Judgments - Miller (Appellant) v. Miller (Respondent) and McFarlane (Appellant) v. McFarlane (Respondent)

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    158.  That is undoubtedly more than she would need to get herself back to where she would have been had the marriage not taken place. But that has never been the express objective of the law, even in the 1970s and 1980s when the Court of Appeal supported such an approach in short childless marriages. Even without the former statutory objective, the court has to take some account of the standard of living enjoyed during the marriage: see section 25(2)(c). The provision should enable a gentle transition from that standard to the standard that she could expect as a self-sufficient woman. But she is also entitled to some share in the assets. The couple had two homes and there is no reason at all why she should not have a share in their combined value, together with other assets obviously acquired for the benefit of the family. She is also entitled to some share in the considerable increase of the husband's wealth during the marriage. Had the yardstick of equality been applied to all the assets which accrued during the marriage, she would have got much more than she did. In my view the judge was wrong to take account of the reasons for the break-up of the marriage, but there was a reason to depart from the yardstick of equality because those were business assets generated solely by the husband during a short marriage. Whether one puts this as the result of the contacts and capacities he brought to the marriage or as the result of the nature and source of the assets generated (or, put another way, whichever the rationale one chooses from GW v RW [2003] 2 FLR 108), it comes to much the same thing.

    159.  Together her shares in the home and the other assets would amount to something so close to what the judge awarded that it would not be right to disturb the figure which he, with his unrivalled experience as a trial judge in such cases, considered fair. Accordingly, I would dismiss Mr Miller's appeal.


My Lords,

    160.  I have had the benefit of reading in draft the speeches of my noble and learned friends Lord Nicholls of Birkenhead and Baroness Hale of Richmond. Happily, as Lord Hope has observed, there is very substantial common ground, with which I also concur, in the two comprehensive speeches of Lord Nicholls and Baroness Hale, and it would be wrong to venture on a third full speech covering the same ground. The main difference between the two speeches relates, as I see it, to the area covered by Lord Nicholls in paragraphs 17-19 and 54 and by Baroness Hale in paragraphs 148-152.

    161.  I would however add some observations on particular points, including that area, relating to the appeal in Miller v. Miller. First, I agree that both the courts below decided the case on an erroneous legal ground, in so far as they accepted the wife's contention, based on the Court of Appeal's decision in G v. G (Financial Provision: Separation Agreement) [2004] 1 FLR 1011, that the husband's supposed bad conduct, falling short of the threshold stated in section 25(2)(g) of the Matrimonial Causes Act 1973, could be taken into account "as a significant counterbalancing factor to the point made on behalf of the husband that this was a short marriage".

    162.  In this connection, Singer J said:

    "37.  This marriage may well have been doomed, but my conclusions …. are these. H may well have developed an irritation with aspects of W's personality and behaviour. This reflects more his lack of adaptability than any shortcomings on her part. The sum of what he complains is not marriage-breaking stuff. I do not subscribe to his view that his burgeoning relationship with the woman with whom he lives was a consequence rather than a cause of the breakdown.

    38.  None of this, to state the obvious, is conduct which it would be inequitable to disregard in arriving at a resolution of the financial dispute. But it has the result that it would be unfair to W to concentrate solely on the bare chronology of this marriage without acknowledging that she did not seek to end it nor did she give H any remotely sufficient reason for him to do so."

    163.  The Court of Appeal followed its reasoning in G v. G, and held that Singer J was entitled to "give much less weight to the duration of the marriage than he would have done had he found that the wife was to blame for its breakdown or that the parties had separated consensually each acknowledging unexpected incompatibility" (per Thorpe LJ, paragraph 31). Thorpe LJ went on in paragraphs 39-40 to cite paragraph 48 of the judge's judgment as showing that:

    "the decisive factor for the judge was that the marriage, taken in its full context, gave the wife a legitimate entitlement to a long term future on a higher plane of affluence than she had enjoyed prior to marriage".

    164.  There can be few who marry believing that their marriage will be short-lived, however likely this may be on the statistics. Reasonable expectation of a long marriage cannot itself justify ignoring the reality if it is short-lived. Where there is no conduct which it would be inequitable to disregard, the court should not seek to weigh the parties' respective conduct or attitudes in an attempt to assess responsibility for the breakdown of a marriage, or to attribute "legitimacy" or "reasonableness" to the wish of one party to continue the marriage against the wishes of the other. One problem about any such attempt is evident from the first sentence of paragraph 37 of the judge's judgment quoted in paragraph 162 above. If "this marriage may well have been doomed", what significance can there be in the fact that one party recognised this earlier than the other? How is one to judge between harsh realism and wishful thinking? More fundamentally, section 25(2)(g) recognises the difficulty and undesirability, except in egregious cases, of any attempt at assessing and weighing marital conduct. I now recognise the same difficulty in respect of marital contributions - conduct and contributions are in large measure opposite sides of a coin: see e.g. G v. G (Financial Provision: Equal Division) [2002] 2 FLR 1143, per Coleridge J at paragraph 34.

