife received a payment of approximately 35% of the overall asset base (a £1m lump sum and a maisonette worth £295k).
  3. In Dart v Dart [1996] EWCA Civ 1343, [1996] 2 FLR 286 the wife received the family home and a payment of £9m, in the context of a case she asserted to be worth c. £244m.

Specific consideration of the ‘share’ in the family home was not relevant to the overall determination of these cases. And, at a lower level, just as now, the driver of the award was needs, which tended to be governed by children and mortgage raising capacity, rather than anything more high-flown.

White ended this line of ‘reasonable requirements’ cases. Interestingly, it is one of very few House of Lords’ cases that discuss the MCA 1973 at all (the only other, Piglowski v Piglowska [1999] UKHL 27, [1999] 1 WLR 1360, turned chiefly on the interference with discretion on appeal). Rather like the law pre-Pettitt, financial remedies had developed almost entirely at Court of Appeal level.

Lord Nicholls gave the lead judgment. Called to the Bar in 1958, his time as a law student and early years as a Chancery barrister had coincided with the high water mark of equitable concepts as applied to divorce, largely by Lord Denning. Lord Nicholls was a huge admirer of Lord Denning: his 2015 memoir (pointedly titled Let Equity Prevail5) concludes with a chapter in praise of him as one of the greatest influences on his career. Remembering his days as a law student when he had ‘loved’ Lord Denning for his ‘determination to find or fashion a way to give effect to the “merits” of a case’, and eulogising his radical judgments of the ’50s and ’60s that prioritised purposive fairness over strict notions of law, he concluded, ‘The judgments of Lord Denning are not cited as much now as in the last century. This is not an adverse reflection on his jurisprudence. Rather, the system has now accepted and absorbed his reforms and moved on from there’.

In White, Lord Nicholls was himself doing much of the ‘absorbing’ of Lord Denning. His judgment is of a piece with those earlier Lord Denning authorities that had been left largely unfollowed (Wachtel) or disapproved (Appleton and Hine). The famous passage of White would have equally found a home in Fribance or Ulrich (quoted above):

‘But there is one principle of universal application which can be stated with confidence. In seeking to achieve a fair outcome, there is no place for discrimination between husband and wife and their respective roles. Typically, a husband and wife share the activities of earning money, running their home and caring for their children. Traditionally, the husband earned the money, and the wife looked after the home and the children. This traditional division of labour is no longer the order of the day. Frequently both parents work. Sometimes it is the wife who is the money-earner, and the husband runs the home and cares for the children during the day. But whatever the division of labour chosen by the husband and wife, or forced upon them by circumstances, fairness requires that this should not prejudice or advantage either party when considering paragraph (f), relating to the parties’ contributions … If, in their different spheres, each contributed equally to the family, then in principle it matters not which of them earned the money and built up the assets. There should be no bias in favour of the money-earner and against the home-maker and the child-carer … ’

The debt to Lord Denning is clear even in the staccato sentence style.

White looked radical largely because Pettitt and Gissing had put an end to this sort of discussion in the earlier cases, and ‘reasonable requirements’ had overtaken the nascent sharing theory set out in Wachtel. But, at least as far as ‘sharing’ goes, White was a revival, rather than a creation, of an equitable language that had been developed nearly half a century before. Insofar as White had a radical quality, it was that it did not confine the analysis to simply the capital in the home.

When the court got to Miller v Miller; McFarlane v McFarlane [2006] AC 618, [2006] 1 FLR 1186, it was concerned with the ambit of family property, the principle of ‘sharing’ in the marital assets in the modern era having been established in White. Lord Nicholls’ judgment raises the possibility that a family home is a ‘de facto’ matrimonial asset, whatever the duration of the marriage, and it is therefore amenable to sharing ([22]):

‘One of the circumstances is that there is a real difference, a difference of source, between (1) property acquired during the marriage otherwise than by inheritance or gift, sometimes called the marital acquest but more usually the matrimonial property, and (2) other property. The former is the financial product of the parties’ common endeavour, the latter is not. The parties’ matrimonial home, even if this was brought into the marriage at the outset by one of the parties, usually has a central place in any marriage. So it should normally be treated as matrimonial property for this purpose. As already noted, in principle the entitlement of each party to a share of the matrimonial property is the same however long or short the marriage may have been.’

