Case No. BV20D07073

/McFarlane [2006] UKHL 24; [2006] 2 AC 618, the House of Lords identified three principles that should guide the court in trying to achieve fairness, namely:-(a)The sharing of matrimonial property generated by the parties during their marriage;(b)Compensation for relationship generated disadvantage; and(c)Needs balanced against ability to pay.49.There is no question of compensation for relationship generated disadvantage in this case. There may, however, be an issue as to needs if I decide that the matrimonial property is either very limited or that sharing it would be insufficient to provide for either party’s needs, taking into account the resources available, the standard of living enjoyed during the marriage and any other relevant matter.50.It follows that my main task, in this case, is to assess the matrimonial property generated by the parties during the marriage, to include any settled period of cohabitation that moved seamlessly into marriage. Unlike many cases, this isundoubtedly complicated by the transfer of assets to the Wife in early 2017. Once I have decided the extent of the matrimonial property, I must then decide in what proportions that matrimonial property should be shared. If the assets have been generated during the marriage, the likelihood now is that they will be shared equally, particularly as it is rightly not asserted in this case that there has been a special contribution. The question, however, is how to deal with assets that were not matrimonial at the outset but have become matrimonialised as a result of the actions of the parties during the marriage. It follows that, unusually, this will require a three stage process. First, I must investigate what proportion of the assets were acquired by the Husband before the marriage. Once I have done that, I must consider the extent to which they became matrimonialised. Finally, if they did become matrimonialised, I must decide in what proportions they should now be shared taking into account their provenance; the parties’ approach to them; and the other relevant factors in this regard to be found in section 25.51.I will therefore briefly consider the principles on which the courts have assessed quantification of the matrimonial property. The argument, of course, is that assets acquired before the marriage should be excluded from matrimonial property as being an “unmatched” contribution and, therefore, not be subject to the sharing principle. There are two main different approaches. The first can be described as the “broad-brush” approach and was articulated by the Court of Appeal in the case of Hart v Hart [2017] EWCA Civ 1306; [2018] 2 WLR 509, in which Moylan LJ said at Paragraph [96]:-“If the court has not been able to make a specific factual demarcation but has come to the conclusion that the parties’ wealth includes an element of non-matrimonial property, the court will also have to fit this determination into the section 25 discretionary exercise. The court will have to decide, adopting Wilson LJ’s formulation of the broad approach in Jones, what award of such lesser percentage than 50% makes fair allowance for the parties’ wealth in part comprising or reflecting the product of non-marital endeavour. In arriving at this determination, the court does not have to apply any particular mathematical or other specific methodology. The court has a discretion as to how to arrive at a fair division and can simply apply a broad assessment of the division which would affect “overall fairness”. This accords with what Lord Nicholls said in Miller and, in my view, with the decision in Jones.”52.The second approach is to undertake a detailed calculation of the non- matrimonial property and then deduct the resulting figure from the overall assets to arrive at the matrimonial assets. Inevitably, this itself can be done in a number of different ways. The two most obvious are to be found in the cases of