A recent, bitterly contested 'big money' divorce case shows how reluctant the courts are to upset financial settlements on the basis of contingencies and reinforces the point that bad behaviour is not a basis for changing the division of the assets.
It involved, as do so many high profile cases, a man who was successful in the City and his wife. The couple had lived together for five years before they married in 2003, but the marriage broke down in 2005. The couple had one child.
Both parties tried to keep secrets from the other. The husband failed to disclose that he would be the beneficiary of a 'lucrative' pension plan in 2023 and the wife failed to disclose that she had become pregnant by another man, with whom she had a relationship that could be described as cohabiting.
In late 2006, the husband was ordered to pay his wife £7,500 per month in maintenance and the family assets were apportioned. When she discovered that her husband was to benefit from the pension, the wife sought to obtain an increase in the maintenance payable for her and their child. The husband sought to resist her sharing in any wealth which he had created after their separation.
The outcome of the case was that the judge ordered some changes to the maintenance payments and the division of assets. However, the important points relate to the changes he could have made and did not.
With regard to the pension, he concluded that since it could not be touched before 2023, it would not in his view be fair to require the husband to share, in whatever proportion, the value of this fund with his ex-wife.
On the matter of the wife being deprived of a share in the post-separation earnings, the judge concluded that, 'I do not accept that such contributions by a wife to the family after the end of the marital partnership can generally be said to warrant a conclusion that a proportion of the husband’s future income continues to be attributable to the wife’s domestic contribution and thus a fruit of the marital partnership'. He therefore denied the claim that she should share in the increase in assets between their separation and divorce. Interestingly, he remitted for negotiation whether the revised maintenance payments should be set in Pounds Sterling or (as the wife now lives in Ireland) in Euros.
Neither was the judge swayed by the wife’s commencement of a new relationship nor was the possibility of financial support from her family, who are wealthy, a factor which affected his decision.
In reaching this decision, the judge commented, 'Sadly this has been an application, both during its gestation in documentation and its investigation in oral evidence, where both … have undoubtedly (and sometimes deliberately) reprocessed elements of the history for perceived tactical advantage'.