Family Law Hub

Cowan v Cowan [2001] EWCA Civ 679

  • B1/2000/2854 FAFMI

    Neutral Citation Number: [2001] EWCA Civ 679

    IN THE SUPREME COURT OF JUDICATURE

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    ON APPEAL FROM THE HIGH COURT OF JUSTICE - FAMILY DIVISION

    (MR JUSTICE SINGER)

    Royal Courts of Justice

    Strand, London WC2A 2LL

    Monday, 14 May 2001

    B e f o r e :

    LORD JUSTICE THORPE

    LORD JUSTICE ROBERT WALKER

    and

    LORD JUSTICE MANCE

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    JACQUELINE ANN COWAN

    Appellant

    v

    MICHAEL ANTHONY COWAN

    Respondent

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    (Transcript of the Handed Down Judgment of

    Smith Bernal Reporting Limited, 190 Fleet Street

    London EC4A 2AG

    Tel No: 020 7421 4040, Fax No: 020 7831 8838

    Official Shorthand Writers to the Court)

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    MISS FLORENCE BARON QC and SIMON GILL (instructed by Lucas McMullan Jacobs of London E10 7AA) appeared on behalf of the appellant.

    MARTIN POINTER QC and VALENTINE LE GRICE (instructed by Foreman Laws of Hitchin SG5 1JW) appeared on behalf of the respondent.

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    Judgment

    LORD JUSTICE THORPE:

    The Facts

    1. Mr and Mrs Cowan, the parties to this appeal, are respectively 63 and 61 years of age. For convenience I will hereafter call them the husband and the wife. They met when they were still in their teens. At the date of their marriage on 2 February 1959 they were aged 21 and 19 respectively. Both worked for English Electric, the husband as a tool draughtsman and the wife as a tracer. Two months after the marriage they moved into a council house in Stevenage. On 7 July 1959 Andrew, their first son, was born. In 1961 the husband set up his own business as a draughtsman in partnership with a friend. On 4 February 1963 their second son, Timothy, was born. In 1963 they had prospered to the extent of purchasing a house in Stevenage for £3,000. In about 1965 the couple developed a second source of income selling polythene for damp courses into the building trade. The latter was very much a family business and at the trial there was much dispute as to their respective roles. In the mid 1960s the husband launched a company, Hanmere Polythene Limited and at about the same time the husband and his younger brother Jeffrey joined forces. There were three brothers in the Cowan family, Jeffrey being two years younger than the husband and Graham being some seven years younger than the husband. Shares in Hanmere were originally issued as to 51% to the husband and as to 49% to Jeffrey's wife, as his nominee. In the late 1960s Hanmere began the manufacture of polythene bags. At about this period 5% of Jeffrey's share in Hanmere was transferred to the wife and at the same time his remaining shareholding went into his own name. Thereafter the story is one of almost unchecked progress to success in business and with it affluence. This was reflected both in moves to finer homes and to the creation of complex tax avoidance schemes. It is unnecessary for the purposes of this judgment to record the detail of Jersey trusts, Swiss trusts, Panamanian companies and Liechtenstein anstalts. Equally it is unnecessary to detail the moves save for the acquisition in 1976 of a country house, Hadham Grange. The purchase price was £75,000. Its agreed value in 2000 was £1,115,000. No doubt this increase is partly explained by substantial expenditure on improvements over the 25 years that it has been the Cowan's family home. At some stage in the mid or early 1970s the wife ceased to play any part in the business. No doubt she was fully occupied with the home and the needs of the children.

    2. In February 1997 the husband launched a new venture HD Plastics Limited which commenced trading in 1979. At about the same time he also launched Halcyon Plastics Limited. HD stands for high density which leads me to a simple explanation of the husband's accumulation of a fortune offered by Mr Pointer QC during the course of his submissions. The husband had perceived that buying polythene from a manufacturing source and selling it on at a margin was a trade of limited potential. It was his genius to perceive the potential of bin liners which would revolutionise the collection and disposal of household waste. High density thin plastic he perceived to be particularly fit for the purpose. He also conceived the idea of packing the liners in a roll for stocking supermarket shelves. His final successful innovation was the introduction of drawstrings for closing the bags when filled. The companies specialised in supplying both local authorities and supermarkets. The contribution of Jeffrey to what is a remarkable success story was comparatively slight. It seems that in his mid thirties Jeffrey developed a taste for golf. In Hanmere he soon earned the label of the golfing director, playing little or any active part in the business after 1979. He made no active contribution to HD Plastics or Halcyon, although start-up capital for these companies was said to derive from Hanmere Limited. However Halcyon was essentially a joint venture between the husband and Graham and it was not in dispute that the husband held only 51% of Halcyon, although there was contention as to whether the remaining 49% belonged to Graham or whether the minority shareholding was split between him and Jeffrey in proportions 30 to 19.

    3. The success in business, magnified by the avoidance and evasion of tax, enabled the husband and the wife to develop a very high standard of living. In the mid 1980s the husband and the wife acquired a winter home in the Virgin Islands, Flag Hill, at a cost, after improvements, of about $2M. Jeffrey and his family were provided with a home on a golfing development in the Canary Islands at a cost of about £240,000. All this was financed through the offshore companies. At about this time the husband formed Inca Investment Properties Limited to own factory premises in Biggleswade into which the operations of HD Plastics were moved.

    4. All this seemingly effortless success ran into rough waters in the 1990s. In 1992 the husband launched a new product, plastic bags with a zip closure, through a company that he had incorporated years previously named Hanlex Limited. This venture sustained substantial losses over the ensuing years until the relatively recent closure of the business. These losses were borne, at least substantially, by Hanmere and led to some disagreement between the husband and Jeffrey, whose income continues to be derived from Hanmere. Of greater significance is the filing of a divorce petition by the wife in 1992, although it was not ultimately served until some six years later. Difficulties in the marriage were contained until March 1994 when the parties separated. The husband moved out of Hadham Grange, renting a flat in London. The Caribbean winter home was put on the market. It is probably significant that shortly before the separation the Inland Revenue launched an investigation into the activities of the husband, his companies and the offshore superstructure. Following the separation the husband paid the wife a monthly allowance of £6,600 increased to £8,900 in September 1995 when the wife acquired a three bedroom flat in Florida for her use as a winter home. The husband also provided £16,000 towards the venture. It was in fact a purchase on mortgage although presented to the husband as a tenancy.

    5. In order to defend himself against the Inland Revenue investigations the husband instructed Foreman Laws who in turn instructed Coopers and Lybrand who jointly reported to the Inland Revenue in February 1996. Their strategy was to present the husband as the single target for the Inland Revenue's arrows with the aim of achieving a sub-standard settlement. A compromise was reached in December 1996. In broad terms the husband agreed to dismantle the entire offshore structure, to pay the Revenue the sum of £2,561,000 and to distribute the shares in HD, Halcyon, Hanlex and Inca (formerly invested in the Jersey trust) between himself and his two brothers. In fact the husband's solicitor, Mr Foreman, issued the shares in these four companies in one parcel of 80% and another of 20%. This was to facilitate a division between the brothers. It was subsequently said that it was by oversight that the minority shareholding in Halcyon was put at 20% only. Whilst Jeffrey's entitlement to a 20% share in HD and Inca was to be heavily disputed, it was never an issue that the husband's shareholding in Halcyon did not exceed 51%.

    6. Meanwhile HD Plastics was running into difficulties. The husband contemplated the purchase of a complementary manufacturer, Baco Consumer Products Limited (a subsidiary of British Aluminium Limited). In the event it was Baco that acquired HD Plastics. The husband negotiated a deal the subject of a comprehensive shareholders agreement dated 10 October 1997. The basic terms were that the consolidated companies should be marketed as a whole within five years, if possible. In consideration for his shareholding in HD Plastics the husband received loan notes to the value of £4,429,000 repayable at Baco's option or on sale or in equal instalments between 2005 and 2009. In the interim the loan notes bore interest at 5%. In addition the husband obtained 19% of the equity in Baco. Shortly after completing this deal the husband bought a flat in Hampstead for about £0.5M financed by a very substantial building society mortgage.

    7. The payment of the agreed sum to the Inland Revenue plainly compounded the husband's problems. In February 1997 he raised £635,000: £200,000 from the Jersey trust and the balance drawn from HD Plastics or Inca. In March 1997 £319,000 was paid: £120,000 from Hanlex and the balance from the Swiss trust. In December 1997 the husband drew down his capital entitlement under his pension scheme, £481,000, and the capital entitlement under Jeffrey's pension scheme, £200,000. At the end of 1998 the final instalment of £561,000 was due. The Inland Revenue accepted £50,000 from the husband and a charge on the proceeds of sale of Flag Hill, the Virgin Island home. The husband had agreed a sale at $1,100,000 in September 1998 but only upon the basis that the purchase price was payable over five years.

    The Litigation

    8. Whether or not in response to these financial pressures in April 1998 the husband reduced the wife's monthly allowance to £5,000, which led to the service of the petition and an application for ancillary relief. The application proceeded through inevitably elaborate interlocutory development with Mr Lawrence being brought in for the husband and Mr Lobbenberg for the wife. The financial dispute resolution appointment before Bennett J did not lead to compromise and the trial commenced before Singer J on 13 March. The trial seems to have been hard fought, if not acrimoniously. The wife's advisors suspected that the husband had not been frank in relation to his prospects of deriving millions in ready cash from his investment in Baco. On the opening day Miss Baron QC, for the wife, obtained a production order against Baco which revealed that active negotiations for the sale of the company had been proceeding for some time undisclosed by the husband. His response was that he had no participation in the negotiations and was merely a powerless minority shareholder. At the trial Miss Baron submitted that her client was entitled to an equal share of the assets all of which had been acquired during the course of a 35 year marriage throughout which the wife had been an unstinting contributor. The wife stressed that the marriage had been brought to an end by the husband to her great distress. That submission could not possibly have succeeded in that court at that date since clearly the judge was bound by a long line of cases in this court limiting the applicant's award to the capital sum necessary to meet all reasonable requirements. Of course Miss Baron was no doubt mindful of the paper written by Peter Singer QC that challenged the validity of the reasonable requirement ceiling. Equally Miss Baron would have been well aware that the case of White v White was fixed for hearing in the House of Lords some three months later. Undoubtedly at trial Mr Pointer had the easier task since he could rely upon the decision of this court in Dart v Dart where Mr Munby QC had unsuccessfully mounted a full scale assault on the reasonable requirements yardstick.

    9. When Singer J was ready to hand down his reserved judgment on 28 July there was a further flurry since the possible sale of Baco Limited investigated at the trial in March had progressed to something approaching completion. Issues were finally argued after an adjournment to 31 July to enable the wife's advisors to digest the latest report. The order reflecting his judgment dated 31 July was sealed on 11 August. Under its terms the wife received a lump sum of £1,775,000 to supplement and to finance her ownership of Hadham Grange and the Florida flat. Together with her pension fund valued at £245,000, and approximately £50,000 of other net assets, the wife's wealth was elevated to approximately £3.2M.

    10. The main issues that had been fought out at the trial were, perhaps, whether the wife had made an outstanding contribution to the success of the companies, in addition to her contribution as wife and mother, and whether Jeffrey had a legal entitlement to a 20% share in the other companies in addition to his 44% share in Hanmere.

    11. On the first issue the judge's findings were as follows:

    "The first, and major, issue upon which I must reach conclusions is the nature, duration and effect of the wife's contributions to the family's wealth. For she maintains and lays heavy emphasis upon her claim that she played a vital role in the inception of the business which was to provide the family's fortune. She maintains that her input to the development of the business was so significant that it is the major factor which should be reflected in the outcome of her application, and which should enhance her award over and above that full entitlement which it is conceded she should enjoy.

    It is common ground that the business started with the wife purchasing polythene sheeting from a wholesaler for re-sale to builders whom she canvassed for purchases. Little if any capital outlay was involved, little if any bookkeeping was required, and this trade developed as a side-line to meet the twin objectives of giving the wife something to absorb her energies besides home and children, plus the opportunity to contribute to what was the parties' modest budget. For this the wife deserves credit, which indeed the husband acknowledges while disputing both the duration and the extent of the wife's active involvement. It is not even clear who had the idea of embarking upon this trade. It is not surprising that recollections now differ, 35 years or so after the event, and I for my part find it quite impossible upon the evidence to reach any firm conclusion whether the wife's activity ran from 1965 or from a year or so later, and whether it endured until and possibly beyond 1973, or ended effectively in about 1968.

    I have no reason to suppose that, whatever the extent of her involvement, the wife was other than conscientious and energetic. But I am quite unable to ascribe to her involvement anything other than a minor role in the overall development of these businesses, which clearly was engineered and directed by the husband. Thus I would not be assisted, even if I could reach firm conclusions, by the outcome of keenly contested issues, such as the onset and initial extent of Jeffrey Cowan's involvement, the period at which the husband's father was working for a builder and had some influence on the developing trade, and the extent to which during this period the husband's time was or was not taken up with his own business as a draughtsman. Nor am I assisted by attempts to link the various stages in this development to the reasonably firmly-fixed milestones which moves of home, office and business premises provide.

    It is, in my view, quite simply unrealistic for the wife to say (as she did in an affidavit sworn in February 1999) that during the early 1970s the husband totally took over 'my executive responsibility'. Of course she may have contributed ideas in the early stages, but the reality was that she telephoned and canvassed orders, picked up and delivered goods, and managed to combine that and no doubt a modest degree of bookkeeping with running the home and caring for the children.

    The wife's case remains however that without the initial groundwork which she did in this period there would have been no polythene business to develop into what today exists. In a causal sense this may to a degree be true. But the initial steps which she took, although by no means insignificant, weigh light in the balance by contrast to the contribution made by the husband's entrepreneurial flair and drive and his technical knowledge and inventiveness.

    Thus I have no difficulty in concluding that the wife is not in the same league as Mrs Gojkovic or Lady Conran."

    12. He returned to this issue towards the end of his judgment when he had regard to the matters enumerated in section 25(2) of the matrimonial Causes Act 1973. He said:

    "A major feature of this case, and one to which I shall give significant weight, is the length of the marriage. Another factor which weighs heavily (although not with the weight for which the wife has contended) is the balance of contributions which each of the spouses has made over the effective duration of their marriage, thirty-five years until separation six years ago.

    The husband's contribution is manifest. It can be measured crudely in the assessment of resources which I have undertaken, and which puts a monetary valuation upon his drive, vision and inventiveness. It is clearly the case that his businesses have for many years absorbed his energies and his time. He is clearly an exceptionally hard worker.

    It is in that context that the wife's contributions must be assessed. Of course I take into account the extent (although I have found it to be modest in the scope of the whole) to which she contributed to the germination of the seed of these businesses before they really flourished and spread. But that is just one ingredient in the contribution to the welfare of the family which she made over all those years. For the necessary consequence of the time and energy which the husband put towards his work is the extra burden of responsibility which inevitably the wife would have to meet in bringing up the children and organising the life of the family."

    13. On the second issue the judge's findings are to be found in the following paragraphs of the judgment:

    "His evidence therefore totally failed to persuade me that the position is as he represented it, either in relation to any firm understanding or agreement between the brothers prior to the dismemberment of the Jersey trust, nor as to any such agreement in any way binding upon the husband at the time of the Inland Revenue negotiations or subsequently.

    In my judgement the husband has behaved, not as a man who has made a perfected gift or entered into a contractual engagement, but more like a trustee (or perhaps another appropriate word might be 'protector') of a discretionary trust, of which Jeffrey Cowan (and indeed Graham Cowan) were potential beneficiaries. I do not believe that he has been prepared in relation to any of these companies to commit himself to parting with the actual shares or their value. I believe that the same must go for the Baco shares and for the loan notes. I believe that Mr Foreman was following his instructions (and had no conflict of interest, as he did not act for either Jeffrey Cowan or Graham Cowan) when he 'set up matters in Jersey such that your options in respect of such matters are kept open until the last moment'. That last moment had not arrived by the date of the hearing before me.

