How (if at all) should future non-financial contributions yet to be made by one of the parties to a marriage or civil partnership be taken into account when calculating the quantum of periodical payments?

MCA 1973 s 25(2)(f) states as follows:

‘(f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family.’

It is trite to state that the court must not discriminate between the parties – as Lord Nicholls stated in White v White [2000] 2 FLR 981 at p. 989 under the heading of ‘Equality’:

‘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 … 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 para (f), relating to the parties’ contributions. This is implicit in the very language of para (f): “… the contribution which each has made or is likely … to make to the welfare of the family, including any contribution by looking after the home or caring for the family”. 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.’

As was recognised in Juffali v Juffali [2017] 1 FLR 729 per Roberts J at [78]:

‘The implications of a significant future period of ongoing contribution towards the welfare or care of a child of the family was neatly summed up by Holman J in Murphy v Murphy [2014] EWHC 2263 (Fam) when he said “the having of children changes everything” (paragraph 35).’

But are future non-financial contributions made by ‘caring for the family’ always recognised?

In A v M [2021] EWFC 89 Mostyn J was clear that the marital acquest was to be calculated as at the date of final hearing:

‘[14] … In my opinion this should be the general rule unless there has been needless delay in bringing the case to trial. I gave my reasons for this view in my recent decision of E v L [2021] EWFC 60 at [71]–[73],1 which I do not repeat here. Shortly put, it is normally the right date because the economic features of the parties’ marital partnership will have remained alive and entangled up to that point. The fruits of the partnership will not have been divided and distributed. The share of one party in the partnership assets is likely to have been unilaterally traded with by the other. I accept that a different view might be taken in respect of a completely new asset brought into being during the interregnum between separation and trial. But that is not the case here. Here we are concerned with assets acquired pre-separation but worked on during the period up to trial.’

If the end date for the calculation of the marital acquest is the date of final hearing, then financial and non-financial contributions by the parties between the dates of separation and final hearing are treated equally (and hence the potentially discriminatory result of rewarding post-separation endeavour by the ‘bread winner’ alone is avoided).

But what about non-financial contributions that are yet to be made? In A v M Mostyn J continued as follows:

‘[17] I divert at this point to dismiss, briefly but emphatically, a submission by Mr Webster QC that the wife should be entitled to share in carry generated by the husband after the date of trial by virtue of her “contributions to the family” in caring for the parties’ 12 year old daughter who is at boarding school. This argument crops up from time to time and is completely untenable. The concept of the sharing of the acquest is predicated on the parties being in an economic partnership. The decision of the judge at trial is to dissolve the partnership and to distribute fairly, which means normally equally, the partnership assets. The idea that a valid claim can be made to share assets which have already been divided and distributed, or to share earnings or profits which have been generated after the dissolution of the partnership, is completely unprincipled. It would be a good thing if this argument were finally to bite the dust.’

As Mostyn J makes clear, this analysis is based on the concept of sharing being predicated on the parties being in an economic partnership which has now ended and hence a valid claim cannot be made to share earnings or profits which are yet to be generated and will only be generated after the dissolution of the partnership. It is an analysis consistent with Waggott v Waggott [2018] 2 FLR 406 (an earning capacity is not capable of being a matrimonial asset to which the sharing principle applies and an applicant therefore has no continuing entitlement to share in its product) and Jones v Jones [2011] 1 FLR 1723 (a capital value should not be ascribed to a spouse’s earning capacity).

However, it may be argued that when considering the quantification of periodical payments courts can (and do) reflect future non-financial contributions.

A recent example of this is TW v GC [2024] EWHC 949 (Fam) per Cusworth J (1 March 2024) when considering an appeal where the first instance judge capitalised the wife’s £100,000 pa award on a full-life basis over nearly 50 years and did not reflect the authorities to the effect that the longer the period over which the capitalisation was to provide for the less likely it was that the paying party would be required to maintain the marital standard of living.

As Cusworth J observed, this principle had been set out in Juffali v Juffali per Roberts J at [79] (iii) (original emphasis):

‘There is an inter-relationship between the level at which future needs will be assessed and the period during which a court finds those needs should be met by the paying former spouse. The longer that period, the more likely it is that a court will not assess those needs on the basis throughout of a standard of living which replicates that enjoyed during the currency of the marriage.’

Roberts J had previously said something similar in AB v FC (Short Marriage: Needs: Stockpiling) [2018] 1 FLR 965 at [77].

A similar observation was made in HO v TL [2023] EWFC 215 per Peel J:

‘[78] The use of the standard of living as a benchmark will depend on all the facts of the case. The longer the duration for which needs are to be met in the future, the more likely it is that the court will not assess those needs at the marital standard of living throughout that period …’

In TW v GC Cusworth J cited from Juffali v Juffali at length as ‘I consider that the consideration of earlier authority which preceded … paragraph [79] in the judgment add necessary context’. Having done so he set out paragraph [79] in full:

‘Thus, what I collect from these decisions are the following principles:

(i) The first consideration in any assessment of needs must be the welfare of any minor child or children of the family.

(ii) After that, the principal factors which are likely to impact on the court’s assessment of needs are: (i) the length of the marriage; (ii) the length of the period, following the end of the marriage, during which the applicant spouse will be making contributions to the welfare of the family; (iii) the standard of living during the marriage; (iv) the age of the applicant; and (v) the available resources as defined by section 25(2)(a).

(iii) There is an inter-relationship between the level at which future needs will be assessed and the period during which a court finds those needs should be met by the paying former spouse. The longer that period, the more likely it is that a court will not assess those needs on the basis throughout of a standard of living which replicates that enjoyed during the currency of the marriage.

(iv) In this context, it is entirely principled in terms of approach for the court to assess its award on the basis that needs, both in relation to housing and income, will reduce in future in an appropriate case.’

Thereafter Cusworth J continued as follows:

‘[28] Whilst Roberts J was entirely right to collect those principles in the context of her case, the following may fairly be noted:

a. A future reduction in the level of need may be principled ‘in an appropriate case’; that does not mean that in no case where payments are to be calculated over a long period will a fixed lifetime Duxbury ever be appropriate.

b. As Moylan J made clear in BD v FD [[2016] EWHC (Fam) 594], in the case of a long marriage, where there were ample resources to meet the claim, the longer the length of the marriage and/or the periods over which the applicant spouse would be making ongoing contributions to the welfare of a child or children of the family, the more likely the court will decide that the applicant spouse’s needs should be provided for at a level which is similar to the standard of living during the marriage.

c. Here, the judge would have been entitled to consider that four of the five factors collected by Roberts J at [79 ii] from Moylan J’s earlier exposition would have pointed in the direction of a continuance of the marital standard, namely the length of the marriage, the length of time over which the wife would continue to support a minor child, the standard of living and the available resources. Only the wife’s relatively young age would have pointed in the other direction.’

Therefore, although the sharing principle does not apply to income that is yet to be earned, in the case of a long marriage, and where there are ample resources to meet the claim, the longer (i) the length of the marriage; and/or (ii) the periods over which the applicant spouse will be making ongoing contributions to the welfare of a child or children of the family, the more likely the court will decide that the applicant spouse’s needs should be provided for at a level which is similar to the standard of living during the marriage and the quantum of the periodical payments calculated accordingly. So although future non-financial contributions to the welfare of the family do not ground a sharing claim to income that is yet to be earned, they can increase the quantification of periodical payments by the reflection of the marital standard of living for longer than may otherwise have been the case. It may be said that this is an reflection of the express wording of s 25(2)(f). In this context at least, the having of children may indeed ‘change everything’.