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(Family Division; Singer J; 17 March 2009)
Following a relatively short marriage, involving cohabitation for over 7 years, with one child, the couple separated and the wife sought ancillary relief. The wife had no real earning capacity; the husband was a broker with a complicated remuneration package, including two employee benefit trusts from which the husband was entitled to borrow, but which had an overall positive balance. The husband was ordered to pay the wife maintenance pending suit of £7,500 pm; it later emerged that he had concealed changes in his remuneration arrangements following the separation, in particular the creation of investment funds into which certain discretionary bonuses were to be paid, with the aim of ensuring that the wife should not share in any wealth acquired post-separation. It also emerged that the wife had been reluctant to disclose certain information, including the fact that by the hearing she was pregnant with another man's child.
The approach that must be taken in this case was to attempt to evaluate the available assets as at the date of the hearing, and then to consider their nature and provenance. If they derived from pre-marriage acquisition or gift, or from intra-marriage gift or inheritance, then, subject to needs requirements, fairness might dictate that they be left wholly or partially out of the dividing exercise. A discretionary exercise must also be applied to the question when the clock was to stop in a case in which one spouse continued to accrue savings or wealth from earnings or elsewhere after the marriage. The couple were to share the capital assets equally, leaving both parties with assets worth a little over £1 million. The surplus value of the two employee benefit trusts was also to be shared equally, and the wife was to receive just under £120,000 in respect of this. However, it would not be fair to require the husband to share the value of the investment fund that contained discretionary bonuses earned more than 12 months after the couple finally separated. Given that the husband's income had been considerably larger than that disclosed at the time that maintenance pending suit had been set, there would be a retrospective variation of maintenance pending suit; the wife was to receive an additional £70,000 in respect of this. Taking into account the Court of Appeal authorities stating that cohabitation was not to be equated with marriage, this was not a case for a clean break; the wife would not be able to adjust without undue hardship to the termination of her financial dependence on the husband within a foreseeably definable term. The husband was to pay maintenance to the wife of £125,000 pa; although the wife's annual budget figure had been only £104,400, needs were not the only or the strict test. This maintenance award would result in a net income for the wife of about £100,000 pa.
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