    I have no doubt that Mr Foreman is an excellent exponent of the art of the commercial lawyer, and that the husband has good reason to be grateful for what was in effect the coup he achieved in the Inland Revenue investigation. He is clearly fiercely loyal to his client but he made it clear that that by no means meant that he was prepared to go to extraordinary lengths to protect him from what he obviously regarded as extravagant claims by the wife.

    He was asked how Jeffrey Cowan's position could be protected if, for instance, the husband died. His response was that he alone constituted Jeffrey Cowan's protection. It is all too easy to see how it might be necessary to protect the husband's estate from the ruination of complex litigation concerning the beneficial ownership of these shares. Having regard to what for Mr Foreman is plainly normally his obvious and detailed concern for clarity and certainty I am in those circumstances surprised that so clear a position as he presents to me was never ever clearly documented. The reason for that, it seems to me, is very unlikely to be any fault of Mr Foreman. It may however reflect a lack of clarity, precision and finality in the instructions he received from the husband. Just such a position as, indeed, bundle Q in my judgment exemplifies. The way in which Mr Foreman dealt with these matters is however consistent with the conclusion that the shares were still in the husband's gift, rather than already given. And that conclusion is consistent with the wife's understanding (which does not seem to me to differ too much from the reality) that Jeffrey Cowan might get something in the future.

    I therefore without any real doubt, having heard and seen the husband and the witnesses he has relied upon on this topic, conclude that this aspect of the case has been an attempt by the husband deliberately to maintain a presentation for which he must be aware there is no firm foundation whatsoever.

    The husband will be in a position to repay Jeffrey Cowan the £200,000 from his pension which was put towards the Revenue debt. The repayment of that amount, whether as a matter of strict obligation or to repay a soft loan, has been taken into account in Miss Baron's total figure. But I make no allowance for the suggestion that the husband is under an obligation to account to Jeffrey Cowan for 20% of loan note interest and any dividends hitherto paid to the husband alone. That suggested liability owes more to a realisation that it would be consistent with the underlying false presentation than to any real obligation.

    In my judgment the current position in which Jeffrey Cowan finds himself is very much that which has endured since the brothers joined their unequal forces in business. He is a dependant of his more forceful and controlling brother. As such I note in passing that in July 1998 by way of a combination of pension provision and salary drawn from the businesses he and his wife received remuneration at the gross rate of £106,000 per annum, as well as benefits evaluated for tax purposes at £21,000 per annum."

    14. When the judge proceeded to his assessment of wife's reasonable requirements he held that it was not unreasonable for her to retain Hadham Grange and not unreasonable for her to have a second home in Florida. He assessed her income needs at £100,000 per annum net which he capitalised by use of the Duxbury table at £1.58M. To that he added £200,000 to enable the wife to discharge the mortgage on the Florida flat. He made that provision on the basis that the wife should transfer to the husband her 5% shareholding in Hanmere. He concluded his judgment with this paragraph:

    "As a final stage in the process, I have surveyed the overall effect of the order I have postulated. Set against the scale of the parties' overall wealth, upon the basis of the findings I have made it does not seem to me unfair to either party, and certainly not to fall outside (or even unduly close to the edge of) what in my judgment are the bounds of judicial discretion in this exercise. In thus concluding, I retain firmly in mind the consideration that the global figures I have described encompass on the husband's side as large an element as £1.19M referable to the capitalisation of his pension income-stream."

    15. In the event the sale of Baco Limited was completed by the 6 August. Page 36 of Mr Pointer's skeleton argument in the appeal shows the husband's likely receipt, still not fully ascertained and therefore estimated, at approximately £6.8M. The estimate before the judge on 31 July was approximately £6.9M.

    16. On 14 August an application for permission to appeal was lodged by Miss Baron supported by a concise skeleton argument. She invited the Court of Appeal to reject the yardstick of reasonable requirements and criticised the judge in a number of respects, including his declining to find facts in dispute relating to the early years and his pruning of the wife's budget of £130,000 a year net. In my opinion none of the criticisms or submissions raised in that notice of application would have justified the grant of permission at that time. Singer J applied the statute as then judicially construed and arrived at a conclusion within the wide ambit of his discretion.

    17. On 26 October the House of Lords delivered judgment in the case of White v White as appears from the report at [2000] 3 WLR 1571. On 20 November the wife in consequence applied to amend section 9 of her notice of application to increase the lump sum sought from this court from £2.7M to £4.6M. Four days later I granted permission to appeal on paper. There was some delay in filing skeleton arguments, the wife's appearing in mid February and the husband's on 12 March. On the following day the husband filed a respondents notice challenging the judge's ruling that Jeffrey Cowan had no legal right to shares in companies other than Hanmere. CPR Rule 52.5 stipulates that a respondents notice should be served within 14 days after the date the respondent is served with notification that the appeal court has given the appellant permission to appeal. Having heard argument we refused the application for an extension and rejected the respondent's notice.

    18. Miss Baron's essential submission in opening her appeal was that the decision of the House fully vindicated the outcome of equality of division for which she had unsuccessfully contended at the trial. As she put it, if this was not a case that merited equality what case ever would? Miss Baron also relied on Article 5 of Protocol 7 of the European Convention on Human Rights. She submitted that the government has announced its intention to ratify the Convention and that a consequence will be a right to equality of outcome on the division of assets on divorce.

    19. In response Mr Pointer sought to submit that the trial judge had effectively gone beyond reasonable requirements by adopting the approach to contributions expressed by Purchas LJ in Vicary v Vicary [1992] 2 FLR 271 at 289F where he said:

    "I regret that I am unable to accept Mr Connell's submission that there is in some way a distinction between those cases in which the wife makes an actual financial contribution to the assets of the family and those in which her contribution is indirect inasmuch as she supplies the infrastructure and support in the context to which the husband is able to work hard, prosper and accumulate his wealth. I can find no justification in logic or authority in law for making an arbitrary distinction of this kind. Of course the value of the contribution, whether direct or indirect, is one of the factors which are properly to be taken into account when applying section 25 to the exercise of determining what the lump sum should be. In making the comparison, it is for the judge to assess the worth of the wife's contribution: but this is essentially a matter for him."

    20. He therefore submitted that there was therefore nothing introduced by the judgment of the House that had not been within Singer J's appraisal: certainly his award could not be said to be outside the discretionary range.

    21. However perhaps his more realistic submission was that the true ratio of the speech of Lord Nicholls of Birkenhead is that the judge's objective is fairness rather than equality. Even applying equality as a cross check to the provisional award there were in this case sufficient considerations justifying departure from equality to enable us to dismiss the appeal. The considerations identified by Mr Pointer were:

    1. The stellar quality of the husband's contribution.

    2. The judge's finding that the husband held shares in the four companies as trustee or protector for Jeffrey.

    3. The fact that much of the husband's wealth had been generated since the separation in 1994 by his shrewd insistence on shares in Baco Limited as part of the consideration for the sale of HD Plastics.

    4. Neither fairness nor equality would be achieved by awarding the wife a lump sum equalling the difference between the value of what had been transferred to her and one half of the value of the family assets. Careful consideration had to be given to the character of individual assets contributing to the overall total.

    22. Miss Baron, whose time for reply had been somewhat invaded, took the precaution of handing in a written reply. What time remained to her she devoted to undermining the submission that the husband had any moral obligation to share the proceeds of the Baco sale with Jeffrey or to issue him with shares in either Halcyon or Inca. She stressed that whatever contribution Jeffrey had made was historic and more than matched by his generous shareholding in Hanmere. He had additionally been provided with a family home in the Canaries and was in receipt of a continuing six figure annual income.

    23. A difficulty posed for this court at an early stage is that, despite Miss Baron's bold submission at the trial, the case was essentially prepared for a trial to determine the extent of the wife's reasonable requirements. Had the judgment of the House of Lords been available to the parties in October 1999 the later stages of preparation and the trial itself would have concentrated on quite different issues. The most obvious example of that proposition is that the wife would not have striven so hard to prove her contribution as a business woman as opposed to as a wife and mother. In the end her failure in that area led the judge to refuse her 10% of her costs. Mr Pointer of course embraced that point and submitted that if we were to set aside the order below justice demanded a retrial to enable his client to adduce evidence on considerations brought into sharp focus by the ultimate judgment in White. Equally Miss Baron, whilst contending that there was no disadvantage to the husband in the chronology of events, herself submitted that, if we were minded to allow any departure from equality, she too would apply for a retrial before Singer J.

    The Context of White v White

    24. Before moving from that bald summary of skilful submissions on both sides to any determination of outcome I intend first to place the judgment of the House of Lords in the context of mounting pressure for the reform of section 25 of the Matrimonial Causes Act 1973 and then to consider how courts of trial should adjust to the loss of a measure which, although founded on an impermissible judicial construction of the statute, had the merits of familiarity and practicality. For many specialists in this field of litigation it is as though we have experienced the loss of an old but useful tool. For the efficacy of the yardstick of reasonable requirements developed by Ormrod LJ in the mid 1970s was much enhanced by this court's subsequent approval of Mr Tim Lawrence's formula for the calculation of an applicants' reasonable future spending requirements capitalised on the basis of amortisation. The approval was given in November 1985 with the dismissal of the appeal in Duxbury v Duxbury. (That the decision was not immediately recognised as a landmark is illustrated by the fact that it was not reported in the Family Law Reports until 1987 and not until 1992 in the Law Reports for the Family Division.) The test of reasonable requirements, adopted primarily for the determination of the wife's award in big money cases, has been viewed and criticised as a judicial invention to depress the wife's share of the available assets. The criticism seems to me not fully to understand the elasticity of the concept. It was that elasticity that elevated Mrs White's award in the Court of Appeal so significantly above her needs. Of course it can equally be said that the same elasticity in Holman J's assessment of Mr White's reasonable needs worked to depress Mrs White's award to a vulnerable level. It is perhaps this extensification of the concept that has contributed to its demise. Perhaps also it could be criticised for masking what was in effect a judicial attempt to achieve the applicant's or the respondent's deserts. But the statute nowhere speaks of deserts or entitlement as being within the judicial objective. So to lodge deserts within the permissible evaluation of respective needs was unjustifiable. But lodging it solely within the permissible evaluation of respective contributions also seems to stretch the bounds of that concept beyond what parliament intended. The evaluation of deserts is at the core of the court's quest for a fair outcome.

    25. The Matrimonial Causes Act 1973 only consolidated provisions brought into force on 1 January 1971 with the commencement of the Matrimonial Proceedings and Property Act 1970. The original statutory objective having proved quite impossible of practical attainment, it was removed in 1984 without anything being substituted. In consequence in this jurisdiction parliament placed great reliance upon the exercise of judicial discretion, reasonably enough given the high calibre and acquired expertise of the specialist judiciary. Nevertheless experience led to growing professional disquiet at a number of cases in which the costs incurred equalled or exceeded the sums in dispute. At the same time many academic commentators criticised the absence of any predictability, let alone certainty, of outcome. Litigants seeking advice from solicitors often received no better answer than that all would depend on the judge before whom the case might be listed. If that was the state of the law how were sensible litigants to plan for the future or to settle their responsibilities by compromise? Although the Lord Chancellor's Ancillary Relief Advisory Group addressed the problem of disproportionate costs by advocating procedural reforms designed to put the court in control of the litigation from its outset to its end, the more fundamental criticism could only be addressed by statutory reform.

    26. This government's announcement that it was giving active consideration to reform was made on 21 February 1998 when the junior minister in the course of his announcement said:

    "The key must be to deliver a greater sense of certainty for the parties, without preventing the courts from ensuring that the outcome of cases is, as far as possible, fair and just to all concerned."

    27. The Lord Chancellor referred the possibility of reform to his Ancillary Relief Advisory Group. As well as seeking views on the Scottish statutory scheme the Lord Chancellor sought views:

    "As to whether the following proposals would form an appropriate mechanism for dealing with the division of property on divorce:

    * Issues surrounding children are paramount and must be settled before any other issues are considered.

    * The question of spousal maintenance will be considered second.

    * Where there is no pre (or post) nuptial agreement the remaining property will be split 50-50 between the parties unless:

    the court considers the conduct of either or both parties makes such a split unfair;

    such a split would do substantial injustice to one of the parties or to a child of the marriage;

    there is some other reason of a substantial kind why such a split should not be enforced."

    28. The members of the Ancillary Relief Advisory Group are representative of the wide range of disciplines and expertise in this field. Perhaps in consequence the views of the group were wide ranging as appears from the report presented to the Lord Chancellor in July 1998. Amongst the judges of this court there was a consensus in favour of reform. This found its reflection in the white paper 'Supporting Families' published in October 1998. The government's proposals appear in paragraphs 4.47 - 4.49 which I set out below in full:

    "4.47 Following recent advice from judges and members of all the main family law professional bodies, the government is considering measures which would offer divorcing couples greater certainty and clarity as to what they might expect to receive on divorce. This should lead to less litigation and, therefore, offer a reduction in costs both for the couple themselves and the tax payer (who helps to pay for the courts and legal aid).

    4.48 We are considering the benefits of amending the law to add an over-arching objective and a set of guiding principles which could make clear the process a judge now follows in determining the allocation of property on divorce. This could provide greater certainty and clarity but unlike, for example, a rigid formula, could be flexible enough to take account of individual circumstances.

    4.49 The proposed objective is that the court should 'exercise its powers so as to endeavour to do that which is fair and reasonable between the parties and any child of the family'. The proposed set of guiding principles would set out, in order of precedence, the aims or actions which the court must pursue in reaching a decision on the division of property between a divorcing couple. The court would continue to take into account the existing factors set out in the law in seeking to achieve the following aims

    * First, to promote the welfare of any child of the family under the age of eighteen, by meeting the housing needs of any children and the primary carer, and of the secondary carer; both to facilitate contact and to recognise the continuing importance of the secondary carer's role.

    * Second, the court would take into account the existence and content of any written agreement about financial arrangements, reached before or during marriage, which has not been enforced owing to one or more of the safeguards having not been met (see paragraph 4.23 above).

    * Third, having dealt with the needs of children and the housing needs of the couple, and having taken into account a nuptial agreement, the court would then divide any surplus so as to achieve a fair result, recognising that fairness will generally require the value of the assets to be divided equally between the parties.

    * Fourth, the court would try to terminate financial relationships between the parties at the earliest date practicable."

    29. The relevant consultation question directed to these proposals was:

    "Q19: The desirability of having an objective for ancillary relief proceedings and on the content of the proposed objective; and the content of the guiding principles for ancillary relief and any additional factors the court should take into account."

    30. The summary of responses to the White Paper published in June 1999 includes the response to the question 19 at page 27:

    "4.19 Relatively few of the responses addressed this question (57 in all), but the majority of those who did (53) are in favour of the government's proposals. 4 of the responses did not support the proposal. The Law Society expresses a number of detailed reservations on this proposal, including that it could lead to a system which was too rigid and might have an unfair impact on a range of people across the social spectrum. The Law Society also suggest that it is crucial that no reform of the law on maintenance and capital provision should proceed unless it has been preceded by a thorough examination of the operation of the existing law and options for reform by the Law Commission."

    31. Since June 1999 there has been no further statement of the government's intention. A paper evaluating the responses and perhaps giving some indication of the way ahead has been expected but has not yet been published.

    32. A review of the decided cases over the last 30 years demonstrates that the judges have felt it necessary to supplement the statutory provision in order to inject some mechanism or yardstick to provide some stepping stone towards a reasonably fair and ascertainable outcome. The judges have also sought to reflect changing social values or expectations. Of course there are advantages in that the judges are available to gauge and reflect social change whilst pressure on the legislative process makes it unlikely that parliamentary reform will be attempted more than once in a generation, at best. But after more than thirty years of judicial tinkering it is evident to me that there is a pressing need for legislative review since reforms to match social shifts since the late 1960s cannot be achieved by the judges without trespassing beyond their legitimate function. As Lord Nicholls points out during the course of his speech in White a presumption of equality should not be introduced other than by primary legislation.

