S v S (Divorce: Distribution of Assets) [2006] EWHC 2793, [2006] All ER (D) 137 (Nov)
Following White v White [2001] 1 All ER 1 and Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 3 All ER 1, a number of factors can be identified which may constitute good reason for moving away from, or back towards, the ‘yardstick of equality’ eg:
(i) What the matrimonial assets are—assets
deriving from a source prior or external to the marriage should be kept apart in considering the division of assets between spouses;
(ii) Contribution (financial or non-financial)—this issue may overlap with (i) if one party is the sole or main source of the assets. In considering this issue, the duration of the marriage may play a part;
(iii) Conduct—which only exceptionally impacts upon the division of property;
(iv) Compensation for relationship-generated disadvantage, on the basis that the economic disadvantage generated by the relationship may go beyond need;
(v) Need—if there is non-matrimonial property, but the matrimonial property is inadequate to provide for the needs of the payee, that is a ground for ‘dequarantining’ the non-matrimonial property, which becomes available for general distribution. Moreover, addressing need is a necessary check to ensure that enough is given to the payee, or left with the payer, to enable each of them to live and meet their obligations. The court has to consider:
(a) What are and are likely to be the living expenses and obligations of the parties, particularly of the payee?
(b) What is the earning capacity of the payee and of the payer—including consideration of their ages?
(c) Is the likely expenditure to be capitalised on a lifelong basis, in accordance with the Duxbury tables—Duxbury v Duxbury [1987] 1 FLR 7—whether as modified eg to allow for sale of the matrimonial home and thus the release of additional capital at a given future point, or otherwise, or on the basis of some shorter duration?
(d) Is the applicant to be enabled to stay in the matrimonial home?
The answers to any or all of these issues may constitute a good reason for a move away from or towards equality. In some cases, the shortness of the marriage may be a self-standing reason for reducing a payee’s entitlement.
