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Date:18 SEP 2009

(Court of Appeal; Thorpe, Smith and Patten LJJ; 18 September 2009)

The husband and wife were both American; the relationship began in the USA, but the wife followed the husband when the husband's job required him to move to Europe. The couple were married in Ireland, and later lived in England. After 7 ? years of marriage, not long after the husband was made unemployed, the couple separated; both were about 40 years old.

In the ancillary relief proceedings the judge decided that the wife should receive 65% of the assets. In making the actual award, the judge took into account a deferred compensation payment scheme, even though it had been recorded as not a liquid fund, and used the wife's schedule of assets, which had been before the court to support the wife's argument that the husband had wasted £2 million of family money. The husband appealed. The monetary terms in which the judge had expressed the 65/35 division of assets had been incorrect. The judge should not simply have adopted the wife's schedule including the necessary calculations: the husband had not, as alleged by the judge, been vague in giving his evidence; the husband's final affidavit had been extremely clear about the limited nature of the value of the deferred compensation scheme. The wife should have cross-examined the husband on this point if she had wished to challenge his evidence; the wife's schedules were inconsistent with the evidence. The attributed value of the deferred compensation payment scheme would be taken out of the calculation of their respective shares. On the facts the husband had not wasted assets as alleged by the wife.

The judge had overstated the importance of the wife's needs, given that this had been an 8-year childless marriage and that both had a chance for a fresh start. However, the judge had been entitled to reject equality of division given the future earning capacity of both parties, and the desirability of a clean break.