    33. The case for reform was clearly articulated by Lord Mackay of Clashfern in his lecture for the National Council for Family Proceedings on 4 March 1999 when he said:

    "But the substantive provisions may also need reform. I understand from the white paper Supporting Families that the government is considering measures which would afford divorcing couples greater clarity and certainty as to what they might expect to receive on divorce, than the present system of almost unlimited judicial discretion allows. I personally strongly favour this, although it may produce rather unfair results in a small number of cases. I think this might be avoided by an exception for a small tightly defined series of circumstances. On the whole, I think a reasonably clear and definite set of rules will help to shorten the discussion of ancillary relief once the issues are raised and, perhaps even more important, enable people who are finding financial difficulties in their marriage, to judge whether ending their marriage will produce for them a more difficult situation than the one they are experiencing while married."

    34. Since the publication of the white paper I believe that published research bolsters the case for reform. The report 'How Parents Cope Financially on Marriage Breakdown' by Alison Perry and others published by the Joseph Rowntree Foundation in April 2000 included under the heading 'Suggestions for Reform of the System' this paragraph under the sub-heading 'The Need for Guidelines' which reads:

    "The law on the division of property on divorce is highly discretionary and where a case goes to court, the court has wide powers, for example, to re-allocate property between the spouses or to order that property to be sold. The system has been criticised for its uncertainty and lack of predictability, and it is these traits of the system that prompted many of our interviewees to call for clearer guidelines as to what might happen to property on divorce."

    35. The final paragraph under this heading reads:

    "Despite their repeated calls for guidelines or a 'starting point' from which to kick off negotiations, none of the interviewees suggested what form these guidelines might take, and when asked about equal division of property only 30% (20: 14 men and 6 women) felt that this was a good idea. However there was more support for the introduction, as currently being proposed by the government (Home Office, 1998: para 4.49) of an overall objective into the law along with a set of guiding principles which would mean that any property remaining after the housing needs of the parties and children had been met would generally be divided equally."

    36. The point is well put in the research into ancillary relief outcomes conducted by Gwynn Davies and others and funded by the Lord Chancellor's Department published in 'Child and Family Law Quarterly' No 1 2000. Having cited the phrase from paragraph 4.49 of the white paper, 'fairness will generally require the value of the assets to be divided equally between the parties', the writers continue:

    "This proposal was presumably intended to achieve greater predictability in the determination of these cases. Whether it would promote fairness, or generate a greater sense of satisfaction with the resulting outcomes, is another question. In Scotland, where the 'five principles' are enshrined in legislation, Professor Clive has argued that Scots law on ancillary relief is at more or less the right point on the scale from discretion to predictability. In England and Wales we do not at present have an explicitly identified hierarchy of objectives, but it presumably would not hurt were this to be provided, if only as an aid to public understanding. It is not sufficient for experienced practitioners to understand these things: the parties directly concerned need help in penetrating the mysteries. Why should they not be told the basis upon which the finances are meant to be decided? If we really are concerned to provide the separating population with 'information' - and if we mean information, not indoctrination - we might start with a plain man's account of the basis upon which the court expects the financial cake to be apportioned. It is about the most important piece of information people could have - the rest is mainly preaching."

    37. We also have a recent study by the National Centre for Social Research, Settling Up (NSCR 2000) which shows that the sample of separated couples interviewed supported the concept of equal division, provided its application was sufficiently flexible to permit departure to reflect a range of factors most of which the existing statutory checklist brings into focus.

    The Academic Appraisal

    38. Next I turn to academic commentary on White. First I would draw attention to the erudite picture presented by Dr Stephen Cretney in the UCL series, Current Legal Problems 1999 (OUP December 1999). Dr Cretney's theme in this publication of a lecture delivered in February 1999 was that the judicial gloss developed for the practical application of the statute survived critical scrutiny and rendered primary legislation unnecessary. However two years on in his editorial comment on the judgment in White v White in 2001 FLJ 3, Dr Cretney wrote:

    "Of course, it is true that talk of 'reasonable requirements' can be made to sound absurd and indeed patronising. Yet it was this concept which enabled the courts to give effective recognition to the principle that in the typical case the marriage contract entitles spouses to the same level of amenity as before the breakdown. It certainly does not follow that he or she should be entitled to the division of capital assets which might have been made had parliament in 1970 not specifically rejected the incorporation of community of property into the Matrimonial Causes Act 1973.

    At a more fundamental level, is it far fetched to suggest that there is something rather simplistic about the notion that home-making contributions are to be equated in terms of economic value with commercially motivated money-making activity? And even if right-thinking people now want to make such an equation, is this not essentially a matter of social judgment for decision by parliament rather than the courts?

    The present writer used to believe that, whilst the existing legislation was in some respects imperfect - notably in not being sufficiently comprehensible to the lay person - the cost and uncertainty inevitably associated with the introduction of amending legislation outweighed any likely benefit. That is no longer a view he feels able to hold."

    39. Within the same issue of the Family Law Journal there are other distinguished academic reviews from Professor Bailey-Harris and John Eekelaar. Both appraisals share the theme that the effect of the decision in White v White is more to declare what is unprincipled than to provide principles to be applied in future cases. Professor Bailey-Harris' view is encapsulated in this comment:

    "Those looking for firm or even straightforward judicial guidelines for the exercise of discretion in ancillary relief will be disappointed ...."

    In a fuller review John Eekelaar summarises the effect of White v White as moving 'the basis of the award firmly away from a subjective evaluation of desert to a more objective assessment of entitlement'. However he continues:

    "But despite the greater sense of certainty and consistency, which this movement towards a more proprietal approach should achieve, and which Lord Nicholls regards as important, there remain substantial uncertainties. It is still the case that Lord Nicholls (as, given the statutory words, he must) sees the basis for equality as resting on equal contributions."

    40. In his conclusion he states '.... without some statutory guidance we may be entering a very unsettled period'. Having summarised the proposals in paragraph 4.49 of the white paper he concludes:

    "This may require some elaboration, but it is a reasonable start. White v White can be seen as an important step along the road to a general restructuring of this area of the law."

    41. Those whom I have cited in this section are probably the three leading academic commentators in this field. I share their common view that the declaration of the mechanism of reasonable requirements as an impermissible aid to quantification leaves specialist practitioners and judges facing a period of considerable uncertainty which this court has only a limited power to resolve without contriving some alternative impermissible mechanism. As Dr Cretney said in his 1999 lecture there is the 'constitutional principle that it is for the legislature to decide on broad policy, and that whilst there are many good reasons for leaving matters to a judicial discretion the fact that the legislature cannot make up its mind is not one of them'. Like Dr Cretney I believe that the case for statutory reform has been much strengthened by the decision in White v White as well as by recent research. Like John Eekelaar I see the decision in White v White as a step on the road but very far from journey's end. Only parliament can take us much further. John Eekelaar has often criticised the position which I expressed in the case of Atkinson v Atkinson [1995] 2 FLR 356 when I said:

    "The function of the Family Division is not so much to state principles as to reflect the relevant circumstances of the particular case in the discretionary conclusion."

    That passage reflected my then attachment to the virtue of judicial discretion, the ability to tailor a bespoke solution to the individual case. But the trend in other jurisdictions from discretion towards predictability is general, if not universal, and I am now convinced that there is an attainable middle ground between the two extremes. However it is for parliament and not for the judges to take us there, however uninviting the terrain may appear to the government of the day. Of course there can certainly be no guarantee, and some will say little likelihood, of statutory reform within the foreseeable future. Therefore it will be necessary for this court, which is for many reasons effectively the final court of appeal in this field, for the time being to do what it can within legitimate limits by the practical application of the principles to be found in White v White on a case by case basis.

    The Principles in White v White

    42. In order to consider the practical application of the guidance given by the House in White it is, of course, necessary to look with care at the speech of Lord Nicholls of Birkenhead, with which the other members of the court agreed. Lord Nicholls spoke of the principles to be applied by trial judges saying, at 1573F:

    "It goes without saying that these principles should be identified and spelt out as clearly as possible. This is important, so as to promote consistency in court decisions and in order to assist parties and their advisors and mediators in resolving disputes by agreement as quickly and inexpensively as possible."

    43. I accept Mr Pointer's submission that the ratio of the judgments in White is that the judge's objective is not equality but fairness. In the opening paragraph of Lord Nicholls' speech he said:

    "Everyone would accept that the outcome on these matters, whether by agreement or court order, should be fair. More realistically, the outcome ought to be as fair as possible in all the circumstances. But everyone's life is different. Features which are important when assessing fairness differ in each case. And, sometimes, different minds can reach different conclusions on what fairness requires. Then fairness, like beauty, lies in the eye of the beholder. So what is the best method of seeking to achieve a generally accepted standard of fairness?"

    44. Then at the conclusion of his review of the statutory provisions, at 1578B he said:

    ".... The legislation does not state explicitly what is to be the aim of the courts when exercising these wide powers. Implicitly, the objective must be to achieve a fair outcome. The purpose of these powers is to enable the court to make fair financial arrangements on or after divorce in the absence of agreement between the spouses .... The powers must always be exercised with this objective in view, giving first consideration to the welfare of the children."

    45. The following section, headed 'Equality', is set in the context of fairness. Having first observed that fairness requires the court to take into account all the circumstances of the case and that there will be great variety of circumstances to which the statutory provision applies, he continued, at 1578D:

    "But there is one principle of universal application which can be stated with confidence. In seeking to achieve a fair outcome, there is no place for discrimination between husband and wife and their respective roles."

    46. This is an important statement overruling decisions of this court made in an earlier age that only allowed the wife's claim to rise above the ceiling of reasonable requirements if she had been an active participant in the family business or the husband's business activities. Cases establishing that discriminatory state are exemplified by Trippas v Trippas [1973] Fam 134 and Page v Page [1981] 2 FLR 198.

    47. Having in the following paragraph introduced the yardstick of equality of division as a judicial tool Lord Nicholls states that the use of the tool 'would help the parties and the court to focus on the need to ensure the absence of discrimination'. However Lord Nicholls recognises that whilst 'sometimes' the result will be 'a more or less equal division of the available assets', 'more often' it will not: see 1578H

    48. In the following section headed 'Financial Resources and Financial Needs' Lord Nicholls demonstrates that the former yardstick of reasonable requirements itself offends the principle by posing the question at 1581H:

    ".... Where the assets exceed the financial needs of both parties, why should the surplus belong solely to the husband? On the facts of a particular case there may be a good reason why the wife should be confined to her needs and the husband left with the much larger balance. But the mere absence of financial need cannot, by itself, be a sufficient reason. If it were, discrimination would be creeping in by the back door. In these cases, it should be remembered, the claimant is usually the wife. Hence the importance of the check against the yardstick of equal division."

    49. He concludes this section by commending the courts to return to the language of the statute and to apply the checklist in section 25(2) in deciding what would be a fair outcome.

    50. The theme of fairness returns again in the section giving guidance as to the claims of the next generation. He said at 1583C:

    "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."

    51. Likewise in the final section of general guidance headed 'Inherited Money and Property', Lord Nicholls explains, at 1583F:

    "Property acquired before marriage and inherited property acquired during marriage come from a source wholly external to the marriage. In fairness, where this property still exists, the spouse to whom it was given should be allowed to keep it."

    The Application of the Principles

    52. Thus it will be seen that the consistent theme is the search for the goal of a fair outcome. But as Lord Nicholls emphasised fairness is a subjective standard. An appeal for fairness is an appeal to the heart as well as to the mind. Individual judges are likely to have widely differing responses to the appeal. Insofar as there may be said to be 'a generally accepted standard of fairness' how is the individual judge to ascertain or perceive it? There can be no doubt that the specialist profession is looking to this court to suggest ways and means of applying the principles and guidance in Lord Nicholls speech to present and future cases during their preparation or negotiation. What then can be said with confidence?

    53. The decision in White v White clearly does not introduce a rule of equality. The yardstick of equality is a cross check against discrimination. Fairness is the rule and in its pursuit the reasons for departure from equality will inevitably prove to be too legion and too varied to permit of listing or classification. They will range from the substantial to the faint but that range can be reflected in the percentage of departure. However it would seem to me undesirable for judges to be drawn into too much specificity, ascribing precise percentage points to the various and often counterbalancing reasons which the facts of individual cases render relevant.

    54. Furthermore the decision in White is directed to the abnormal case. In his introductory paragraph at 1573E, Lord Nicholls said:

    "This appeal raises questions about how the court should exercise these powers in so-called 'big money' cases, where the assets available exceed the parties financial needs for housing and income"

    55. When recording the three features of the case he said at 1575H:

    "The available assets substantially exceeded the amounts required by Mr and Mrs White for their financial needs, in terms of a home and income for each of them. The general observations I make later should be read with this in mind."

    56. The present case is far more evidently a big money case. It is common ground that the assets in contention are almost three times the value of the assets of Mrs and Mrs White. Any consideration of the application of the principles in White to the sort of case that is decided daily by district judges up and down the country, and which may therefore be loosely described as average or normal, will no doubt arise and is better deferred to a case prepared and tried since October 2000.

    57. But even within the relatively narrow sphere of the big money case the infinite variety of facts and circumstances thrown up in individual cases makes it dangerous to generalise or to attempt to distil principles. It is clearly safer to apply the decision in White v White to the facts and circumstances of the present appeal. In so doing some guidance will emerge for the negotiation or decision of cases broadly similar on their facts or within which there is some clearly identifiable common ingredient.

    58. In summary therefore these seem to me to be the consequences of the House of Lords recent review of the ancillary relief cases in this court:

    i) Approved is the frequent theme of decisions in this court that the trial judge must apply such criteria as are to be found in section 25.

    ii) Approved also is the almost inevitable judicial conclusion that the unexpressed objective of the exercise is to arrive at a fair solution.

    iii) Disapproved is any discriminatory appraisal of the traditional role of the woman as home-maker and of the man as bread-winner and arbiter of the destination of family assets amongst the next generation. A calculation of what would be the result of equal division is a necessary cross-check against such discrimination.

    iv) Disapproved is any evaluation of outcome solely or even largely by reference to reasonable requirements.

    v) Insofar as the yardstick of reasonable requirements was a judicially created tool to enable negotiators and judges respectively to predict and calculate conclusions it introduced an element of predictability and accordingly curtailed the width of the judicial discretion conferred by parliament. Thus the prohibition on the future use of the tool extends the judicial discretion at the very moment when government policy has seemingly moved in the reverse direction, in harmony with international trends, academic and specialist commentaries and such research as is available. Therein lies the heightened case for legislation. If that case was clear when judges applied the yardstick of reasonable requirements measured in part by Duxbury tables, it must be considerably clearer when the only yardstick is a subjective judicial perception of fairness after a careful appraisal of the section 25 criteria.

    The Present Appeal

    59. How then do the White v White principles apply to the present appeal? There is little indication of direct discrimination in the judgment. Although rejecting the wife's claim to a crucial role in the business success story, Singer J then directed himself by adopting the approach of Purchas LJ in Vicary v Vicary, a decision that is difficult to reconcile with the earlier decisions of Trippas and Page. But in then limiting the wife to the ceiling of reasonable requirements (as he was bound to do) he subjected the wife to some discrimination by the back door, to borrow Lord Nicholls' phrase. This was an example of the whole surplus above the reasonable requirements of both parties going to one alone.