    165.  Both decisions below therefore involved a potentially significant error of approach. The error requires reconsideration of the judge's and Court of Appeal's conclusions as to the appropriate award. The error was obviously material to their reasoning in arriving at their decisions.

    166.  Secondly, the course of this litigation has to my mind been complicated by the fluctuating stance taken on the part of the respondent, Mrs Miller, in relation to what has been described as the matrimonial acquest, the increase in value of the parties' assets during the marriage. Before Singer J Mrs Miller claimed a share of such increase. But Singer J, having heard expert evidence on both sides, found difficulty in ascertaining its size to the point where, as I read his judgment, he effectively abandoned the search for such a measure altogether: see paragraphs 49 to 64 of his judgment. The respondent did not seek to revisit this aspect until the appeal to your Lordships' House, when in her written case and oral submissions she argued that more specific account should have been taken of the matrimonial acquest, and sought to demonstrate that certain conclusions could safely be drawn about its size.

    167.  Thirdly, this is the area where the approaches of Lord Nicholls and Baroness Hale diverge in some measure, at least in principle. On the one hand, on Lord Nicholls' approach, non-matrimonial property is viewed as all property which the parties bring with them into the marriage or acquire by inheritance or gift during the marriage (plus perhaps the income or fruits of that property), while matrimonial property is viewed as all other property. The yardstick of equality applies generally to matrimonial property (although the shorter the marriage, the smaller the matrimonial property is in the nature of things likely to be). But the yardstick is not so readily applicable to non-matrimonial property, especially after a short marriage, but in some circumstances even after a long marriage.

    168.  On the other hand, Baroness Hale's approach takes a more limited conception of matrimonial property, as embracing "family assets" (cf Wachtel v. Wachtel [1973] Fam 72, 90 per Lord Denning MR) and family businesses or joint ventures in which both parties work (cf Foster v. Foster [2003] EWCA Civ 56; [2003] 2 FLR 299, 305, paragraph 19, per Hale LJ). In relation to such property she agrees that the yardstick of equality may readily be applied. In contrast, she identifies other "non-business-partnership, non-family assets", to which that yardstick may not apply with the same force particularly in the case of short marriages; these include on her approach not merely (a) property which the parties bring with them with into the marriage or acquire by inheritance or gift during the marriage (plus perhaps its income or fruits), but also (b) business or investment assets generated solely or mainly by the efforts of one party during the marriage.

    169.  Baroness Hale acknowledges that the difference between the two approaches will in the great majority of cases be irrelevant. Further, it seems to me that after a short marriage it may in reality often be difficult to determine precisely what assets (other than family assets) were generated during the marriage. The present case is an example, with arguments about whether Mr Miller can be said (by reason of his contacts, his gentleman's agreement with Mr Duffield and/or his experience) to have brought into the marriage any asset relating to his potential interest in New Star. To take into account the shortness of a marriage could enable a court to cut through some of these more intricate arguments in a manner consistent with section 25(2)(d) of the 1973 Act. More fundamentally, to allow the duration of a marriage as a relevant factor would cater for the considerations that, while some people may make a large amount of money in a short time, the nature of their work or other factors may mean that they do not do so at a consistent rate over their lives as a whole or for more than a short period of their lives, and furthermore, as Baroness Hale has pointed out, that there may be long-term risks in relation to non-business-partnership, non-family assets which remain with those directly involved in generating them. The longer the marriage, the less likely these are to be significant considerations. In a short marriage, the timing of which may or may not coincide with a period of significant increase in the value of non-business-partnership, non-family assets, such considerations argue in favour of some further flexibility in the application of the yardstick of equality of division. I see force in and would agree with the views expressed by Baroness Hale in paragraphs 151-152 of her judgment to the effect that the duration of a marriage, mentioned expressly in section 25(2)(d) of the Act, cannot be discounted as a relevant factor.

