http://www.bailii.org/ew/cases/EWHC/Fam/2011/2637.html"Therefore, the law is now reasonably clear.
In the application of the sharing principle
(as opposed to the needs principle) matrimonial property will normally be
divided equally (see para 14(iii) of my judgment in N v F). By contrast, it
will be a rare case where the sharing participle will lead to any
distribution to the claimant of non-matrimonial property. Of course an
award from non-matrimonial property to meet needs is a common place, but as
Wilson LJ has pointed out we await the first decision where the sharing
principle has led to an award from non-matrimonial property in excess of
needs.
While matrimonial property will normally be divided
equally, this is not an invariable rule. The reason for this is that
sometimes the matrimonial property in question will not be the product of
the endeavours of the parties within the social-economic partnership that
is marriage (as Guest J described it in the Australian case of Farmer and
Bramley [2000] FamCA 1615 at para 188). Sometimes one party brings assets
in which become "part of the economic life of [the] marriage…utilised,
converted, sustained and enjoyed during the contribution period" (ibid at
para 190). This is the concept of mingling referred to by me in N v F at
para 9 (where I cited the remarks of Lord Nicholls in Miller & McFarlane at
paras 24 – 25 and of Baroness Hale at para 148), and by Wilson LJ in K v L
at para 18(b). But even if there has been much mingling the original
non-matrimonial source of the money often demands reflection in the award.
Thus in S v S [2007] 1 FLR 1496 Burton J divided the matrimonial property
60/40 to reflect this factor.
In Miller & McFarlane Lord
Nicholls specified that the matrimonial home should always be designated
matrimonial property, whatever its source. He stated at para 22 that "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." This is reflected in the remarks of Wilson LJ in K v L at para
18(c). But 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. In Vaughan v
Vaughan [2008] 1 FLR 1108 Wilson LJ stated at para 49:
Such would be
the award notwithstanding that the home had been owned by the husband, free
of mortgage, since well before the marriage and that, putting to one side
his misconduct in dissipating assets following the breakdown of the
marriage (the effect of which is intended to be rectified by the
calculation), the contributions of each party to the welfare of the family
during the marriage were in effect agreed to have been equal in value
albeit not in kind. Although, in the words of Baroness Hale in Miller v.
Miller, McFarlane v. McFarlane [2006] UKHL 24, [2006] 2 AC 618 at 663E,
"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."
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