    60. So although there can be no possible criticism of the judge, plainly his order cannot stand and the division of assets must be re-addressed applying the criteria in section 25(2) as an aid to achieving an outcome that is in accordance with current perceptions of fairness. But who is to make this judgment? I would reject the submission that there should be a retrial advanced by both parties, although on different grounds. I would do so for a number of reasons. First the parties well knew that the judgment in White was reserved before Singer J had reached his conclusions. It was open to either party to invite him to reserve his decision until after the House of Lords had ruled. After all that was the course adopted in the contemporaneous appeal of Dharamshi v Dharamshi in which Mr Pointer appeared for the appellant. Had that course been taken the parties would have been spared the costs of this appeal and the suggestion that they should now be exposed to a substantial tranche of costs beyond the costs in this court is very unattractive. Nor in my opinion does justice to either party demand that course. There is no evidence brought into relevance by the decision in White that was not of relevance at the trial. Of course the emphases have shifted but the effect of White has been to render irrelevant or less relevant a number of issues that were prominent at the trial. That conclusion can be checked by reference to the factors submitted by Mr Pointer to direct a departure from equality when the time comes to carry out the cross check, all of which are recorded in paragraph 21 above.

    61. Now on all these issues the judge heard abundant evidence and made full findings. Nor does Miss Baron's submission that she would want to adduce further evidence strike me as more than a tactical response to Mr Pointer's application for retrial. It would surely be essentially responsive to such further evidence as the husband might be permitted to call. After all the wife's case on contributions and needs could hardly have been more fully marshalled at the trial.

    62. Finally I am fortified in rejecting the submission for a retrial by the thought that the evaluation of fairness according to contemporary perceptions is better undertaken by three judges from three different legal backgrounds than by one specialist. That is of course a luxury of resources that could not possibly be afforded in any court of trial.

    63. Clearly our first task is to review the judge's evaluation of the specific considerations itemised in section 25(2) and to re-evaluate where necessary to reflect the guidance given by Lord Nicholls. Then we must stand back and make our overall judgment of fairness on the foundation of the judge's findings which either are not or cannot be criticised at this stage of the appeal and applying the yardstick of equality which in some, but not most, cases will indicate fairness.

    64. In the first exercise the principal areas of re-evaluation must be needs and contribution. We discard the application of the concept of reasonable requirements to establish a ceiling to the wife's award. We discard the discriminatory bias introduced by this court in Trippas v Trippas. We recognise the wife as well as the husband has a legitimate aspiration to devise a substantial estate at the end of her life. None of these judicially created factors may be used to depress the wife's award. Of course it is the first factor that worked against the wife at trial. There is good indication that in preferring the authority of Vicary v Vicary the judge circumvented the second, at least in part. The third factor is not directly referred to but may have operated against the wife by common acceptance. Clearly once these factors are discarded the way is open to a substantial increase in the wife's award.

    65. But there are counter-balancing factors. The wife has retained the former matrimonial home, fully equipped, and has already secured her second home. Her housing arrangements were seen by the judge to be complete and likely to continue unchanged for the foreseeable future, if not for her life. The amount of family money invested to achieve this position amounted to about £1.35M. By contrast the husband's readjustment was perhaps only partially complete. He had moved from a rented flat to a heavily mortgaged flat. The amount of family money invested in meeting his housing needs was only about £150K. But why should his allowance be any less than that of the wife? To bring about parity or, put another way, to allow him to complete a comparable re-adjustment an additional £1.2M would have to be transferred from liquid funds to bricks and mortar. What the husband ultimately chooses is a matter for him but it is not unreasonable for him to have the opportunity to acquire comparable primary and secondary homes.

    66. Second where, as here, the final hearing happens to take place at a time when the trader or manufacturer has recently sold up, the liquidation should not necessarily be regarded as irreversible. There may need to be some recognition of the trader's right to elect whether to stop there or whether to re-invest in a fresh vehicle for his commercial creativity and industry. The need to work and the freedom to work may be as important to an individual as the need to make a home and the freedom to choose it. Of course the simultaneous occurrence of realisation and judgment may spare the judge the need to consider liquidity considerations. But that will not be so in the more general case where the family has a considerable wealth on paper but where the bulk of the assets are tied up in a private company upon which the standard of living of all family members depend and which represents one party's life work. The future resolution of liquidity problems must surely be equally governed by considerations of fairness. So in this case it seems to me fair to recognise the husband's continuing need to exercise his business talents. By contrast the wife has had no business involvement for about 25 years. The husband has not yet completed the implementation of the Baco deal. Admittedly he retains his shares in Hanmere, Inca and Halcyon. But the last is essentially under Graham's management and Inca offers scant opportunity for management. It may be that the husband would be content to rest on his laurels but that should be a matter of choice rather than an inevitable outcome of the case. After all had the wife brought her claim to trial shortly after the final separation the majority of the family's assets would have been tied up in the private companies and in assessing the wife's entitlement the judge would have had to have regard to what cash could be withdrawn from the trading companies without jeopardising their continuing trade. For those reasons it would in my opinion be fair to give some priority to a choice for the husband either to finance a future business venture alternatively to invest in the development or extension of the two trading companies that he presently owns or controls.

    67. Third in my opinion fairness certainly permits and in some cases requires recognition of the product of the genius with which one only of the spouses may be endowed. Indeed Miss Baron conceded the proposition, whilst contending that this husband was not in the category, since she submitted that he was no more than a hard working businessman. That submission does not seem to me to do justice to the husband's achievements, which clearly for their scale depended upon his innovative visions as well as upon his ability to develop those visions. It is a factor that in the present case deserves some recognition. I do not regard it as discrimination by the back door. Whilst no doubt the husband's capacity to devote himself to the expansion of the companies depended in part upon the stability and security of the home and family life which the wife created and sustained, his creativity was not so dependant to the same or perhaps to any degree.

    68. Fourth I do not consider that the husband's considerable failure to prove his case that Jeffrey was a substantial shareholder in HD Plastics and the other companies is as conclusive as Miss Baron submits. That case involved discovery of countless documents and days of evidence. All it revealed was a familiar picture of inconsistency and contradiction that usually emerges when an individual, and still more when a family, engages in wholesale tax evasion on a grand scale over an extended period. The husband had to bear the costs of his unsurprising failure to prove that Jeffrey was the owner of shares in law or equity. But I see no reason to hold that beyond that price he should be debarred from now advancing a lesser and more realistic case. The judge found the husband to be not a trustee for his brothers in the legal sense but more as a protector. I take that to mean little more than that there may be some expectation on the part of Jeffrey and Graham to share to some degree in the cargo, now that the husband's ship has come in. That may or may not create a corresponding inclination to share, depending on the dynamics of the family. But there is much evidence of the past collaboration of the band of brothers and loyalty and interdependence amongst brothers is to be respected, provided it does not diminish the cohesion of the families to which they individually belong. Another way of judging this somewhat elusive aspect of the case is to say that, even if the younger brothers are sufficiently provided to meet their current wants, I am in no doubt that if some significant misfortune overtook either Jeffrey, Graham or a member of their individual families, then there would be a shared understanding that the husband would alleviate the crisis as far as money allowed. He has always had the role of patriarch or head of the family and part of the power of such a figure is to be generous in adversity.

    69. Fifth the special characteristics of the pension funds held by the husband and the wife respectively require recognition. The husband's fund is all vested and is no more and no less than a whole life fixed rate income stream. The fact that it would costs £1.19M to purchase an identical income stream allows a capitalisation for comparative purposes. But it is not truly comparable with a cash fund of £1.19M for the obvious reason that the latter is replete with options as to deployment, investment, and spending, as well as having the capacity to survive intact the owner's demise. There is also the disparity between the values notionally ascribed to their respective pension funds. The husband's investment in this sphere put at £1.19M is nearly five time the wife's investment of £245,000. Furthermore before the wife's vested pension fund is set at that level she will have drawn, or had the opportunity to draw, an additional sum of about £45,000 in cash.

    70. All the above considerations are capable of inclusion in a review of the respective needs, responsibilities and/or contributions of the parties. They cover three of Mr Pointer's four submissions summarised in paragraph 21 above. The third, namely that much of the husband's fortune was generated in the six years post separation, receives no reflection because in my opinion it is inherently fallacious. The assessment of assets must be at the date of trial or appeal. The language of the statute requires that. Exceptions to that rule are rare and probably confined to cases where one party has deliberately or recklessly wasted assets in anticipation of trial. In this case the reality is that the husband traded his wife's unascertained share as well as his own between separation and trial, particularly committing those undivided shares to the investment in Baco. The wife's share went on risk and she is plainly entitled to what in the event has proved to be a substantial profit. If this factor has any relevance it is within the evaluation of the husband's exceptional contribution.

    71. Another submission that can be disposed of as summarily is Miss Baron's reliance on Protocol 7. To begin with statements of intention to legislate are of little immediate relevance. Second even were the Protocol ratified it would have no bearing upon the division of assets on divorce. It is to property rights and not to statutory claims in the exercise of a judicial discretion that the Protocol relates.

    72. Where do those conclusions lead me? Standing back, as it were standing on the hilltop to appraise the resulting view from the foreground to the horizon, I am in no doubt that the wife must have more and substantially more than the present judgment gives her. She first sought an additional £2.7M. She increased the target of her appeal by amendment to £4.6M. In my judgment the first target was completely unachievable at the date it was declared and the second only partially achievable in the light of the decision in White. I am of the opinion that this court should increase the wife's worth from about £3.2M to about £4.4M by increasing the lump sum from £1.775M to £3M. Since the sum total of the available assets is about £11.5M that represents an overall division of about 38% to the wife and 62% to the husband who will be left with a worth of about £7.1M after complying with our order.

    73. I would therefore allow the appeal and substitute that greater sum for the sum ordered in the court below.

    LORD JUSTICE ROBERT WALKER:

    74. I have had the great advantage of reading in draft the judgment of Thorpe LJ and I gratefully adopt his summary of the facts.

    75. In this appeal we have to consider the effect of the House of Lords' decision in White v White [2000] 3 WLR 1571. That decision is plainly very important, not least in its recognition of the need for clearly-stated principles for the guidance of advisers and mediators (as well as judges): see the speeches of Lord Nicholls and Lord Cooke at pp.1573 F and 1588 C respectively. But I cannot see the House of Lords' decision as some sort of cataclysm which has put a quarter of a century's family jurisprudence into antediluvian obsolescence. Since the House of Lords dismissed both the husband's appeal and the wife's cross-appeal from the decision of this court (Butler-Sloss, Thorpe and Mantell LJ, [1999] Fam 304, [1998] 4 AER 659) it would be very surprising if that were its effect.

    76. It is worth reflecting on the facts of White v White. Both parties were from farming families. They were both described as farmers on their marriage certificate when they married in 1961, and within a year of marriage they bought a farm of 120 acres with a fine Jacobean farmhouse for £32,000, most of it raised on mortgage or provided (in the form of a long-term interest-free loan approximating to a gift) by the husband's father. The husband and wife themselves contributed more or less equally to the initial capital of the farming partnership which they conducted for over 30 years (and which continued even after separation had put an end to their marital partnership). The partnership business was (as Thorpe LJ said in this court, [1999] Fam at p.312F [1998] 4 AER at p.644j) the dominant feature of the case. Over the years the partnership acquired a further 178 acres or so of land, and in 1996 the farm (with its live and dead stock, equipment and milk quota) was worth about £3.5m (this excludes the smaller farm which, although farmed by the partnership, was not a partnership asset). If the case is to be regarded as a "big-money" case at all, it is not because of any outstanding inventiveness or entrepreneurial skill on the part of either husband or wife, but because of their unspectacular hard work and prudence over a long period which saw large increases in the values of country houses and farms.

    77. On these facts the first-instance decision in White v White (to award the wife £800,000 or little over one-fifth of the total assets) can be seen as obviously, indeed almost grotesquely, unfair. (In justice to the judge it must be said that the outcome seems to have been heavily influenced by the way the wife's case was put forward by her legal advisers, who had changed by the time the case came to this court.)

    78. The unfairness of the outcome is underlined by the fact that the judge's decision to award nearly four-fifths of the assets to the husband was (see [1999] Fam at p.311A-C, [1998] 4 AER at p.663d-e) set out in a single paragraph entitled 'Husband's reasonable requirements' (emphasis supplied). The husband could "reasonably require to be able to continue farming in a worthwhile way" but a similar aspiration on the part of the wife was adjudged "unwise, and not justifiable". Her reasonable requirements were to be satisfied on Duxbury lines (see Duxbury v Duxbury (1985) [1992] Fam 62, [1990] 2 AER 77). That was an unfair discrimination between husband and wife, and this court recognised it as such. Thorpe LJ said ([1999] Fam at p.317B, [1998] 4 AER at p.669a):

    "In my opinion there is no fairness in such an outcome. Indeed it offends my sense of fairness that a wife who has worked for over 30 years equally and not nominally in partnership should exit with anything less than her legal entitlement in the absence of extraordinary features."

    Butler-Sloss LJ said ([1999] Fam at p.321D, [1998] 4 AER at p.673a-c):

    "[The judge] gave no reasons for reducing her entitlement from £1.5m to approximately £1m when it was manifest, and the judge said as much, that the £500,000 which he transferred from the wife to the husband was in excess of the husband's reasonable requirements. It seems clear that omission was as a result of his concentration upon the wife's reasonable requirements starting again from the basic figures, Duxbury fashion, and thus overlooking her entitlement to the greater sum as the starting point. In that he erred in principle. But I have considerable sympathy with him, since counsel, then appearing for the wife, argued the case first on contribution and not principally on entitlement and, as an alternative argument, took the judge along the Duxbury route."

    79. In these circumstances there was to my mind nothing particularly startling or revolutionary in the speech of Lord Nicholls (with which the other members of the House of Lords agreed, Lord Cooke adding some observations about the development of the law in Australia and New Zealand). Lord Nicholls made very clear ([2000] 3 WLR at p.1579 A-F) that he was not introducing a disguised presumption of equal division and that any such presumption would be a matter for Parliament. He described Duxbury (at p.1582 E) as a useful guide to assessing the capital cost of an income requirement, but nothing more. He traced (at pp.1580 A - 1581 D) the history of the judicially-developed concept of 'reasonable requirements' from its origins in the judgment of Ormrod LJ in O'D v O'D [1976] Fam 83, 91, noting the different views as to its general usefulness expressed in Dart v Dart [1996] 2 FLR 286.

    80. Then came (at p.1581 G-H) an important passage in Lord Nicholls' speech, on which both sides relied:

    "The statutory provisions lend no support to the idea that a claimant's financial needs, even interpreted generously and called reasonable requirements, are to be regarded as determinative. Another factor to which the court is bidden to have particular regard is the available resources of each party. As my noble and learned friend, Lord Hoffmann, observed in Piglowska v Piglowski [1999] 1 WLR 1360, 1379, section 25(2) does not rank the matters listed in that subsection in any kind of hierarchy. The weight, or importance, to be attached to these matters depends upon the facts of the particular case. But I can see nothing, either in the statutory provisions or in the underlying objective of securing fair financial arrangements, to lead me to suppose that the available assets of the respondent become immaterial once the claimant wife's financial needs are satisfied. Why ever should they? If a husband and wife by their joint efforts over many years, his directly in his business and hers indirectly at home, have built up a valuable business from scratch, why should the claimant wife be confined to the court's assessment of her reasonable requirements, and the husband left with a much larger share? Or, to put the question differently, in such a case, where the assets exceed the financial needs of both parties, why should the surplus belong solely to the husband? On the facts of a particular case there may be a good reason why the wife should be confined to her needs and the husband left with the much larger balance. But the mere absence of financial need cannot, by itself, be sufficient reason. If it were, discrimination would be creeping in by the back door. In these cases, it should be remembered, the claimant is usually the wife. Hence the importance of the check against the yardstick of equal division."

