Case No. ZZ20D65691

101.My next step is to undertake a reverse Duxbury calculation on £21,720,767 to see how much income it will generate for the wife to put towards the cost of running her household.102.For the purposes of this reverse calculation, I apply four assumptions:a.full amortisation of the fund during its 40-year existence to 2062;b.no state pension; c.in 2039, when the occupation of the family home comes to an end on the younger child attaining 21 years of age, an injection of £4 million (in today’s money) into the fund, as the wife will not then be needing as much as £13.15 million (again, in today’s money) in housing funds; andd.in 2042, a 40% reduction in income at age 67 on retirement (as suggested by Mr Cusworth KC). 103.In applying these assumptions, I follow my own decision in CB v KB [2019] EWFC 78. In that case the wife was 45. I said this:“53.Notwithstanding the relatively young age of the wife I consider it reasonable to work on the whole-life provision implicit in the Duxbury formula. This was a long relationship and there have been six children born. It is reasonable in such circumstances for the wife to be provided for until the end of her life. It is pre-eminently reasonable that the wife should be required to amortise - that is to say, to spend - her Duxbury fund. Indeed, I struggle to conceive of any case where in the assessment of a claimant’s needs it could be tenably argued that it was reasonable for her not to have to spend her own money in meeting them. After all, that is what money is for. The endgame of the contrary argument is that it would be reasonable for a respondent to have to fund a claimant’s testamentary ambitions. I cannot conceive of any case where that could be said to be reasonable.54.The wife’s home is very large. She accepts that it would be reasonable for her to downsize in her autumn years. In my judgment it would be reasonable for her to release equity of £1.5 million when she reaches the age of 60. Moreover, at that point it is reasonable for her spending to reduce by a third. After all, virtually everybody moving into retirement and onto a pension has to reduce their spending.”104.As to the amortisation issue, I remain puzzled by the proposition that says it is a mere fact-specific question whether the provision by one spouse to meet the needs of the other spouse could include meeting a “need” to leave money to testamentary beneficiaries. In my opinion, it is a clear matter of principle. Accordingly, where a wife has received a substantial sum under a sharing or compensation claim, or under a PNA, it is hard to conceive that it would ever be reasonable to expect a husband to top up that sum to enable the wife to keep her capital intact to leave to testamentary beneficiaries.105.I suggest that this is entirely consistent with Lord Nicholls’ well-known passage in White v White [2001] 1 AC 596 at 609 under the heading “The next generation”, where he said:“I agree that a parent's wish to be in a position to leave money to his or her children would not normally fall within paragraph (b) as a financial need, either of the husband or of the wife. But this does not mean that this natural parental wish is wholly irrelevant to the section 25 exercise in a case where resources exceed the parties' financial needs. In principle, a wife's wish to have money so that she can pass some on to her children at her discretion is every bit as weighty as a similar wish by a husband. A Duxbury type fund is intended to provide money for living expenses but not more. … In my view, in a case where resources exceed needs, the correct approach is as follows. The judge has regard to all the facts of the case and to the overall requirements of fairness. When doing so, the judge is entitled to have in mind the wish of a claimant wife that her award should not be confined to living accommodation and a vanishing fund of capital earmarked for living expenses which would leave nothing for her to pass on. The judge will give to that factor whatever weight, be it much or little or none at all, he considers appropriate in the circumstances of the particular case.”106.In that momentous case the long-standing criterion of resolving cases solely by reference to the reasonable requirements of the claimant was overturned, but no firm alternative technique was enunciated other than the criterion of fairness (at 589) and the application of the yardstick of equality as a check against the possibility of discrimination (at 605). 107.What Lord Nicholls was saying is that while a claimant’s wish to leave money to her testamentary beneficiaries is not a reasonable need for the purposes of s. 25(2)(b) of the Matrimonial Causes Act 1973, the court may yet grant her an enhanced award enabling her to do so on application of the then protean criterion of fairness. 108.It was not until the decision of the House of Lords in Miller v Miller, McFarlane v McFarlane [2006] 2 AC 618 that the concept of “sharing” as an element or strand of the requirement of fairness emerged. The three elements - sharing, needs and compensation - constituted compendiously the fairness requirement. Therefore, the claimant’s testamentary wish, which Lord Nicholls in White had left to a protean general “fairness” discretion on the part of the judge, now has to be accommodated within the sharing principle. Logically, it is only there that it can find expression. If a claimant has earned a right to share equally (or unequally) in the marital acquest, then what she receives is her money and what she does with it is her business alone. It only becomes the other party’s business if the claimant argues that her needs exceed her sharing entitlement and that she therefore requires her sharing entitlement to be topped up to meet those needs. The needs in that scenario cannot, as Lord Nicholls explained in White, encompass a testamentary wish.109.There is another reason in this case why full amortisation is clearly appropriate. Article 5.1 of the PNA provides:“Based on each party’s assets, income, earning potential and the distribution of property each will receive pursuant to the terms of this Agreement, each party does hereby acknowledge that he or she has or will have ample financial resources to be self- supporting throughout his or her life and, therefore, each party does hereby waive, relinquish and release his or her rights to permanent maintenance or temporary maintenance, permanent alimony or temporary alimony, lump sum alimony, “quantum meruit alimony” or other permanent or temporary support of any kind from the other in the event the parties separate, divorce, annul or otherwise terminate their marriage to each other, as prescribed or authorized by the common law or any statute, including, without limitation, New York Family Court Act Article 4 and New York Domestic Relations Law Section 236, Part B(6), any amendment or successor thereto, or the similar law of any jurisdiction within or without the United States.”Now, it is perfectly true that the preamble to the PNA states that while the agreement is in full satisfaction of all rights arising on divorce, it does not deal with issues relating to child support (see [22(a)] above). The wife’s claim before me is for child support, albeit for that type of child support permitted by the law (as I will explain) whereby the reasonable costs of her household, including herself, will be met by the husband to the extent that they are not capable of being met by her. This award will literally amount to “support of any kind … in the event the parties divorce” within the terms of Article 5.1, albeit, as a child support award, it is excepted from its operation. But I do not think that Article 5.1 can be ignored. What it implies is that if a claimant is seeking what I will call a Household Expenditure Child Support Award (“a HECSA”) then it is incumbent on the claimant to spend her own money in funding her household before she looks to the other party to meet, or contribute to, that cost. And spending her own money means being treated in the calculation of the other party’s liability, as amortising fully her Duxbury fund.110.In any event, the wife will, at the appointed time for her to expire, have unspent housing capital of £9.15 million in today’s money, which will on any view provide her children, even after the depredation of inheritance tax, with a very substantial inheritance. Further, I do not overlook the fact that these children will probably receive inheritances of vast size upon the demise of their father.111.A reverse Duxbury calculation on a capital sum of £21,720,767 for a woman aged 47 applying the assumptions set out above, provides a net of tax income of