Special Financial contribution argument very hard to make out
It has always been more difficult than many think to justify a ring fencing of assets because one party asserts greater contribution to the acquisition of those assets. It is often a waste of time and effort even to bother with the argument but in very big money cases the outside chance of success carries such a pay off that the arguments are still run. The judges can warn against this until they are blue in the face but in a £300 million case even a 5% disparity is worth a very large legal bill so remains worth the risk
In the case of DR v UG [2023] the High Court has again hammered the nail home.
The parties' assets totalled £284 million. The husband (H) and wife (W) were born in Denmark, married in 2004 and had three children. H worked in a biotech company and in 2017, led a management buy-out of part of the business, a company manufacturing a medical product based in England (A Co). Assisted by borrowing against the family home, H raised £310,000 and acquired a 70% shareholding in the business.
The family moved to England and, as CEO, H successfully managed A Co, increasing its value to £41 million by 2018. The parties separated in 2019. In 2020, W issued divorce and financial remedy proceedings. Following Children Act 1989 proceedings, W and the children relocated to Denmark. H started working part-time and stepped down as CEO, suffering mental health difficulties. In 2021, A Co started selling its product for specialised therapies and its value increased further to over £200 million. It then nearly collapsed due to repeated failures of product batches, but once the problems were resolved, in 2022, A Co was sold. H received £280 million for his shares.
H offered W a lump sum of £83 million, citing his special contribution to the marriage. He also argued his shareholding was worth £33 million when the parties separated and its subsequent increase in value was due to a new venture post-separation: selling the product for specialised therapies. W argued the assets should be divided equally.
Moor J awarded W half the assets, rejecting H's arguments:
• Special contribution: H was a good businessman, but his work was not ''wholly exceptional''. The required disparity in the parties' contributions was not established, and although H had generated significant wealth, it was not such that it deserved special treatment.
• Post-separation endeavour: the family's wealth was partly due to risking W's undivided share of the matrimonial assets, and the business nearly failed during the proceedings. H had not created new assets post-separation and his workload decreased after the parties separated.
The judgment summarised circumstances that may justify a finding of post-separation endeavour but such circumstances did not apply in this case. These circumstances include new assets created post-separation, unjustified and lengthy delays in starting proceedings, cases where there is more to do post-trial to realise an asset, cases where the payer continues working in the business, and cases where the payee has been bought out.
(With thanks to PLC for the case summary)
So if this argument doesn’t work in a £300 million High Court case it won’t work in everyday life in the rest of the country. Parties will be better to focus on a division of assets they can each live with make the best offer they can, save two years of court time and get on with their lives.
Ian Stirzaker
Ian is the Senior Partner, and Head of Family Law at SME Solicitors. Please contact him, Joanna Gardner or Denise McCabe for specialist help and advice in all aspects of family law at ian.stirzaker@smesolicitors.co.uk or joanna.gardner@smesolicitors.co.uk or denise.mccabe@smesolicitors.co.uk
Added: 19 May 2023 12:35
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