    81. Lord Nicholls emphasised the importance of that check by referring to it three times (see also p.1578 H and p.1579 H). He went on to suggest that it might be better to return to the language of the statute (section 25 of the Matrimonial Causes Act 1973 as substituted by section 3 of the Matrimonial and Family Proceedings Act 1984) and to stop using the troublesome expression 'reasonable requirements'. He said (at p.1582 B-C):

    "But the end product of this assessment of financial needs should be seen, and treated by the court, for what it is: only one of the several factors to which the court is to have particular regard. This is so, whether the end product is labelled financial needs or reasonable requirements. In deciding what would be a fair outcome the court must also have regard to other factors such as the available resources and the parties' contributions. In following this approach the court will be doing no more than giving effect to the statutory scheme."

    82. In citing these passages Miss Florence Baron QC (appearing with Mr Simon Gill for Mrs Jacqueline Cowan) relied on Lord Nicholls' emphatic statement that financial needs (or reasonable requirements) are only one of several factors, including available resources and the parties' contributions to the welfare of the family. Mr Martin Pointer QC (appearing with Mr Valentine Le Grice for Mr Michael Cowan) relied on the "If" at the beginning of Lord Nicholls' second rhetorical question, and on his observation that, on the facts of a particular case, there may be good reasons for confining a wife's provision to her needs.

    Financial Needs (or Reasonable Requirements)

    83. The facts of the present case vividly illustrate some of the difficulties inherent in all three of the important variables singled out by Lord Nicholls: financial needs, contributions to welfare, and available resources. At or near the poverty line, financial needs (so far as not met by income support or housing benefit) are basic and capable of reasonably accurate quantification: rent, services, food, clothing, travel to work, and so on. Towards the other end of the spectrum, a sort of variant of Parkinson's Law seems to set in, by which needs (or requirements) expand to fill the available resources.

    84. I would find it rather incongruous, and I dare say that Mrs Cowan herself (who knows what it is like to bring up two small children in a council house on a very small income) would also find it incongruous, to describe as needs some of the items listed in her schedule of expenditure exhibited to an affidavit sworn on 17 June 1998: nearly £10,000 a year on clothes, footwear and jewellery, over £3,000 a year on pets' food and the farrier, and over £36,000 a year on personal care, sports, entertainment and holidays. In fairness to Mrs Cowan she did not in her affidavit describe all these expenses as necessities, and she said that she had not been able to enjoy some of these things since her separation. But this evidence formed the basis of Miss Baron's submission that the judge's assessment of her needs at £100,000 a year (after tax) was far too low. To my mind a separated wife should not have to persuade the court that she has become incurably addicted to a lavish lifestyle in order to obtain a fair share of the matrimonial assets.

    85. The concept of reasonable requirements is (as Thorpe LJ said in Dart v Dart [1996] 2 FLR 286, 296) an elastic one. Enquiry as to whether any particular set of requirements is reasonable inevitably brings other matters into play. One approach (as Wilson J noted in Conran v Conran [1997] 2 FLR at p.623 D) is

    " ... to allow for her contribution, as well as all the other relevant factors, in determining the reasonableness of her requirements. In other words her contribution will make it reasonable for her to have greater requirements. "

    86. But Wilson J felt that in a really 'big money' case that approach did violence to language, and was not consistent with section 25(2) of the Matrimonial Causes Act 1973. I respectfully agree with that.

    Contributions to Family Welfare

    87. The facts also illustrate the difficulty of assessing contributions which are largely of a different character and are therefore inherently incommensurable. Wilson J in Conran v Conran 1997 2 FLR 615, 625 described the task as being sometimes "a profoundly difficult exercise, which can be undertaken only in the most general way". In that case Wilson J was concerned with a husband who had made a huge fortune by his talents, and an equally talented wife who had made a significant contribution to the husband's success (but, as Wilson J added at p.628, "it would be absurd to conclude that the wife played anything approaching an equal role with the husband in the actual generation of his wealth").

    88. The case of Gojkovic v Gojkovic [1990] 1 FLR 140 was a case in which the contributions of husband and wife were held to have been equal (arguably the wife's had been greater). They had come to this country in 1966 without any savings and had built up a successful hotel business by hard work and sacrifice during nine years' cohabitation and a further nine years' childless marriage. To my mind the only surprising feature of the case is that it was the husband and not the wife who appealed against an order awarding her a lump sum of £1m out of available assets worth £4m.

    89. White v White was not as clear-cut as Gojkovic v Gojkovic: the husband and wife received valuable assistance from his side of the family, and the wife had three children, caring for whom must at times have restricted her direct contribution to the farming partnership. But she also worked hard on the farm. The case resembled Gojkovic v Gojkovic in that the marriage had got into the 'big money' league through years of hard work and prudent management rather than through wholly exceptionally entrepreneurial or inventive talent.

    90. The court looks at authorities primarily for principles, not in order to engage in any detailed comparisons between the facts of different cases. Nevertheless in this area of family law some reference to the facts of decided cases is necessary in order to breathe life into the generality of principles. The judge (see paras. 52 and 53 of his judgment) said that he had no difficulty in concluding that Mrs Cowan was not in the same league as Mrs Gojkovic or Lady Conran. He did not indicate what league he would put Mr Cowan in, but he did refer to his "entrepreneurial flair and drive and his technical knowledge and inventiveness".

    91. Both sides suggested in argument that if this case had been tried after the House of Lords had given judgment in White v White, the evidence as well as the submissions would have been very different. That may be so, but if so I find it rather surprising. Gojkovic, Conran and White (in this court) had all been heard and reported well before the trial; issues of exceptional contributions had been debated; and Miss Baron made clear at trial that she was seeking an equal division (see para 148 of the judgment).

    92. On the evidence which he did have, the judge made some reasonably clear findings. I have already referred to what he said about the husband's talents. He said that the wife's direct contribution was not insignificant, but that it weighed light in the balance. He was unable to make any definite findings about the duration of the period (probably spanning 1970) during which the wife was actively involved in starting up the polythene business (on the dates which were bandied about in evidence this period could have been as short as one year or as long as eight, but the weight of the evidence tended towards the longer end of the bracket).

    93. There is no ground on which this court could interfere with the findings of the judge who saw and heard the witnesses. But having studied passages of the witness statements and transcripts I think it is possible that the judge did, paradoxically, tend to undervalue the contributions made by both parties to the marriage (any such errors would cancel each other, except so far as they pushed the case further into the exceptional range).

    94. Mr Cowan was not merely a successful businessman but an exceptionally active, determined and innovative businessman. (It has to be said that he was also rather an unscrupulous businessman, so far as paying taxes was concerned.) In his evidence in chief he gave a vivid account, not challenged in cross-examination, of how the business grew from being mere merchants of polythene to being manufacturers, first of ordinary polythene and then of high density polythene, with the constant need to investigate new sources of raw materials, manufacturing plant and technical processes. The manufacturing started in an old mill at Watton-at-Stone, then moved to Letchworth, and then to the present factory at Biggleswade. The business suffered various vicissitudes including the simultaneous departure of several key staff in the mid-1980's.

    95. Mrs Cowan was on any view directly involved in the business only in its infancy, when she drummed up custom by cold-calling builders (who were beginning to use polythene sheeting for damp-proofing) and delivered orders by car with one or both of her young sons, and the dog, in the back. She too worked very hard and showed courage and determination in a fairly tough man's world. Mr Cowan himself readily acknowledged that in the very early days the business was carried on largely by his wife, based at home. If it is the first step that counts, Mrs Cowan does seem to have played an important part in Mr Cowan's transition from being a wage-earner to having his own business.

    96. The judge may also, I think, have paid insufficient attention to Mrs Cowan's evidence that she became, in effect, a clerk of works after her husband bought Hadham Grange in 1976. One of the many remarkable features of this case is that (despite the no doubt insatiable demands of the business for further capital investment) Mr and Mrs Cowan managed to move from a council house in Stevenage (where they lived until 1963) by way of two modest owner-occupied properties, to the purchase in 1976 of Hadham Grange, a property now valued (in a greatly improved state) at more than £1m. That is another indication of their ambition and energy. Even so, the purchase in 1976 was possible only because Hadham Grange was in a very dilapidated state, and Mrs Cowan undertook a lot of practical responsibility (though not financial responsibility) for its repair and improvement. She was also bringing up their two sons, who started their formal education at a local primary school and ended it at a fee-paying boarding school in Cambridge.

    97. In his judgment (which was reserved for over four months) the judge made some reasonably clear findings of fact, to which I have already referred, about the parties' respective contributions. I do not think he can be criticised for being unable to make clearer findings about events which occurred 30 years or more ago, and which were not covered by documentary evidence. He then referred to Conran v Conran and to Vicary v Vicary [1992] 2 FLR 271, 289, where Purchas LJ said that he could not accept

    " ... that there is in some way a distinction between those cases in which the wife makes an actual financial contribution to the assets of the family and those in which her contribution is indirect inasmuch as she supplies the infrastructure and support in the context of which the husband is able to work hard, prosper and accumulate his wealth. I can find no justification in logic or authority in law for making an arbitrary distinction of this kind. "

    98. That passage is fully in line with Lord Nicholls' speech in White v White, especially the passage (at p.1581 E-H) quoted in paragraph 6 above. The most serious criticism of the judgment under appeal (and in my view an unanswerable one) is that after the judge's careful review of the parties' respective contributions, he moved abruptly (in para 151 of his judgment) to reaching his conclusion on an assessment of Mrs Cowan's reasonable requirements. But before discussing that further I should say something about the third important variable, available resources.

    Available Resources

    99. Given the complex nature of Mr Cowan's financial affairs and the acrimony which has unfortunately attended this litigation, the parties and their advisers deserve some credit for managing, at least by the second day of the appeal hearing, to reach a large measure of agreement as to the identity and approximate value of the assets which are available for division. One of the last important steps in the process was this court's decision not to entertain a late respondent's notice asserting that Mr Cowan's brother Jeffrey has an enforceable equitable interest (and not merely possible moral claims, to which I return below) in one-fifth of Mr Cowan's shareholdings in his private companies. Another important step was the parties' agreement on reasonably definite figures (although not absolutely final figures) for what Mr Cowan will receive, after capital gains tax, from the sale of his 1980 B shares in Baco Consumer Products Ltd ("Baco") and the early redemption of his £4.4m 5% Baco loan stock 2005-9.

    In these circumstances the judge's conclusions as to the available resources, and their allocation between the parties, can be set out in a simplified form which is still close to the figures agreed on the last day of the hearing:

     £m   
     total husband wife 
    residences
    (free of mortgage) 
    1.7 0.6 1.1 
    Hanmere, Halcyon, Inca 2.2 2.2 nil 
    proceeds of Baco (net) 6.8 5.0 1.8 
    other assets 0.6 0.5 0.1 
     11.3 8.3 3.0 
    liabilities (include mortgages and costs paid) (1.3) (1.2) (0.1) 
    pension equivalents 1.5 1.2 0.3 
     11.5 8.3 3.2 

    100. However unfairly Mrs Cowan may feel that she has been treated, it is apparent that two events since 1992 (when Mrs Cowan first issued, but did not serve, her divorce petition) have operated in her favour. One is the settlement (following an offer letter dated 3 December 1996) of Mr Cowan's investigation by the Special Compliance Office of the Inland Revenue; the other is the disposal, since the first-instance judgment was delivered, of Mr Cowan's Baco B shares and loan notes for a total consideration estimated (net of capital gains tax) at £6.794m. These two events mean that the husband's assets are much more readily defined, and are much more liquid, than would otherwise have been the case.

    101. Mr Pointer correctly submitted that the capital value attributed to Mr Cowan's pension rights is not a freely disposable asset, and must be enjoyed in the form of a taxable annuity (Mr Cowan has already drawn down the permitted lump sum in order to help fund his settlement with the Inland Revenue). The judge seems to have had that point well in mind (paras 27 and 134) in considering Mr Cowan's capital and income resources. The figure of £1.19m mentioned as the notional capital value of the pension rights is based on the cost of a purchased life annuity (which receives more favourable treatment for income tax purposes) and is less than the actual cost of an annuity acquired by an exempt approved pension scheme. This is not a case in which Mr Cowan will be restricted to a single immutable source of income. He will have a large fund of free capital to invest as he chooses. He will also control the three private companies which remain unsold (Hanmore, Halcyon and Inca) and will be able, in conjunction with his brothers, to decide whether these investments should be disposed of or retained.

    102. The judge devoted a good deal of his judgment to a review of the evidence as to whether Mr Cowan held part of his holdings in trust for his brother Jeffrey. The judge reached the clear conclusion, on ample grounds, that that had not been established (para 88):

    "[Mr Cowan's] evidence therefore totally failed to persuade me that the position is as he represented it, either in relation to any firm understanding or agreement between the brothers prior to the dismemberment of the Jersey Trust, nor as to any such agreement in any way binding upon [Mr Cowan] at the time of the Inland Revenue negotiations or subsequently."

    103. Mr Pointer relied heavily on the following paragraph of the judgment to suggest that the judge found that Mr Cowan was in the position of a trustee of a discretionary trust. But that paragraph must be read in context. Its thrust was to say that Jeffrey did not have a beneficial interest, not to deny that Mr Michael Cowan did have such an interest. His only discretion was whether or not to give away his own property. As Hutchinson J said in El Awadi v Bank of Credit [1990] 1 QB 606, 617,

    " ...it makes no sense to talk of a discretion that is entirely divorced from any kind of obligation or duty in regard to which the discretion is exerciseable. For me to stipulate that I have an absolutely unfettered discretion whether to make good the loss of a £5 note which is blown into the Thames from the hand of an old lady queuing for a bus in front of me is a true but pointless assertion."

    104. In my view the judge was clearly right on this point, and we refused permission for a late respondent's notice challenging his conclusion. That is not to say that Mr Cowan did not and does not have a genuine wish and intention to act generously towards his brothers, and especially towards Jeffrey (Mrs Cowan has at all times accepted that Mr Michael Cowan's other brother Graham does have an enforceable beneficial interest in part of the Halcyon shares). I would not accept Miss Baron's submission that Mr Cowan's failure to establish that Jeffrey has an enforceable interest excludes any possibility of a moral claim.

    105. Nevertheless I would attach very little weight to Jeffrey's moral claim. All the evidence (including Jeffrey's own very candid evidence) suggests that Jeffrey made only a small contribution to the outstanding success of Mr Michael Cowan's businesses, and that Jeffrey has already been rewarded on a very generous scale. If Mr Cowan wishes to give his brother more, that is a matter for him. But someone in his position must be just before he is generous. Any further provision which Mr Cowan wishes to make for his brother Jeffrey must come out of his own share of the matrimonial assets, and cannot be a reason for diminishing his wife's share.

    Conclusion

    106. This case is unusual and of some general importance, in that it requires this court to apply the principles derived from the House of Lords' decision in White v White in circumstances where there was much less equality of proprietary entitlement as between husband and wife, and where his contribution (in terms of entrepreneurial flair, inventiveness and hard work) was truly exceptional. I have therefore thought it right to set out my own views on some of the special features of this case.

    107. Nevertheless I am in general agreement with the more profound analysis of the issues in the judgment of Thorpe LJ, and with his observations on the part which Parliament has to play in the development of this area of the law. Like Thorpe LJ, I think that the judge erred in placing too much weight on 'reasonable requirements' (and in bringing in contributions to welfare only as a sort of fine-tuning of the 'reasonable requirements' test). Like him I think that that entitles (and indeed requires) this court to exercise its own discretion. I agree with him that (for the reasons which he gives) that does not lead to the conclusion that there should be the equal (or near-equal) division for which Miss Baron has contended. I agree that this appeal should be allowed and that the lump-sum provision for Mrs Cowan should be increased from £1.775m to £3.0m, leaving all the other provisions of the judge's order undisturbed.

    LORD JUSTICE MANCE:

    108. The basic contours of this appeal are clear. They are mapped more fully in the judgment of Thorpe LJ, with the benefit of which I can confine myself to outlines.

