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FINANCIAL REMEDIES: B v S (Financial Remedy: Marital Property Regime) [2012] EWHC 265 (Fam)

Date:16 MAR 2012

(Family Division; Mostyn J; 17 February 2012)

A 14-year marriage, two children aged 10 and 12. Alleged agreement between the parties that they had adopted a matrimonial property regime of separate property that was made when they married in Catalonia. Further express separation of property agreement made in another country. Neither party were aware of full implications of agreement or default matrimonial regime under which they married, disregarded in assessment of award. Summary of Catalan law led the judge to a conclusion that the court may depart from the default position where it would be unjust to implement it and likely to be so when economic imbalance exists between the parties . In considering the applicable principles relevant to capital division, it was held that the principles of sharing and need are likely to be the most applicable and compensation was restricted to exceptional cases as exemplified in McFarlane v McFarlane .

The law relating to an award of periodical payments was not so clear. Simplicity and clarity are needed in this area just as much in the field of capital division. Save in the exceptional kind of case exemplified by McFarlane, a periodical payments claim should, the judge held, be adjudged (or settled), generally speaking, by reference to the principle of need alone. The husband's company was worth £6m, equal division, £3m payable to wife in three instalments. Periodical payments of £10,000pm, falling incrementally until lump sum payment completed.