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Family Law

The leading authority on all aspects of family law

30 JUL 2010

Post Separation Enhancement: B v B - Family Law journal

ASHLEY MURRAY, Barrister, Oriel Chambers, Liverpool

There remain a number of areas in ancillary relief law which require better clarification and not least of these is the appropriate treatment of post separation resources and to what extent, if at all, it is fair to bring those resources into the s 25 assessments. The present position is the result of seven cases in which the approach to such resources have been treated differently to date, namely Rossi v Rossi [2006] EWHC 1482 (Fam), [2007] 1 FLR 790, S v S (Ancillary Relief After Lengthy Separation) [2006] EWHC 2339 (Fam), [2007] 1 FLR 2120, H v H [2007] EWHC 459 (Fam), [2007] 2 FLR 548, P v P [2007] EWHC 2877, [2008] 2 FLR 1135, H v H [2008] EWHC 935 (Fam), [2008] 2 FLR 2092, CR v CR [2007] EWHC 3206 (Fam), [2008] 1 FLR 323 and H v H [2009] EWHC 494 (Fam), [2009] 2 FLR 795.

In Rossi, as part endorsed by Singer J in S v S, Nicholas Mostyn QC, sitting as a Deputy High Court judge (as he then was) suggested a 12 month period after separation in respect of bonus payments as a mantra for what would be ‘readily shared' and what would not. In H v H Charles J maintained that such a fixed or formulaic approach was contrary to the principle of s 25. In P v P Moylan J, and in H v H ([2007]) Charles J, both applied the broad judicial discretion and in CR v CR Bodey J, while agreeing with Charles J, considered that there should not be any distinction drawn between resources gained post separation to the date of trial if there had merely been ‘a continuum' of financial receipt similar to that which had been gained during the parties' relationship together. These cases have all avoided any approach other than to emphasise the ‘fact sensitive' nature of the decision made and are themselves the subject of extensive review and explanation by Charles J in the more recent decision of J v J [2009] EWHC 2654 (Fam), [2010] 2 FLR (forthcoming).

To read the rest of this article, see August [2010] Family Law journal (link for online subscribers who have logged in). To log on to Family Law journal Online or to request a free trial click here.

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