    170.  Fourthly, and whatever the position on the third point, I agree with what Baroness Hale has said in paragraph 153, which is, as I see it, also consistent with the last sentence of paragraph 25 of Lord Nicholls' speech. The present marriage had what one might call a traditional aspect. Mr Miller worked, and Mrs Miller gave up work to look after him. But there can be marriages, long as well as short, where both partners are and remain financially active, and independently so. They may contribute to a house and joint expenses, but it does not necessarily follow that they are or regard themselves in other respects as engaged in a joint financial enterprise for all purposes. Intrusive enquiries into the other's financial affairs might, during the marriage, be viewed as inconsistent with a proper respect for the other's personal autonomy and development, and even more so if the other were to claim a share of any profit made from them. In such a case the wife might still have the particular additional burden of combining the bearing of and caring for children with work outside the home. If one partner (and it might, with increasing likelihood I hope, be the wife) were more successful financially than the other, and questions of needs and compensation had been addressed, one might ask why a court should impose at the end of their marriage a sharing of all assets acquired during matrimony which the parties had never envisaged during matrimony. Once needs and compensation had been addressed, the misfortune of divorce would not of itself, as it seems to me, be justification for the court to disturb principles by which the parties had chosen to live their lives while married.

    171.  Fifthly, Singer J was inclined to assimilate to property inherited or brought into a marriage property which was generated by one spouse "using his or her pre-marriage assets or on the back of his or her pre-marriage 'fledged' experience" (paragraph 69). The word "fledged" arises from the reasoning of Mr Nicholas Mostyn QC in a judicial capacity in GW v. RW (Financial Provision: Departure from Equality) [2003] EWHC 1 Fam; 2 FLR 108, paragraph 51, where he treated "a developed career, existing high earnings and an established earning capacity" as "as much a non-marital asset as the provision of hard cash" and as "a contribution unmatched by any comparable contribution by W". In the present case, Mr Mostyn QC representing Mrs Miller was accordingly prepared before the judge to discount any claim by Mrs Miller relating to the matrimonial acquest (from 50% to 37.5%) to take into account that Mr Miller "brought very valuable acquired expertise and acumen to this marriage".

    172.  A possible difficulty about this approach is that it reintroduces, at the commencement of the marriage, a requirement to attempt to assess and compare the value of the contributions which each party is or would be likely to make during or apart from the marriage. I am not very confident that an established earning capacity or very valuable acquired expertise and acumen would, if viewed as "assets" brought into a marriage, be easily or reliably measurable or comparable with other qualities, or indeed how far would one carry the enquiry into expertise and acumen. The concept of "fledging" is probably anyway one which would diminish in relevance, the longer the marriage, so that, in the light of the answer I would give to the third point above, the answer to this fifth point may be correspondingly less important.

    173.  On the other hand, where at the beginning (or end) of the marriage an actual transaction is under way or in view which in due course yields a considerable new asset, there is no difficulty in principle (even if there may be some difficulty in valuation) in accepting that part of that asset may have to be excluded from any assessment of the matrimonial acquest or included in what the parties brought into the marriage. In the present case, Mr Miller already had, at the marriage date, real connections in the form of the Jupiter funds which he later took to New Star and real prospects under the gentleman's agreement made with Mr Duffield of acquiring, as he subsequently did, valuable shares in New Star. I would regard these as real contributions brought into the marriage, which should on any view be taken into account accordingly.

    174.  Sixthly, if account is taken of the increase in the value of the parties' assets during the marriage (the matrimonial acquest), a question may arise about the date up to which one should measure it. Should this be up to date when the parties ceased effectively to live as married partners (here April 2003), as Mr Mostyn considered in his judicial capacity in GW v. RW (Financial Provision: Departure from Equality) at paragraph 34? Or should it be up to a later date such as the date of trial, or even, in a case where an appellate court thinks it right to re-exercise the discretion, up to the date of the appellate decision? Reference was made by Mr Mostyn to my remarks in Cowan v. Cowan [2002] Fam 97, paragraphs 130-135. The matters to which the court must have regard under section 25 include several which exist or appear likely as at the date the court has regard to them (cf section 25(2)(a), (b), (f) and (h)). Others of the listed matters require the court to look back at the past (e.g. section 25(2)(c), (f) and (g)). To the extent that the focus is on the matrimonial acquest, the period during which the parties were making their different mutual contributions to the marriage has obvious relevance. The present may be viewed as a case (paralleling the then unreported decision of Coleridge J in N v. N (Financial Provision: Sale of Company) [2001] 2 FLR 69 to which I referred in Cowan v. Cowan) where the increase in value of the New Star shares between separation in April 2003 and trial in October 2004 or judgment in April 2005 was contributed to by the husband's further investment of time and effort, independently on its face of any contribution by the wife. Further, Mrs Miller had here no right to, and could not have been given, any part of Mr Miller's New Star shareholding in relation to which Mr Miller carried the risk. Mrs Miller has at all times been living in the house, which has now been formally transferred to her. Her only further claim was to a sum of money, assessed by the judge at £2.7 million (which Mr Miller paid in two instalments in May and June 2005). Mr Miller cannot easily be said in this case to have been holding on to any asset which should have been Mrs Miller's, or to owe anything other than money. Assuming that the focus is on assets acquired during the marriage, rather than on the husband's overall means, it seems to me therefore natural in this case to look at the period until separation.

