Miller v Miller [2005]

Financial provision – Divorce – Short childless marriage – Principles to apply – Evidence as to causes of breakdown of marriage – ‘Legitimate expectation’ of wife as to standard of living post marriage

MILLER v MILLER [2005]

EWCA Civ 984

Court of Appeal Thorpe, Wall LJJ and Black J

HL Lewis Marks QC and Alexander Thorpe for the petitioner

Nicholas Mostyn QC and Rebecca Bailey-Harris for the respondent

29 July 2005

Financial provision – Divorce – Short childless marriage – Principles to apply – Evidence as to causes of breakdown of marriage – ‘Legitimate expectation’ of wife as to standard of living post marriage

The husband, now 41, and wife, now 36, had been married for 2¾ years. There were no children of the marriage. The couple had conducted a relationship for 4 years before marrying, but had not cohabited at any stage before the marriage. At the time of the marriage, the husband was already an exceptionally successful fund manager, earning in the region of £1m a year; the wife had a salary of £85,000 a year. The husband purchased a home for £1.8m in preparation for the marriage, and shortly before the marriage received £20m in respect of an earlier business deal. Not long after the marriage, the husband moved firms, taking a huge reduction in basic salary, but acquiring a significant number of shares in the new firm with potential for substantial gains. At about the same time the wife gave up her job, and concentrated on furnishing the matrimonial home and a property in the south of France which had been purchased in their joint names. In the third year of the marriage, the husband left the wife for another woman, whom he subsequently married. At the hearing the judge permitted the wife to adduce evidence as to the cause of the breakdown of the marriage, notwithstanding that she had made a declaration at the conclusion of the financial dispute resolution (FDR) hearing that she would not be relying upon the husband’s conduct. The judge awarded the wife £5m, accepting her evidence as to the circumstances of the marriage and its breakdown. The judge took the view that the husband could not rely on the short duration of the marriage because he was to blame for the breakdown, and that the wife had a legitimate expectation that she would live at a higher standard of affluence on marriage.

Held – dismissing the appeal –

(1) The judge had been right to permit the wife to adduce evidence as to the cause of the breakdown, notwithstanding her declaration at the FDR that she would not be relying upon conduct in the prosecution of her claim for ancillary relief. A retreat from a clear declaration was generally to be deprecated and might in many cases result in a heavy costs penalty, but such a declaration could not possibly override or circumscribe the trial judge’s obligation to investigate whatever he conceived was relevant and necessary to enable him to discharge his statutory duty (see paras [24], [25]).

(2) The language of s 25(2)(g) of the Matrimonial Causes Act 1973 was intended to discourage allegations of conduct unless the conduct was such that it would be inequitable to disregard. However, it was not the case that allegations of conduct in ancillary relief could only be advanced under s 25(2)(g). It was pointless and risky in terms of costs to assert misconduct that did not measure high on the scale of gravity, but conduct that would not merit advancing under s 25(2)(g) was not, therefore, irrelevant or inadmissible. Often the court’s assessment of the worth of the comparable contributions would require consideration of motive, attitudes, commitments and responsibilities (see para [29]).

(3) The judge was entitled to conclude that the husband was responsible for the breakdown of the marriage and that finding entitled him 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, or that the parties had separated consensually (see para [31]).

Statutory provisions considered:

Divorce Reform Act 1969

Matrimonial Proceedings and Property Act 1970, s 5

Matrimonial Causes Act 1973, ss 23, 25

Access to Justice Act 1998, s 55

Cases referred to in judgment Attar v Attar (No 2) [1985] FLR 653, FD

Cowan v Cowan [2001] EWCA Civ 679, [2002] Fam 97, [2001] 3 WLR 684, [2001] 2 FLR 192, CA

Foster v Foster [2003] EWCA Civ 565, [2003] 2 FLR 299, CA

G v G (Financial Provision: Separation Agreement) [2000] 2 FLR 18, FD

G v G (Financial Provision: Separation Agreement) [2004] 1 FLR 1011, CA

Gojkovic v Gojkovic and Another [1992] Fam 40, [1991] 3 WLR 621, [1991] 2 FLR 233, [1992] 1 All ER 267, CA

H v H (Financial Provision: Short Marriage) (1981) 2 FLR 392, FD

Hedges v Hedges [1991] 1 FLR 196, CA

Lambert v Lambert [2002] EWCA Civ 1685, [2003] Fam 103, [2003] 2 WLR 631, [2003] 1 FLR 139, [2003] 4 All ER 342, CA

Martin (BH) v Martin (D) [1978] Fam 12, [1977] 3 WLR 101, (1977) FLR Rep 444, [1977] 3 All ER 762, CA

McFarlane v McFarlane; Parlour v Parlour [2004] EWCA (Civ) 872, [2005] Fam 171, [2004] 3 WLR 1481, [2004] 2 FLR 893, [2004] 2 All ER 921, CA

Piglowska v Piglowski [1999] 1 WLR 1360, [1999] 2 FLR 763, [1999] 3 All ER 632, HL

Robertson v Robertson (1983) 4 FLR 387, FD S v S [1977] Fam 127, [1976] 3 WLR 775, [1977] 1 All ER 56, CA

Wachtel v Wachtel [1973] Fam 72, [1973] 2 WLR 366, [1973] 1 All ER 829, CA

Wells v Wells [2001] Fam Law 656, FD

White v White [2001] 1 AC 596, [2000] 3 WLR 1571, [2000] 2 FLR 981, [2001] 1 All ER 1,