    109. The appeal concerns a long marriage, contracted in 1959 when Mr Cowan was 19 and Mrs Cowan 17. Sons were born in 1959 and 1963. There was a final separation, against Mrs Cowan's wishes, in 1994. Mr and Mrs Cowan were divorced in Spring 2000. When they married, they were without means. By the time they separated, their assets, mainly accumulated by and belonging to the husband, were very substantial. It is sufficient to take round figures, and I gratefully adopt those in the table set out in Robert Walker J's judgment. In summary, at 31st July 2000, when Singer J. gave his judgment under s.25 of the Matrimonial Causes Act 1973, as amended, the principal home, Hadham Grange, Much Hadham (held since 1992 in joint names) was worth £1.1 million; the husband was held to have other net assets totalling nearly £10.2 million, and the wife had other net assets totalling £245,000. Total net assets were over £11.5 million.

    110. This accumulation of wealth was due to the successful development over the years of various plastics businesses and the recent part disposal of a major interest in such businesses. The wife was involved in the first of these businesses, Hanmere Ltd. ("Hanmere") in the very early years (the 1960s and possibly early 1970s). At the start she was indeed the only person actively involved in that business, which involved small-scale merchandising of polythene sheeting, buying from wholesalers and reselling to retailers. At trial, much of her case was aimed at establishing that her resulting contribution to the overall success had been significant. In this she failed. The judge held:

    "50. I have no reasons to suppose that, whatever the extent of her involvement, W was other than conscientious and energetic. But I am quite unable to ascribe to her involvement anything other than a minor role in the overall development of these businesses, which clearly was engineered and directed by H. ....

    51. It is, in my view, quite simply unrealistic for W to say .... That during the early 1970s H totally took over "my executive responsibility". Of course she may have contributed ideas in the early stages, but the reality was that she telephoned and canvassed orders, picked up and delivered goods, and managed to combine that and no doubt a modest degree of bookkeeping with running the home and caring for the children.

    52. W's case remains however that without the initial groundwork which she did in this period there would have been no polythene business to develop into what today exists. In a causal sense this may to a degree be true. But the initial steps which she took, although by no means insignificant, weigh light in the balance by contrast to the contribution made by H's entrepreneurial flair and his technical knowledge and inventiveness."

    111. In short, although it may be that Mr Cowan would never have given up his other activity as a draughtsman and engaged full-time in polythene, but for his wife's previous engagement, the initial and somewhat basic business of buying and selling polythene was not the source of the subsequent success and wealth. That was due to Mr Cowan's own resourceful and determined expansion into other fields. In the course of Mr Cowan's evidence, Miss Baron expressly accepted him as an innovative and expert business-man, and did not cross-examine on his account of what had been achieved. His evidence showed that in 1968 he moved Hanmere from distribution of polythene into the manufacture of polythene bags from bought-in film. In 1970, Hanmere joined the then very limited number of polythene film manufacturers. It bought granules from oil companies and extruding polythene into tubes for manufacture into bags. Mr Cowan was the first or second manufacturer to see the savings to be made by eliminating the intermediate stage, and (using a process kept secret for years) making bags direct from film. Later he was at the forefront of development of multi-layered bags. During a visit to a chemical company in Zurich, he realised the potential of high density polythene in its experimental stage, and established HD Plastics ("HD") to make thin bags and sacks; he was a prime-mover in the introduction of bin-liners, using high density polythene, into this country; seeing their potential for use in lieu of dust-bins; he persuaded Guildford City Council to adopt them, and other local authorities followed suit, to the point where HD held half the national market (some 200 million bags a year). When local authorities began to use wheelie bins, he realised the attraction, as an alternative outlet, of the bags on rolls which feature in almost every supermarket. To meet the expectations of the supermarkets who became HD's customers, he built through Inca Properties Ltd. ("Inca") a factory for HD which won the Best Small Factory Award. Halcyon Plastics Ltd. ("Halcyon") was established and run on a day by day basis by his brother, Graham (who held, on Mr Cowan's case, 30% and, on the wife's case, 49% of the shares). Halcyon was at first unsuccessful, but was subsequently re-organised to prosper in the international merchandising of plastics and other commodities. In the mid-1980s, Mr Cowan, with assistance from Jeffrey and great effort, surmounted what he described as the "very destructive" loss of his managing and sales directors, with office and factory staff and sales records. Hanlex Ltd. ("Hanlex"), formed to develop "zippable" bags, to ensure the safe re-sealing of the contents of, for example, Muesli packets, was one venture which, perhaps surprisingly, did not prosper. Mr Cowan was also shrewd in the way in which, with expert legal and accountancy assistance, he achieved a very favourable (or, as it was termed before the judge, "sub-standard") settlement with the Inland Revenue in 1996, involving payment of only [sic] £2,511,000 and dismemberment of the "sham" trust structures by which Halcyon, Hanlex and Inca had been held abroad, as well as in the way in which he realised his interest by selling the major business of HD to Baco Consumer Products Ltd. ("Baco") in and after 1997.

    The Impact on the Judge's Judgment of White v White

    112. The judge sought to exercise the discretion conferred by s.25 in a manner consistent with previous authority in this court. At one point he expressly rejected an invitation by Miss Baron QC for Mrs Cowan to "break new ground". Since his judgment, the House of Lords has handed down its decision in White v White [2000] 3 WLR 1571. The leading speech of Lord Nicholls in that case urges a return to the language of s.25, and the abandonment of any test or attempt to paraphrase that section in terms of "reasonable requirements". Lord Nicholls said at page 1581E-G:

    "The statutory provisions lend no support to the idea that a claimant's financial needs, even interpreted generously and called reasonable requirements, are to be regarded as determinative. Another factor to which the court is bidden to have particular regard is the available resources of the parties. .... [S]ection 25(2) does not rank the matters listed in that subsection in any kind of hierarchy. The weight, or importance, to be attached to these matters depends upon the facts of the particular case. But I can see nothing, either in the statutory provisions or in the underlying objective of securing fair financial arrangements, to lead me to suppose that the available assets of the respondent become immaterial once the claimant wife's financial needs are satisfied. Why ever should they? ...."

    113. Miss Baron submits that White v White undermines the judge's reasoning and conclusion. Mr Pointer QC for Mr Cowan submits that the judge's reasoning and conclusion remain valid. Alternatively, and acknowledging the tension between these two submissions, he submits that, if the judges' reasoning fails to take full account of the principles and considerations relevant under White v White, the matter requires to be remitted for further consideration by the trial judge. It is in these circumstances necessary to consider precisely how Singer J. viewed and decided the case below.

    114. A major factor, to which the judge said that he gave "significant weight", was the length of the marriage. Then in paragraphs 145-147 he said this:

    "145 ..... Another factor which weighs heavily (although not with the weight for which W has contended) is the balance of contributions which each of the spouses has made over the effective duration of their marriage, thirty-five years until separation 6 years ago.

    146 H's contribution is manifest. It can be measured crudely in the assessment of the resources which I have undertaken, and which puts a monetary valuation upon his drive, vision and inventiveness. It is clearly the case that his businesses have for many years absorbed his energies and his time. He is clearly an exceptionally hard worker.

    147 It is in this context that W's contributions must be assessed. Of course I take into account the extent (although I have found it to be modest in the scope of the whole) to which she contributed to the germination of the seed of these businesses before they really flourished and spread. But that is just one ingredient in the contribution to the welfare of the family which she made over all those years. For the necessary consequence of the time and energy which H put towards his work is the extra burden of responsibility which inevitably W would have to meet in bringing up the children and organising the life of the family."

    115. The judge then rejected the invitation to "break new ground" by espousing judicially a view he had expressed at the bar and holding that

    "in an appropriate case equal division might be appropriate, even if it went beyond what was required to meet the wife's 'reasonable requirements'."

    116. His reasons for rejecting this invitation were evidently that previous authority constrained him and that the path which Miss Baron invited him to take "might well lead the parties to further litigation". Another factor was this:

    "For when I set the outcome Miss Baron suggests as reasonable (although, in the nature of things, no doubt the highest reasonable, rather than the lowest reasonable, outcome) against what I have found to be the measure of this family's wealth, it is apparent that equality need not be invoked to reach it. And, as will be evident in the result, Miss Baron has not undersold her client's case by pitching it too low."

    117. This refers to the fact that, although Miss Baron did submit below that "broad equality" would be fair, when it came to the figures, she limited the wife's claim to some £4 million, or about 35% of the total assets. Her expressed reason was partly the way in which the scope of the husband's assets had emerged during the trial and partly, it seems, a recognition that previous authority was against her. The judge's comment, in the passage last quoted, remains, however, to my mind somewhat opaque. Miss Baron was not ultimately contending for, and the judge was not accepting, equality as the test. But neither was Miss Baron accepting a test of "reasonable requirements". The judge did not indicate whether he was referring to such a test, or what he had in mind, when referring at this point to a "reasonable" outcome.

    118. The judge went on to say that he regarded this

    "as a conventional case upon which operate prominently the twin considerations of length of marriage and balance of (albeit qualitatively differentiated) contribution."

    119. In paragraphs 149-150 and 158, he then commended and adopted the approach and analysis set out by Wilson J in Conran v Conran [1997] 2 FLR 615, in the passage headed "The Law" commencing at page 623B. That approach and analysis was primarily concerned with the nature and significance of a wife's contribution under s.25. It had two relevant aspects. First, Wilson J identified an issue of formulation, namely whether such a contribution bore on the "reasonableness" of a wife's requirements in the context of an overall test of "reasonable requirements" to be derived from s.25 (an approach suggested by reasoning of Thorpe LJ in Hart v Hart [19967] 2 FLR 286, 296-7), or whether it was an additional factor to be placed in the balance after reasonable requirements had been ascertained. He saw this as an interesting, though probably academic issue, but preferred the latter view. Now that the House of Lords in White v White has suggested that courts would do well to avoid the concept of "reasonable requirements", neither formulation is appropriate. Secondly, Wilson J assimilated a wife's family contribution in the home with a working husband's financial contribution, quoting (as did Singer J. below) words of Purchas LJ in Vicary v Vicary [1992] 2 FLR 271, 289:

    "I regret that I am unable to accept Mr Connell's submission that there is in some way a distinction to be drawn between those cases in which the wife makes an actual financial contribution to the assets of the family and those in which her contribution is indirect inasmuch as she supplies the infrastructure and support in the context of which the husband is able to work hard, prosper and accumulate his wealth. I can find no justification in logic or authority for making an arbitrary distinction of this kind. Of course the value of the contribution, whether direct or indirect, is one of the factors which are properly to be taken into account when applying s.25 to the exercise of determining what the lump sum should be. In making the comparison, it is for the judge to assess the worth of the wife's contribution; but this is essentially a matter for him."

    120. This passage was not quoted in the speeches in White v White. But its first two sentences, at least, are clear precursors to what Lord Nicholls said there at page 1578D-G:

    "Typically, a husband and wife share the activities of earning money, running their home and caring for their children. Traditionally, the husband earned the money, and the wife looked after the home and the children. This traditional division of labour is no longer the order of the day. Frequently both parents work. Sometimes it is the wife who is the money-earner, and the husband runs the home and cares for the children during the day. But whatever the division of labour chosen by the husband and wife, or forced upon them by circumstances, fairness requires that this should not prejudice or advantage either party when considering para (f) of s 25(2) of the 1973 Act, relating to the parties' contributions. This is implicit in the very language of para (f):'... the contribution which each of the parties has made or is likely ... to make to the welfare of the family, including any contribution by looking after the home or caring for the family.' (Emphasis added.) If, in their different spheres, each contributed equally to the family, then in principle it matters not which of them earned the money and built up the assets. There should be no bias in favour of the money-earner and against the homemaker and the child-carer."

    121. Singer J. then turned in paragraph 151 of his judgment to "my assessment of W's reasonable requirements". In the course of making that assessment, he considered, at paragraph 154, whether he should assume that Mrs Cowan would move to a less expensive house in five years or at some other point. He declined to do so, saying that this was "precisely the sort of area upon which the nature and duration of W's contribution impinges". This seems to me, however, rather to adopt the first formulation identified by Wilson J in Conran v Conran than that which Wilson J had actually preferred. Later, the judge returned expressly to the alternative formulations mentioned by Wilson J and said at paragraph 159:

    "It seems to me entirely consistent with either approach where (as here) length of marriage and nature of contribution enhance entitlement, or (as might in another case) some other feature call for special contribution [sic], to tailor the shape and function of the award rather than just to move it up or down in monetary terms. And so in this case I regard it as fair to both parties that the shape of W's future life should encompass the ability to spend some months of each year in her own home abroad, and that the function of the lump sum provision that H should make for her is to enable her to continue to live between her two homes, if she wishes, for life."

    122. Adopting that approach, he arrived at £100,000 per annum as the amount for which capital provision should be paid to her by H, on the basis that she would also have the benefit of her own pension entitlement and her existing modest unearned income. Applying the Duxbury approach, he arrived at a figure of £1.58 million. That, after taking into account his order that Mr Cowan discharge the mortgage debt on her Florida property and on Hadham Grange and transfer to her his interest in Hadham Grange, led him to order that Mr Cowan pay Mrs Cowan a lump sum of £1.775 million. As a final stage in the process, the judge said in paragraph 167 that he had surveyed the overall effect of the order, and that, set against the scale of the parties' overall wealth, it did not seem to him unfair to either party.

    123. The judge's starting point was therefore a test of "reasonable requirements". He acknowledged that contribution could have relevance, either in expanding the scope of what might be "reasonable" in this context, or, as Wilson J had preferred to see it, as an additional factor to weigh in the balance after ascertaining reasonable requirements. But it was on the requirements of Mrs Cowan, in the sense of her needs and wishes to enable her to maintain her accustomed life-style, that the judge focused centrally. He viewed the exercise of his statutory discretion through a prism that the House of Lords has subsequently rejected as inappropriate and confusing. He cannot be criticised. No-one wanted his judgment to be withheld pending the uncertain date of the Lords' ruling in White v White. However, in my view, the reasoning and decision in White v White undermine the judge's reasoning in the present case. A re-exercise of the statutory discretion is called for, either by this court or, if we conclude that we cannot undertake the exercise, then by remission to the trial judge.

    Factors relevant to the exercise of discretion following White v White

    124. Freed from the constraint of previous authority, Miss Baron's case before us became by amendment that there should be effective equality in the overall split of assets. She seeks, in lieu of the order that Mr Cowan pay £1,775,000, an order for payment of £4,600,000 (with Mrs Cowan taking Hadham Grange and her own limited assets as before). Before addressing the rival submissions on this aspect further, I shall however necessary note three points raised by Mr Pointer relating to the nature and extent of the relevant assets.

    (a) Jeffrey

    125. First, Mr Pointer submits that the judge ought, in his figures, to have taken account of a beneficial entitlement of Mr Cowan's brother, Jeffrey, to shares in Halcyon, in HD (and in its proceeds on and after the sale to Baco) and in Inca. Any interest Jeffrey might have in Halcyon is in fact financially irrelevant, since both parties accept that Mr Cowan held no more than 51% of the shares. The difference between the parties was whether the 49% belonged exclusively to Graham or whether it was split between Graham and Jeffrey in the proportions of 30% and 19%. Whether Jeffrey had a 20% interest in HD (and so in its proceeds) and Inca is however significant. Mr Pointer submits that the judge accepted Jeffrey's entitlement, but failed to take it into account financially. I cannot accept that submission. Mr Cowan asserted on affidavit that he held 20% of the shares on trust for Jeffrey. The issue before the judge was whether that was so. Singer J determined that issue against Mr Cowan. He took an adverse view of Mr Cowan's credibility on it. He said at paragraph 100:

    "I therefore without any real doubt, having heard and seen H and the witnesses he relied upon on this topic, conclude that this aspect of the case has been an attempt by H deliberately to maintain a presentation for which he must be aware there is no firm foundation whatsoever."

