FINANCIAL PROVISION: R v R [2006] FLR (forthcoming)

26 JUN 2006

(Family Division; Nicholas Mostyn QC; 26 June 2006)

The husband brought ancillary relief proceedings against the wife over 10 years after the wife had obtained a divorce. He explained the delay in terms of his arrest and 7-year detention in India in connection with charges which were not made out. The wife and her son ran a business together, which the husband claimed had been a joint venture between husband and wife both before and after the divorce.

A primary function of the court now was to identify matrimonial and non-matrimonial property. The longer the marriage, the more likely non-matrimonial property would become merged or entangled with matrimonial property. Assets acquired or created by one party after (or during a period of) separation might qualify as non-matrimonial property if it could be said that the property in question was acquired or created by a party by virtue of his personal industry and not by use of an asset created during the marriage and in respect of which the other party could validly assert an unascertained share. A post-separation bonus probably ought not to be classed as non-matrimonial unless it related to a period which commenced at least 12 months after the separation. In deciding whether a non-matrimonial post-separation accrual should be shared and, if so, in what proportions, the court would consider, among other things, whether the applicant had proceeded diligently with the claim, whether the party who had the benefit of the accrual had treated the other party fairly during the period of separation; and whether the money-making party had the prospect of making further gains or earnings after the division of the assets and, if so, whether the other party would be sharing in such future income or gains and if so in what proportions, for what period, and by what means. Generally speaking, it would be very difficult for a party to be allowed successfully to prosecute an ancillary relief claim initiated more than 6 years after the date of the petition for divorce unless there was a very good reason for the delay. On the facts, the husband had never been a partner in the wife's business.

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