    175.  Seventhly, so far as concerns the resolution of this appeal, Mr Miller was a very wealthy man both before and at the end of the marriage. Leaving on one side the New Star shares, he had brought into the marriage in July 2000 assets of £16.7 million and he had at the time of separation in April 2003 assets of £17 million and at the time of trial assets of £17.7 million. The New Star shares had been promised to Mr Miller by Mr Duffield under the gentleman's agreement of May 2000, whereby Mr Miller would, if he could, move from Jupiter and would join, and receive shares, in a new company - New Star - which Mr Duffield in fact established in June 2000. The realisation of this gentleman's agreement depended on Mr Duffield arranging for Commerzbank to release Mr Miller. Mr Duffield was able to arrange this on 22nd November 2000, and Mr Miller was allotted 200,000 shares for £200,000 on 31st January 2001.

    176.  Of the 200,000 shares, 75,000 were subject to an option agreement, and Mr Miller was subject to restrictions precluding him from realising any immediate value in respect of any of them. He was also subject to "share leaver" arrangements, whereby he could, in certain circumstances (e.g. dismissal for cause), be obliged to dispose of all 200,000 shares at par, i.e. for £200,000. . On a number of occasions after January 2001, New Star raised money by issuing further shares, subject to differing rights or restrictions (the effect of which was not explored before the House), at prices varying from £80 for E shares in March 2001, to £150 for G shares in December 2001, to £80 for A shares in September 2003 and £90 in October 2003. Monies so raised were used to expand the business and to acquire the rights to manage further funds. Funds under management increased from £300 million in January 2000 to £8.5 billion at trial in October 2004, gross annual income grew from £17.58 million to £83.5 million, and annual income before interest, tax, depreciation and amortisation was minus £8.8 million in New Star's initial trading period but had become a positive £23.77 million by trial.

    177.  The experts put before the judge widely varying figures for the value of Mr Miller's shares at trial, ranging from £12.35 million to £18.11 million on a notional sale between willing vendor and purchaser, in each case after allowing a discount to reflect the possibility that Mr Miller's employment might be terminated in circumstances requiring him to dispose of the shares at par. At the end of the day, all that the judge was confident enough to say was that there was "a good likelihood that at some stage the potential of his shares will be unleashed" (paragraph 41) and, more specifically, that unless Mr Miller was unlucky enough to trigger an obligation to sell his shares at par, he was "likely to receive £6M gross upon the exercise by the end of December 2006 of the option he was required to enter into to sell 75,000 of his shares for £80 each" (paragraph 63).

    178.  In the event Singer J concluded simply that Mrs Miller should, for as long as she might wish, have the opportunity to continue to live in the former matrimonial home, the value of which was £2.3 million, and that in addition Mr Miller should transfer to her the sum of £2.7 million, which should generate a net annual income of about £98,000 p.a., making her "able to live to a very tolerable standard in that house". He concluded his judgment by saying in paragraph 73:

    "A global award equivalent to £5M (plus the furniture and chattels which have been agreed) seems to me a fair outcome irrespective of whatever value H in due course may achieve for the New Star shares".

    179.  As I have already indicated, the reasoning which led to this conclusion cannot be sustained, so that the House must reconsider the appropriateness of the judge's award afresh.

    180.  The relevance of the value of the New Star shares at the date of trial is in the context of this case also open to question (cf my sixth point above). But even at the date of separation in April 2003, the 125,000 shares not subject to any option must have had a sterling value running into eight figures. Against this could be set the value of the contribution that Mr Miller brought into this short marriage, in the form of the Jupiter funds which he took to New Star and real prospects under the gentleman's agreement of acquiring, as he did, valuable shares in New Star (the fifth point above).

    181.  Within three months of the Court of Appeal's judgment, New Star was floated on the Alternative Investment Market in a transaction which Mrs Miller maintains would on any view enable a value to be attached to Mr Miller's shareholdings (by then converted from 200,000 into 20 million shares, by a one for 100 share substitution). Within three months of the hearing before the House, your Lordships are told, Mr Miller (under commercial pressure by reason of alleged investment under-performance) has had to agree to revise his share arrangements so that in respect of either 6.05 million or 6.55 million shares (depending on further investment performance) he will now not receive more than his money back (i.e. 1p per share). But, at the same time, the stringency of the "share leaver" arrangements to which he was subject has been somewhat relaxed; and the value of each share has, we are told, continued to climb. For my part, I do not think that these developments can or should affect the outcome of this appeal. They do not bear on what I have called the matrimonial acquest. They do not do anything to alter the conclusion that the amount now awarded to Mrs Miller will, however substantial in itself, have no major impact on Mr Miller's very substantial wealth or life.


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