    126. Earlier, in paragraph 88, he said that Mr Cowan's evidence had

    "totally failed to persuade me that the position is as he represented it, either in relation to any firm understanding or agreement between the brothers prior to the dismemberment of the Jersey Trust, nor [sic] as to any such agreement in any way binding upon H at the time of the Inland Revenue negotiations or subsequently."

    127. In paragraph 89, he used language on which Mr Pointer relies. He said:

    "In my judgment H has behaved, not as a man who has made a perfected gift or entered into a contractual arrangement, but more like a trustee (or perhaps a more appropriate word might be "protector") of a discretionary trust, of which JC (and indeed GC) were potential beneficiaries. I do not believe that he has been prepared in relation to any of these companies to commit himself to parting with the actual shares or their value. I believe that the same must go for the Baco shares and for the loan notes."

    128. Mr Pointer submits that the judge here accepted that shares were held on trust for Mr Cowan's two brothers, Jeffrey and Graham. But that would mean that Mr Cowan had, contrary to the judge's express further statement, parted with the shares. The judge's analogy was not I think felicitous. The Jersey trust, which apparently held the shares in Halcyon, HD and Inca was (admittedly) a sham (paragraph 32). Mr Cowan remained in effective and absolute control. It is clear that all the judge meant was that Mr Cowan viewed the shares, wherever they were lodged, as his to retain or to distribute among or between himself and in particular his brothers (but in reality anyone else he might choose) as and when he wished. In legal terms, Mr Cowan remained the legal and beneficial owner of the shares in HD (until the sale to Baco) and Inca.

    129. Shortly before the appeal, Mr Pointer sought an extension of time and permission for service of a respondents' notice, challenging the judge's findings, if and to the extent we concluded that the judge had held Mr Cowan to remain the legal and beneficial owner of such shares. We refused the application, but on the basis that the refusal did not prevent Mr Pointer from contending that he was free to argue that the judge's finding in paragraph 89 was a factor that the court should give weight to in assessing overall fairness in accordance with White v White. Mr Pointer subsequently contended that a moral obligation to dispose of assets in a particular way could be relevant under White v White, and that paragraph 89 supported the view that there had been or may have been such an obligation. Had the hearing taken place after White v White, the moral obligation point would, he submitted, have been investigated, and accordingly, there should be a further hearing before Singer J. to investigate it now.

    130. Again, I am unable to accept this submission. Had there been any basis for asserting a moral obligation, it could have been very helpful to Mr Cowan in explaining and justifying his case that he held 20% of the shares on trust. Indeed, there were efforts to give the alleged trust a "rationale", beyond the mere explanation of family generosity. The rationale included alleged loans by Hanmere to HD which supposedly "kick-started" HD and alleged work done by Jeffrey in relation to HD (see judgment paragraph 35). The judge evidently thought little of either aspect of the suggested rationale. I do not doubt that a moral obligation could in the right circumstances be of relevance, when considering the appropriate distribution between spouses of accumulated wealth. One may, for example, think of a spouse who was, with his or her partner's knowledge and consent, accustomed to support a parent or siblings or other relatives or a small charity, in circumstances where the relative or charity would depend on further support for the future. Surely, the wish to continue such support would be entitled to some weight, although how much would depend on the other circumstances. Here, however, Jeffrey, has been, on the face of it, well-rewarded in the past for such activity and involvement as he had, which was also, principally, in the early years. He has a substantial (44%) share-holding in Hanmere worth some £880,000 in 2000, and he continues to receive out of Hanmere pension, salary and other benefits worth over £125,000 in 1998. He has received a house in the Canary Isles worth some £236,000. Between 1996 (when the Inland Revenue investigation was determined by settlement) and 1998 (when divorce proceedings began) Mr Cowan toyed with the idea of giving, but never actually gave Jeffrey, any further asset. We have been shown no material to suggest that there is or could be any moral obligation to afford further support. Further, if and so far as Mr Cowan may in future wish to give his brother, Jeffrey, further money or assets (as I accept that he might well, if for example Jeffrey fell on hard times), he will - even on an equal division of assets with Mrs Cowan - retain plenty of personal assets out of which to be generous. That point is reinforced, if the division of assets is not ultimately in equal shares. I therefore see no basis on which we would be justified in ordering a further hearing to go over essentially old ground on which the judge reached clear findings.

    (b) The relevant date at which to consider the parties' assets

    131. Mr Pointer submits that the court should look at the nature and extent of the assets in 1994 when the parties finally separated, or should at least take account of that separation and of the substantial subsequent increase in assets due, in particular, to the take-over of HD by Baco in 1997 and Baco's subsequent disposal in 2000. This increase was also, he submits, a result of Mr Cowan's business acuity. He further submits that at trial it was irrelevant and unnecessary to go into this aspect; Mr Cowan and his advisers were, on the then state of the law, justified in assuming that Mrs Cowan's claim could be effectively restricted by reference to her (reasonable) requirements. Only since White v White has the relevance of extra assets emerged, and the court should allow investigation of the time at which and reasons for which they emerged, by directing a further hearing.

    132. I start with Mr Pointer's basic submission that the date of separation represents a cut-off date. I am unable to agree with it. I note that s.25(2)(a) itself requires the court, when exercising its power to make among other things a property adjustment order, to have regard to, inter alia,

    ".... the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future ...." (emphasis added)

    133. Further, the date of the exercise of the court's power is not only accepted to be the traditional date but is, as it seems to me, also the natural date in a case such as the present. Here the parties have lived apart, either content or obliged to wait before any divorce. The bulk of the assets was in the meantime the husband's and under his control. He could do with it as he wished. She had no opportunity to use the assets or to increase them in the meanwhile. If the husband lost the monies, the wife would suffer. If he added to them, one might expect the wife to benefit.

    134. We were referred to reasoning of Coleridge J. in N v N (unrep'd; 28/01/01), where he thought that there was "intrinsically some merit .... in this particular case" in an argument that he should "take into account the huge increase in the value of the X group since the separation". But Coleridge J went on to say that he was quite sure that even now in most cases the date of the hearing was the correct date of valuation. It was only "where there has been a very significant change accounted for by more than just inflation or deflation" that he thought that "the court must have an eye to the valuation at the date of separation". The crux of his thinking appears in the next paragraph, where he said:

    "In this case the increase in value is attributable to extra investment of time, effort and money by the husband since separation and I do take into account the exceptionally steep increase in the turnover figures since the date of separation."

    135. What Coleridge J. was doing was not undertaking the whole valuation exercise at a different date from that prescribed, as I see it, by the statute as well as by tradition, but taking into account, as a potentially relevant factor, that it was only by virtue of the husband's extra work and money that the "huge increase" in value between separation and hearing had occurred. That links with the issue to which I have to return, to what extent, if any, is it now relevant to seek to evaluate the contribution made by either party to the overall wealth as at the date of the hearing. If this is relevant at all, then it may be that one party's special skill in accumulating assets will achieve some added weight as a factor if it occurs after separation, but before any divorce or financial hearing. This may be so, despite the countervailing consideration to which I have already adverted, which applies where such a party is in effect trading with and risking the wife's as yet unascertained part of the overall assets existing at separation.

    136. Assuming that the substantial increase in assets since 1994 may be relevant in this way, having regard to its origin in the husband's special skill, I still see no need or call for the remission to the judge which Mr Pointer invited. In my judgment, the court has sufficient information before it, as a result of the judgment and counsels' submissions, for it to undertake the broad assessment called for by the statute. In White v White Lord Nicholls referred to the need to avoid detailed and disproportionately expensive investigations in carrying out the statutory exercise: see pages 1584F-1585D.

    (c) Nature and Liquidity of assets

    137. Mr Pointer submits that the court should take account of the extent to which the husband's assets consisted of (a) the capitalisation of anticipated income and (b) illiquid assets.

    138. The capital sum of £1,190,000 included in the judge's calculations in respect of Mr Cowan's pension falls into both categories. It can only be taken as an annuity, and might (in case of early death) never be received. Mrs Cowan's assets, on the other hand, include a much smaller pension fund of £245,000, including £60,000 already vested. There is therefore a substantial difference between the parties' pension assets. Mr Cowan's entitlement represents, nonetheless, reasonably assured income while Mr Cowan lives, and its capital value takes into account the actuarial risk of his demise.

    139. Mr Cowan's continuing share interests in Hanmere (about £1.05 million) and Halcyon (about £400,000) may in some degree be instances of the latter. On the other hand, they are profitable, income-yielding share interests, they are run on a day-to-day basis by its long-standing managing director, Mr Vincent, and Mr Cowan has shown his ability to realise favourable disposals of such assets, in relation to HD. The shares in Inca, a property company, must on any view be readily disposable. Mr Pointer submits, nonetheless, that the ability to realise calls for further investigation. I accept that, in principle, the nature and liquidity of assets constitute relevant circumstances. In particular, I accept that we should bear in mind that Mr Cowan may wish at some stage to have (like Mrs Cowan) a larger property, in lieu of or in addition to his Hampstead flat, and that he may also wish to re-expand his business activity, rather than to contract it. But I cannot see these as factors of any great significance here - even if one does ultimately view this as a case for equal division of assets overall. Mr Cowan will on any view be very liquid indeed. Following the disposal of Baco and repayment of the loan notes, he has or will have some £6.8 million in cash, net after allowing for capital gains tax. He was due to receive nearly £500,000 from the sale of Flag Hill, in the Virgin Islands. His indebtedness amounted to no more than £750,000 (plus the mortgage of some £420,000 on his Hampstead flat).

    Fairness

    140. I come back therefore to the basic issue: what does fairness require in all the circumstances, by way of split of assets between these two parties? Starting with the particular circumstances to which s.25(2) requires the court to have regard, I have already identified the parties' property and other financial resources. Their income potential is either self-evident (as in the case of the cash received following the sale of the Baco interests and repayment of the loan notes) or demonstrated by past profitability (as in the case of the remaining share-holdings in Hanmere and Halcyon). Certain of the assets, such as Hadham Grange and the husband's less valuable property in Hampstead are not of course income producing.

    141. Mr Cowan is still evidently a capable and active business-man, capable in all likelihood of deploying his skill and remaining business assets to good effect. Mrs Cowan, on the other hand, while clearly a strong character able and willing to play a determined and active part in business in the early years, has devoted herself to her husband and family for so long now, that there can be no real prospect of her engaging in any further business activity, although no doubt she will invest such assets as she may acquire under this judgment.

    142. The 35 year duration of the marriage prior to separation (over 40 years, if one takes the date of divorce) makes this a marriage which might, in happier circumstances, have been described as a life-time's partnership. Its duration, the parties' ages and the factors mentioned in the last paragraph are at the root of Miss Baron's submission that the case calls for equality of treatment.

    143. The parties' financial needs, in order to maintain the life-style to which they have been accustomed, may be taken in the case of Mrs Cowan as around £3 million, in view of the way in which Singer J arrived at the figure he took for "reasonable requirements". The husband's needs were not separately evaluated, but it would seem fair to take them at no less, despite the fact that his Hampstead flat will probably involve less cost and maintenance than Hadham Grange.

    144. Earlier in this judgment, I have set out or summarised the judge's findings regarding the contributions which each party had made to the welfare of the family, including the contribution made (by Mrs Cowan in particular) by looking after the home and caring for the family. Mr Cowan's financial success contributed very substantially to the physical welfare of the family. The family lived well; and this is not a case where the pursuit or possession of wealth appears to have been harmful to the family as a whole or individually or to the quality of their family life.

    145. As to the foreseeable future, the children of the marriage are long grown-up, but the younger, Timothy, in particular has been receiving support from Mrs Cowan since ceasing to be employed in Hanlex, Mr Cowan's one unsuccessful venture (intended to pioneer the use of resealable plastic strips on polythene bags). Hanlex was closed down not long prior to the trial. Timothy was, with his family, then allowed use of Mrs Cowan's Florida flat and latterly to share Hadham Grange.

    146. Miss Baron submits that not only is Mrs Cowan in this context engaged in providing continuing support for a child of the marriage, but there is no reason why her natural wish to be able to give, or leave, money to her children in the future should not also be taken into account as a relevant circumstance. That such a wish (although not a "need" within paragraph (b)) may have relevance to the exercise under section 25, where overall assets far exceed any needs, is confirmed by Lord Nicholls' speech in White v White at page 1582H.

    147. I have identified the factual circumstances relevant under paragraphs (a) to (d) and (f) of s.25(2). For present purposes, although the events of the last years have evidently imposed stress on both, both parties may be treated as physically and mentally fit (cf paragraph (e)). There are no relevant circumstances within paragraphs (g) and (h).

    148. Against this factual background, I turn to the parties' respective submissions. Bearing in mind the length of the marriage, both parties' submissions in this case were concentrated magnetically (to take a word used by Thorpe LJ in this context in this court in White v White) upon the parties' "contributions" during the marriage. Miss Baron's main theme is that the only relevant question is whether each party had done "as much as he or she could" to contribute to the welfare of the family. If each had, then equality followed naturally. She emphasised Lord Nicholls' "one principle of universal application", namely that there could be no discrimination between the domestic and business spheres, in which Mrs Cowan and Mr Cowan, respectively, had here been principally active. Each sphere and contribution must be accorded full value. Since there was no suggestion that either had failed to do all he or she could have done, Mr and Mrs Cowan's contributions should be regarded as equal.

    149. During argument, she conceded that there might be cases where one particular party had made a "stellar" contribution to extraordinary wealth, meriting special consideration, but submitted that this was not such a case.

    150. Mr Pointer in contrast highlighted as relevant considerations the husband's entrepreneurial flair, technical knowledge and inventiveness and "exceptional" hard work, and their roles as the prime cause of accumulation of very great wealth.

    151. To the extent that the husband's skill and industry contributed directly to the welfare of the family, without harmful side-effects, this is certainly relevant under paragraph (f) of s.25(2). So too is the fact that Mrs Cowan throughout a long marriage did all she could (mainly though not exclusively on the domestic front) to contribute to the welfare of the family. I agree that these two contributions to the welfare of the family can well be regarded as balancing out. It is apposite to repeat what Lord Nicholls said at page 1578F:

    "If, in their different spheres, each contributed equally to the family, then in principle it matters not which of them earned the money and built up the assets. There should be no bias in favour of the money-earner and against the homemaker and the child-carer."

    152. The mere fact that the husband, by entrepreneurial flair, technical knowledge, inventiveness and exceptional hard work, has contributed to a higher standard of living than another less gifted or hard-working husband might have done does not seem to me to affect the position. The wife in a long marriage will, after all, have been accustomed to that standard of living, and will have helped organise and maintain it. Further, by devoting herself to domestic life, Mrs Cowan in the present case forewent the opportunity to develop her own business or income, of which the initiative she showed in early years (prior to and during her marriage) suggest that she may well have been capable.

    153. The problem presents itself in this case, as in White v White, that the assets accumulated considerably exceed the parties' needs. There, in rejecting any suggestion that the available assets (to which paragraph (a) requires attention) become immaterial once a wife's financial needs are satisfied, Lord Nicholls said:

    "Why ever should they? If a husband and wife by their joint efforts over many years, his directly in his business and hers indirectly at home, have built up a valuable business from scratch, why should the claimant wife be confined to the court's assessment of reasonable requirements, and the husband left with a much larger share? Or, to put the question differently, in such a case, where the assets exceed the financial needs of both parties, why should the surplus belong solely to the husband? On the facts of a particular case there may be a good reason why the wife should be confined to her needs and the husband left with the much larger balance. But the mere absence of financial need cannot, by itself, be a sufficient reason. If it were, discrimination would be creeping in by the back door. In these cases, it should be remembered, the claimant is usually the wife. Hence the importance of the check against the yardstick of equal division."