Lord Nicholls’ judgment formed the minority opinion of the House of Lords (in a fairly technical way, as their Lordships agreed with substantial parts of the judgment), as the analysis of the case by McFarlane LJ in Sharp v Sharp [2017] EWCA Civ 408, [2017] 2 FLR 1095 made clear. It is not, however, clear that this part of Lord Nicholls’ judgment was in the minority, as their Lordships who agreed with Baroness Hale only made express their disagreement with different parts of his decision.

The majority accepted Baroness Hale’s view that there was a category of ‘family assets’. However, throughout her discussion, she made clear that the family home is a prime example of a ‘family asset’ irrespective of contribution. Baroness Hale did not spend a great deal of time on the family home per se, apparently taking it as read this would be a ‘family asset’ and it would generally be divided equally. She approved (at least in part) Lord Denning’s definition of family asset in Wachtel. Of course, Lord Denning’s concept of ‘family assets’ was not a shorthand for treating assets equally, but a device for treating assets fairly.

Subsequent case law has been consistent in considering the family home as matrimonial property to be subject to sharing, with the above dicta from Lord Nicholls oft cited in support. In one of the first cases post-Miller; McFarlane, in S v S (Non-Matrimonial Property: Conduct) [2006] EWHC 2793 (Fam), [2007] 1 FLR 1496, Burton J stated the former matrimonial home was matrimonial property whatever the source and duration of the marriage.

This was further reflected on by Wilson LJ in K v L (Non-Matrimonial Property: Special Contribution) [2011] EWCA Civ 550, [2011] 2 FLR 980, who used non-matrimonial contributions towards a former matrimonial home as an example to demonstrate when the important of the source of the assets may diminish over time ([18], original emphasis):

‘Thus, with respect to Baroness Hale of Richmond, I believe that the true proposition is that the importance of the source of the assets may diminish over time. Three situations come to mind: …

(c) The contributor of non-matrimonial property has chosen to invest it in the purchase of a matrimonial home which, although vested in his or her sole name, has – as in most cases one would expect – come over time to be treated by the parties as a central item of matrimonial property.’

However, the theme through most of the cases following Miller; McFarlane has been that, while the matrimonial home is usually subject to sharing, it does not necessarily follow that the sharing should be equal, particularly where there has been an unmatched contribution. This has often been ‘asserted’ more than justified, in our view. This perhaps reflects the conceptual strangeness of defining something as a central ‘matrimonial asset’ but not considering in fairness that the entitlement is equal. Notwithstanding this, prior to Sharp the sharing of the family home has been part of a discretionary exercise in considering the treatment of the asset as part of overall fairness. Consequently, the treatment of the former matrimonial home bears a resemblance to Denning’s discretionary approach under MWPA 1882, s 17, particularly in Hine, in departing from the (effective) presumption of equality, while recognising that the family home is a special form of asset to which different considerations apply.

(1) In NA v MA [2006] EWHC 2900 (Fam), [2007] 1 FLR 1760, the assets Baron J had to consider comprised of the husband’s inheritance. It was therefore ‘not a case where there should be an equal division of assets’ as there was little marital property but ‘the former matrimonial home falls into a somewhat different category position’ citing the above dicta from Lord Nicholls. However, Baron J concluded ‘I do not take that to mean that the property must be divided equally but its value and the lifestyle that it produced are relevant factors in the court’s consideration of fairness’. She later repeated this view in Y v Y (Financial Orders: Inherited Wealth) [2012] EWHC 2063 (Fam), [2013] 2 FLR 924.

