Tuesday, December 11, 2012

Davies v Davies: Contribution and inherited assets

Lord Justice Thorpe, again
A summary of Davies v Davies [2012] EWCA Civ 1641.

The case deals with the issues of contribution and inherited assets, although I'm not sure it takes the jurisprudence on either very much further.

Briefly, the case concerned the husband's application for permission to appeal against a lump sum order. In addition to the matrimonial home, the wife had been awarded £2.2 million. The husband contended that she should have received £1.5 million.

The husband is the owner of a successful hotel, which he inherited from his father in 1997/98. At the time the three houses in which the hotel business traded were jointly owned between the husband and his two sisters, but he subsequently bought them out. The husband's principal case was that the wife was no more than a receptionist who had been employed intermittently in his business during the years of co-habitation and marriage. His alternative case was that the assets available to satisfy the wife's needs hardly extended to the hotel business which came to him from earlier generations and was not the product of any shared endeavour. The wife's case was that the status of the hotel had risen almost dramatically as a result of her energy, enterprise and marketing skills.

At trial, the judge preferred the wife's evidence, and found that she made a very high contribution to the success of the business, at least as much if not greater than the husband's. He also found that at the commencement of the relationship the value of the business (excluding the properties) was effectively nil - the husband contended that the business had a substantial value when it was transferred to him.

The wife conceded at trial that one third of all the assets, including the matrimonial assets, should be excluded from the pot available for distribution. The husband contended that the judge should have identified the value of the "inherited" assets, ring fenced them and removed them from the tally of assets properly available for division.

Giving the leading judgment in the Court of Appeal, Lord Justice Thorpe concluded that the judge did fall into error in accepting that the business itself was of no value at the date the husband's acquisition. However, he was not persuaded that the result ultimately ordered by the judge was 'infected' by that error.

On the contrary, he was impressed by the argument on behalf of the wife that had the judge not acted upon her concession, his award might well have exceeded £2.2 million. He continued:
"Cross checking for fairness, the effect of the order was to give the wife approximately one third and the husband approximately two thirds of the total available assets. Such a percentage fairly reflected the derivation of the hotel and its trade. Given the resounding nature of the judge's findings in the wife's favour anything less than a third would have been plainly unfair."
In the circumstances, he granted permission but dismissed the resulting appeal.

Lord Justice Elias ("the wife's concession secured the husband a greater portion of the matrimonial assets than he ought to have received on the sharing principle, and in rough and ready terms this secured a fair and equitable outcome") and Lord Justice Rimer gave consenting judgments.

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