    154. This passage dealt, however, with a factual situation different from that actually present in White v White. It was primarily concerned to negate any suggestion that a wife whose contribution is domestic alone should be confined to her reasonable requirements or needs. When it came to the actual factual situation in White v White, Lord Nicholls identified as "a notable aspect of the equality of contribution" the fact that the husband and wife had a "business partnership" which "was a reality" (page 1576B). Miss Baron submitted to us that this statement was mere narrative, which Lord Nicholls did not later adopt. But it seems to me relevant to an understanding of the actual decision in White v White. In upholding the Court of Appeal's exercise of discretion, and in considering that it was legitimate to "increase Mrs White's award to an amount substantially in excess of her share of their joint assets", Lord Nicholls drew express attention at page 1585B to the fact that the Court of Appeal had had in mind (a) all the available assets, (b) Mr White's father's significant (monetary) contribution to the original farm purchase, (c) "Mrs White's dual role as business partner and as wife and mother" and (d) the overall goal of fairness. Lord Cooke at page 1588F also underlined that Mrs White "was an active partner in the farming business as well as meeting the responsibilities of wife and mother". The farm assets that Mr and Mrs White had acquired and developed were essentially the fruits of their joint efforts and collaboration assets, apart from the important initial contribution made by Mr White's father. The House of Lords did not regard it as appropriate to approach their division by taking or even starting with a technical analysis of their legal interests. It took a broad view of their co-operation and contributions.

    155. Here, although both cases concern the accumulation of surplus assets during a long marriage, the other circumstances are far removed from those in White v White. Mr and Mrs Cowan were not - save at the very outset and then only in relation to a primitive business - in business or in partnership together. Mr Cowan's special business skills, acumen and efforts have led him to accumulate a very large wealth. His legal ownership of position is not the starting point, any more than in a situation like White v White. But we do have to evaluate the relevance or relative significance of, on the one hand, Mr Cowan's special achievement and, on the other hand, the parties' long partnership in marriage. This, I must confess, I do not find easy. One must be cautious about any generalisations. The exercise of the discretion conferred under s.25 is highly fact specific. It may however be useful to consider some possible cases; all assume a long-term marriage, any children of which are grown-up and independent, a husband who works and a wife whose contribution to the family welfare has been domestic:

    (a) the husband's work may have produced sufficient (but no more than sufficient) assets to enable both parties, after divorce, to be housed and to continue to live in the manner to which they have become used;

    (b) the husband may, either by special skill and/or effort, have accumulated not only assets sufficient for, but wealth surplus to, the purpose indicated in (a);

    (c) the husband may, have accumulated assets surplus to that purpose, without any special skill or effort;

    (d) one or other party may have acquired assets before, and brought them into, the marriage or may, during the marriage, have acquired assets from a third party by inheritance, in which case such assets may themselves either (i) be required for that purpose or (ii) be, at least in part, surplus to that purpose.

    156. In case (a), I believe that there would commonly be little doubt but that the assets accumulated by the husband should be divided so as to enable both parties to continue to live as accustomed. That would have been of the essence of the old test of "reasonable requirements". Likewise, in case (d)(i), the consideration that property was acquired before marriage or that it was inherited during marriage, although a relevant factor, can "in the ordinary case .... be expected to carry little weight, if any, in a case where the claimant's financial needs cannot be met without recourse to this property": see per Lord Nicholls at page 1583H. That itself does not, necessarily, resolve the problem of distribution in a case where neither party's needs could be satisfied in full, having regard to all the available assets. Whether any preference might be given to the interests of the party bringing assets into the marriage or inheriting them during it would then require attention. But I would expect the joint or partnership aspect of marriage to remain at the forefront of the court's mind.

    157. Case (d)(ii) is potentially different, and the difference appears as the primary explanation of the House of Lords' decision to uphold the Court of Appeal's order in White v White: see per Lord Nicholls at page 1585B note also Lord Cooke at pages 1586F and 1588F-G. At page 1583E-G, Lord Nicholls expounded the relevant principles. He identified the distinction drawn in certain statutory (for example those of Scotland and New Zealand) between inherited property and property owned before marriage, on the one hand, and "matrimonial property" on the other hand, and said:

    "This distinction is a recognition of the view, widely but not universally held, that property owned by one spouse before the marriage, and inherited property whenever acquired, stand on a different footing from what may loosely be called matrimonial property. According to this view, on a breakdown of the marriage these two classes of property should not necessarily be treated in the same way. Property acquired before marriage and inherited property acquired during marriage come from a source wholly external to the marriage. In fairness, where this property still exists, the spouse to whom it was given should be allowed to keep it. Conversely, the other spouse has a weaker claim to such property than he or she may have regarding matrimonial property.

    Plainly, when present, this factor is one of the circumstances of the case. ...."

    158. This brings me to cases (b) and (c), and to the central issue in a case such as the present. How should property acquired by the efforts of a long-term marriage partner be allocated in the event of the marriage breaking down? In some cases, the accumulation of assets surplus to needs may be the result of special skill and/or effort. In other cases, surplus assets may result without special skill or effort. Some positions are just highly remunerated; and even unsuccessful executives may sometimes receive substantial handshakes. There are of course other cases where even special skill and effort is not especially well remunerated; in those cases however one is back within case (a).

    159. What value should be put on either the accumulation of assets by itself - case (c)? Or its accumulation as a result of the exercise of special skill and effort - case (b)? Where there is no special skill and effort, and where the parties have divided their activities and responsibilities between the domestic and work fronts, it seems to me that the mere accumulation of assets by the husband in the course of his work may quite readily be viewed as a development that should be regarded as being for the joint benefit. The wife has after all done all she could on the domestic front and will herself have foregone the opportunity of producing equivalent assets, as she might ex hypothesis have done if no special skill or effort was required.

    160. Even this, like any simple generalisation, must be viewed with caution in any individual case. There are many perplexing situations that may one day require examination. What, for example, of the individual spouse who each week invests a small part of his or her spare cash in the National Lottery, and one day wins £1 million, or £10 million? Should this asset be viewed like any sudden accretion to the value of the joint home or other matrimonial investment, due to market movements? Or might it, in some circumstances at least, be more analogous to property brought into a marriage or inherited property? Would it for example make any difference, if the other spouse was opposed to all gaming as a waste of money, or if the very limited money expended came from inherited property? There appears to have been a quite extensive jurisprudence in this area in Australia, including Zyk v Zyk (1995) FLC 92-644 (referred to in Lynch v Lynch (Appeals Nos. NA 7 and 15 of 2000) (Full Court of the Family Court of Australia; judgment dated 26th October 2000), cited to us). In the circumstances there, a husband's lottery win was equated with a contribution by the husband to the joint assets, and the final award, based on the spouses' respective contributions, was tailored accordingly. I mention Zyk v Zyk not to suggest that the same approach to or use of contributions would necessarily apply under the English statute - but simply to illustrate some of the problems and considerations that may one day need to be addressed in this jurisdiction.

    161. The exercise of special skill and effort raises yet further and different considerations. I start by recording my conviction that there is no sensible basis for restricting consideration to cases of "stellar contribution", as Miss Baron submitted. Ultimately, there is probably one continuous spectrum, extending from the entirely ordinary to the "stellar". For convenience, it is useful to speak of any acquisition of wealth that is achieved by more than ordinary skill and effort as "special", and I would certainly wish to discourage over-refined analysis of the precise extent to which skill and effort may have been "special". The underlying idea is that a spouse exercising special skill and care has gone beyond what would ordinarily be expected and beyond what the other spouse could ordinarily have hoped to do for himself or herself, had the parties arranged their family lives and activities differently. The first spouse's special skill and effort is special to him or her, and the individual's right to the fruits of an inherent quality of this nature survives as a material consideration despite the partnership or pooling aspect of marriage. For my part, I think that this consideration is a material one to which weight can and should be given in appropriate cases.

    162. As with property acquired before marriage or by inheritance, I accept that the topic is probably one on which opinions may differ. Miss Baron submits that, to give weight to special skill or efforts would run contrary to the thrust of the House of Lords reasoning in White v White. I do not consider this to be so - and, if stellar contributions are relevant (as Miss Baron would concede) I have already said that I cannot see any sensible basis for excluding lesser, but still extra-ordinary or special contributions. The House of Lords in White v White was concerned to negate any suggestion that a wife who made a domestic contribution should be confined to her "requirements", reasonable or other. It did not decide that equality is the test. It emphasised that equality is a simple tool or check, to be deployed after undertaking the statutory exercise in order to test its result. Nor did the House of Lords decide that inequality of contributions, either to the family welfare or in the acquisition of assets, could have no effect on the ultimate division of assets. Such a rule would itself ignore the language of, in particular, paragraph (f) in s.25(2). The House of Lords' own decision further demonstrates the potential relevance of special factors such as property acquired before the marriage and property inherited.

    163. Miss Baron also referred us to article 7 of Protocol 7 to the European Convention on Human Rights, which provides:

    "Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, and in the event of its dissolution. This Article shall not prevent states from taking such measures as are necessary in the interests of children."

    164. She urged that this pointed towards equality in the division of property on divorce. The same argument was advanced in the Appellant's Case which we have seen to the House of Lords in White v White. It received no mention in the judgment. That does not seem to me surprising, for at least the following reasons which I set out to avoid the repetition of the argument elsewhere. First, the Protocol has not (yet at least) even been ratified by the United Kingdom, let alone incorporated into English law. Second, a government's statement (as long ago as 24th October 1997) that it proposed to ratify subject to first amending English law in respects not presently material cannot show that the government believed that English matrimonial law accepted a principle of equal division of assets on divorce. It clearly did not in 1997 (and still does not under White v White). Thirdly, I think it unlikely that article 5 of Protocol 7 embraces property and its division on divorce at all; elsewhere in the Convention and its Protocols, property is squarely addressed (cf e.g. article 1 of Protocol 1, as amended). But, even if this be wrong, a provision requiring "equality of rights and responsibilities of a private law character" in the event of dissolution of a marriage is not the same as a provision prescribing equal division of all assets however acquired, or even of all assets acquired during the marriage. The article could represent no more, at most, than a vague, general aspiration towards "equal" or "fair" treatment, with which White v White would be entirely consistent. Fourthly and finally, we must in any event take English law as stated in White v White.

    165. I am, on the other hand, comforted in my views as to relevance of any special contribution that either spouse may have made to the family's welfare or to the acquisition of assets, by reading the decision of the Full Court of the Family Court of Australia in Lynch v Lynch (Appeals Nos. NA 7 and 15 of 2000) (judgment dated 26th October 2000). The statutory regime there applicable was contained in ss.75 and 79 of the Family Law Act 1975 (as amended), which enabled the court to make an order altering property interests if satisfied that, in all the circumstances, it was just and equitable so to do, as well as specifying numerous relevant considerations. I do not think that the relevance of the reasoning is affected by the different and differently worded enumeration of such specific considerations in the Australian statute. As with the English Act, the Australian Act did not indicate the relative weight to be given to different circumstances or how any conflict between opposing considerations should be resolved. The Court cited previous authority (particularly the High Court decision in Mallett v Mallett (1984) 156 CLR 605) in which the difficulty of comparing the fundamentally different activities of breadwinner and homemaker had been identified, together with the risk of undervaluing the role of the homemaker. In Mallett the High Court had gone on to recognise that examination of the performance of both roles might in particular cases demonstrate the carrying out of responsibilities beyond the norm - in the case of a homemaker "as, for example, where homemaker has the responsibility for the home and children for long periods or cases such as the care of a handicapped or special needs child"; or, in the case of a breadwinner, by way of "an outstanding application of time and energy to producing income and the application of what some of the cases have referred to as 'special skills'". The High Court went on to observe: "Within either role there may be cases where the evidence demonstrates a neglect of those responsibilities or a wasting of income or assets. This last aspect is however to be distinguished from any investigation of fault or misconduct".

    166. For my part, I would not wish attempts at detailed examination and invidious comparison of the respective contributions of spouses on the different domestic and business fronts to become commonplace. Even where there is a surplus, any consideration of contributions should be undertaken on a broad basis with the aim of seeing if there was something really special about the skill or effort devoted by either spouse during the marriage. However, I would agree with the Full Court's further conclusions that the determination that a party has made a special contribution "is not necessarily dependant upon the size of the asset pool or the "financial product" achieved by the parties" (paragraph 124), that there are cases "where a "special" contribution may not necessarily result in assets to a value of millions of dollars but which ought nevertheless to be recognised" and that "'special', 'extra' or 'extraordinary' contributions made in the role of homemaker and parent or to the welfare of the family ought to be accorded the same recognition" (paragraph 126).

    167. Later in its judgment, at paragraphs 129-130 and 134-138, the Full Court squarely addressed the proposition (cited from the first instance decision in Waters and Jurek (1995) FLC 92-635) that "Homemaker contributions are to be given as much weight as those of the primary breadwinner". It approved the statement of Gibbs CJ in Mallett at 79,120 that any assumption of equality:

    "obscures the need to make an evaluation of the respective contributions of the husband and wife by arbitrarily equating the direct financial contribution of one to the indirect contribution of the other homemaker and parent".

    168. It spoke of a tension between the concepts of recognising "special factors" and of standardising contribution, and approved statements in an extrajudicial paper by Guest J. of 1999 to the effect that the statute required such an evaluation and that a contrary view imposes "a moral duty to share equally regardless of contribution", because of the fact of marriage, denying or at least minimising "the role of exceptional skill and intelligence in the production of wealth" and failing to "validate a recognition of an individual's right to the value of his or her innate skill and intelligence".

    169. My only reservation about these passages would be, to repeat, that they should not encourage attempts at detailed examination and invidious comparison of the respective contributions of spouses on the domestic and business fronts to become commonplace in this jurisdiction. Only where there are special or exceptional circumstances affecting the contribution made on either side should the court be ready to make the comparison, and even then only on a broad basis. But, if and when it is concluded that one spouse has made an exceptional contribution, then the court can and should be prepared to consider its impact on the appropriate order.

    Application of principles

    170. Here, on the judge's findings, it is clear that Mr Cowan's accumulation of wealth over and above any required for the family's needs or to maintain Mr and Mrs Cowan's accustomed standard of living was due to his exercise of special or exceptional skill and efforts. In my view this calls for recognition, when considering what division of assets is appropriate. Although neither party's "reasonable requirements" are any longer part of any test, it seems to me of some interest (at least in this case, where the judge has undertaken the exercise) to bear in mind the rough proportion of the total assets that will be required to maintain their accustomed standard of living. The judge's judgment meant that Mrs Cowan had in total some £3.2 million. Allowing Mr Cowan an equivalent amount, there are surplus assets in excess of £5.1 million. The larger part of any surplus should in my judgment remain with Mr Cowan, by whose exceptional skill and efforts it was earned. Mrs Cowan has some claim on it, by virtue of (a) the long marriage and (b) as a lesser, though not insignificant factor, her wish to have substantial excess assets which she can then take steps to ensure will go to her sons. I would consider it fair, in all the circumstances, to allocate approaching a quarter of this surplus to Mrs Cowan. On this basis, I would increase the sum of £1,775,000 that Singer J. ordered to be paid to £3,000,000. The net effect will be that Mrs Cowan will have (taking into account the value of Hadham Grange and her pension) about £4.4 million, while Mr Cowan will have assets totalling over £7.1 million. In all the circumstances, that broad division also appears to me fair. I would allow the appeal accordingly.

    171. Since writing the first draft of this judgment, I have read with great interest and admiration the judgment of Thorpe LJ which analyses the decision in White v White in a way with which I agree, and looks at the wider picture and the possibility of legislative intervention in terms which clearly merit the closest attention, whether by the Law Commission or by others.

    ORDER: Appeal allowed with costs; permission to appeal to the House of Lords refused.

    (Order does not form part of approved Judgment)

Judgment, published: 14/05/2001

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