(2) In Vaughan v Vaughan [2007] EWCA Civ 1085, [2008] 1 FLR 1108, Wilson LJ considered a former matrimonial home which had been owned by the husband mortgage-free prior to the marriage with an inheritance from his father. The property was placed into the parties’ joint names towards the end of the marriage. Wilson LJ noted that even after a long marriage with two children ([49]):

‘Although, in the words of Baroness Hale in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 618, [2006] 1 FLR 1186 at 663E and 1223 respectively, “the importance of the source of the assets will diminish over time”, I consider that the husband’s prior ownership of the home carried somewhat greater significance than either the district or circuit judge appears to have ascribed to it.’

(3) Similarly, Mostyn J cited Vaughan in S v AG (Financial Orders: Lottery Prize) [2011] EWHC 2637 (Fam), [2012] 1 FLR 651, [9] when considering principles of matrimonial and non-matrimonial property in relation to a lottery prize, that despite the matrimonial home being matrimonial property ‘even the matrimonial home is not necessarily divided equally under the sharing principle; an unequal division may be justified if unequal contributions to its acquisition can be demonstrated’. He later repeated this view in JL v SL (No 2) (Appeal: Non-Matrimonial Property) [2015] EWHC 360 (Fam), [2015] 2 FLR 1202.

(4) In FB v PS [2015] EWHC 2797 (Fam), [2016] 2 FLR 697, [120]–[121] and [123], Moor J considered a former matrimonial home which was effectively owned by the husband’s father and purchased prior to the marriage. The husband’s father funded substantial refurbishment works to the property for the husband and wife after their marriage and the property was subsequently transferred to the husband’s name during the marriage:

‘120. AR was therefore the matrimonial home for some 15 years. Given the dicta of Lord Nicholls of Birkenhead, I can only find that it is matrimonial property but I do not accept that this means that it is to be shared between the parties. AR was not acquired by the parties themselves during the marriage. It had been a matrimonial home of TS and his wife, since 1982. The husband and his siblings were brought up there. The transfer itself is a very significant unmatched contribution, now worth some £3.5m gross.

121. In exactly the same way, the cost of the refurbishment works was a large unmatched contribution. I have already found that TS was properly remunerated for his work with Co X, even after deducting the living expenses of £500,000 that he paid on behalf of the husband and wife. I did not include the expenses of refurbishing AR when I made this finding. Indeed, these costs came at a time when the management fees paid to TS were far lower than they became later when Co X was far more successful. …

123. Moreover, I am sure that the works will not have increased the value by anything like the full amount spent. The husband is therefore entitled to a significant departure from equality to reflect these unmatched contributions.’

Thus, the value of the property was removed from the schedule of assets, less £500,000 to reflect sums invested in Co X and the increase in value which would have occurred had the parties purchased an alternative property. The approach used by Moor J in determining what was fair for the wife to share in has some similarities to Denning MR’s quantification of post-marriage contribution by the husband in Appleton.

However, in Sharp, McFarlane LJ gave a careful analysis of the ratio in Miller, but appeared to take the view that the former matrimonial homes fell to be divided equally even in a short marriage notwithstanding the unmatched contributions to the properties, saying that it was inappropriate to exclude the properties from equal division, given he was excluding liquid capital that he had determined was to be treated as a unilateral asset ([115]):

‘In calculating the award, and in view of the fact that the wife’s liquid capital is not to be treated as part of the matrimonial assets for equal sharing, it is not appropriate to take account of the husband’s concession regarding the SD property, which was purchased prior to the marriage. Both properties were matrimonial homes and, as such, properly fall to be divided equally between the parties.’

Again, this shows the elision between two concepts: on the one hand, McFarlane LJ notes that they fall to be divided equally as a matter of principle (as Diplock LJ suggested in Ulrich, and as accords with a reading of Lord Nicholls’ judgment in Miller; McFarlane). On the other hand, he has only decided to do so after standing back and looking at the overall award (suggesting it is still a discretionary exercise concerning overall fairness). It is interesting that the husband’s legal team had made a concession on this point, presumably on the basis they were expecting pre-marital contributions to this property to be counted as significant, and that they would succeed on equal division of the funds generated by the wife during the marriage.

