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(Family Division; Charles J; 26 February 2007)
Although there were strong arguments in favour of a clean break in the case, and both parties had been seeking a clean break order, neither of the party's suggestions could with confidence be said to lead to a fair result, and no alternative had been identified on the basis of the information before the court. Notwithstanding the differences between divorcing parties and the desirability of a clean break, in cases involving private companies the commercial reality might often be that a particular commercial/company solution would promote a result fairer than a clean break based on valuations. Parties and their advisers urging a clean break by reference to valuations of a private company as their primary case would generally, if not always, owe a duty (and in any event would be well advised) to consider commercial alternatives. This was particularly the case when there was, or was likely to be, a significant dispute or a significant uncertainty or a wide bracket on valuation and/or the ability to raise and pay a capital sum without unduly jeopardising or burdening the business or the paying party. Those involved in ancillary relief cases involving private companies ought not to confine themselves to an approach based solely on valuation and liquidity but ought to investigate and consider commercial alternatives and periodical payments. It should be practical for this to be done without undue expense, provided there was co-operation, and the correct questions were formulated. If the family law specialists instructed did not have the relevant expertise to identify such issues (or to ensure that they had been identified by the accountants) there were a number of lawyers who did; the advice of such lawyers was not sought regularly enough in ancillary relief proceedings.
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