Other cases following Sharp have subsequently reverted back to imposing an unequal division of the former matrimonial home in circumstances where it is fair to do so. Instead of there being a mechanical equal share of the asset regardless of the length of the marriage and contributions, the broad discretionary exercise continues to take priority.

Cohen J in AD v BD [2020] EWHC 857 (Fam), [123] considered treatment of the matrimonial home in circumstances where he found that the entire purchase and renovation costs were provided to the husband as a gift just 3 years before the marriage came to an end:

‘Notwithstanding the provenance of the funds there is no doubt that all property is available to be shared between the parties on divorce. However, normally non-matrimonial property will not be shared unless need requires. Is the matrimonial home in these circumstances to be treated as matrimonial property?’

After reconsidering Lord Nicholls in Miller; McFarlane and Wilson LJ in K v L as quoted above, Cohen J concluded 40% of the home would be deemed to be a matrimonial asset and he would add to the acquest £1.648m on the following basis:

‘127. There are a range of cases in which homes, often homes on family estates, which became matrimonial homes upon marriage have been excluded from division between the parties or subject to a sharing whereby the division was far from an equal one. It is unnecessary for me to lengthen this judgment by going through them. …

128. In my judgment it would not be right for me to treat the whole of the matrimonial home as subject to equal sharing between the parties. I bear in mind in particular the following:

i) This is the first property owned by the parties and was bought only 3 years before separation;

ii) The whole of the purchase price came not from H but from F;

iii) The property was, no doubt at the direction of H’s father, registered in the sole name of H.

129. On the other hand, it would not be right for me to exclude it entirely. I bear in mind that:

i) This was not a short marriage. It was a marriage of 8 years that produced 2 children;

ii) On H’s own proposal it will remain the home of W and the children for some 17 years until the younger child finishes a first degree.’

Similarly, in E v L (Financial Remedies) [2021] EWFC 60, [2022] 1 FLR 952, [45], Mostyn J reiterated that the court could still order the unequal sharing of the former matrimonial home which was non-marital:

‘For my part I would say (as I have said before when talking about the rarity of sharing of non-matrimonial property) that a case where there can be a legitimate non-discriminatory unequal sharing of matrimonial property earned in a short marriage will be as rare as a white leopard. I have said “earned” to draw a distinction between money generated during a marriage and an asset brought into a marriage which has been “matrimonialised”, such as a dwelling used as a matrimonial home. I accept that the law recognises the possibility of unequal sharing of such an asset: see Vaughan v Vaughan … ’

Thus, it appears that Sharp was the anomaly in ignoring the substantial unmatched non-matrimonial contributions to the former matrimonial home and ‘automatically’ awarding the other party an equal share of the asset.

Having considered the full run of the cases, we think Sharp probably is anomalous on this point. The court has never equally shared a family home in a mechanical fashion. The development of the jurisprudence of the family home in the ’50s and ’60s shows that, at the high water mark of those cases, the characterisation of a home as a ‘family asset’, subject to special considerations was a linguistic device that enabled the court to escape the strictures of the traditional MWPA 1882, s 17 exercise, and instead attempt to impose a discretionary solution they felt was fair in all the circumstances: they were frank on this point by Hine. The law at this point was developing in the context where the only capital that the court would entertain interference with was the family home.

The function that identification of the asset as a ‘family asset’ served was to open it up to discretionary remedies that transcended the normal rules of law and equity. It was not to impose a mechanical equal share, although one of the obvious discretionary solutions to achieve fairness was to share in the asset equally. We believe that this is the long-dormant thread that was revived and extended by Lord Nicholls in White and by him and Baroness Hale in Miller; McFarlane. Even though Lord Nicholls identified the family home as, almost inevitably, matrimonial property, exploring the intellectual genesis of this idea as it relates to the family home suggests that he cannot be taken to have meant that this would automatically lead to an equal sharing of this asset, rather, that it would be dealt with fairly, recognising its special status at the centre of the marriage. The court should not be abashed about sharing unequally in the family home in the right case: the genesis of the concept of ‘matrimonial property’ shows that fairness is its lodestar, which, while often the same thing as equality, can also take many other forms.

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