Wight v Wight

• Jurisdiction: Cayman Islands
• Judge: (Levers, J.)
• Judgment Date: 23 November 2005
• Court: Grand Court (Cayman Islands)
• Date: 23 November 2005

Grand Court

(Levers, J.)

WIGHT

and

WIGHT

N. Mostyn, Q.C., M.J. Bradley and D. McGrath for the petitioner;

B. Singleton, Q.C., D. Eaton and S. Merren for the respondent.

Cases cited:

(1) F v. F (Duxbury Calculation: Rate of Return), [1996] 1 FLR 833, referred to.

(2) G v. G (Financial Provision: Equal Division), [2002] 2 FLR 1143; [2002] EWHC 1339 (Fam.), considered.

(3) GW v. RW, [2003] 2 F.C.R. 289; [2003] 2 FLR 108; [2003] EWHC 611 (Fam.), followed.

(4) H v. H (Financial Provision: Special Contributions), [2002] 2 FLR 1021, considered.

(5) H-J v. H-J, [2002] 1 FLR 415, considered.

(6) Lambert v. Lambert, [2003] FLR 139; [2002] EWCA (Civ.) 1685, considered.

(7) Livesey v. Jenkins, [1985] A.C. 424; [1985] 1 All E.R. 106, considered.

(8) McFarlane v. McFarlane, [2004] 2 F.C.R. 657; [2004] 2 FLR 893; [2004] EWCA (Civ.) 872, followed.

(9) Minton v. Minton, ELR[1979] A.C. 593; [1979] 1 All E.R. 79, considered.

(10) Sorrell v. Sorrell, [2005] EWHC 1717 (Fam.), followed.

(11) Uzzell v. Uzzell, 2001 CILR N[12], applied.

(12) Wells v. Wells, [2002] 2 FLR 97; [2002] EWCA (Civ.) 476, followed.

(13) White v. White, [2001] 1 A.C. 596; [2001] 1 All E.R. 1; [2000] 2 FLR 981; [2000] 3 F.C.R. 555, followed.

Legislation construed:

Matrimonial Causes Law (2005 Revision), s.19: The relevant terms of this section are set out at para. 20.

s.21: The relevant terms of this section are set out at para. 21.

Family Law-financial provision-disclosure of assets-full disclosure of assets necessary (unless limited by confidentiality, etc.) for court to exercise discretion in distribution-court required by Matrimonial Causes Law, s.19 to have regard to all available assets

Family Law-financial provision-assets available for distribution-treating marriage as equal partnership means that all assets brought into marriage and acquired during marriage, without discriminating between nature of parties” contributions (financial or otherwise), treated as matrimonial property available for distribution

Family Law-financial provision-equality-after providing for needs, equal distribution of remaining assets usually fair solution irrespective of parties” financial contributions-equal division may be disturbed if special financial contribution by one party-yardstick of equality to be applied as final test of fairness

The petitioner applied for financial provision in divorce proceedings in respect of herself and the minor child of the marriage.

The parties had been married for 22 years, during which time they had four children, the three eldest now being over 16. The husband had enjoyed an increasingly successful career as an accountant from the time he moved to the Cayman Islands in 1973, starting as an articled clerk and progressing with increasing responsibility until at the time of the present proceedings he was one of the most successful accountants in the Islands and managing partner of Deloitte & Touche, one of the largest international firms. The wife had worked as a secretary until 1995, when she left employment in order to take care of their properties, visit the children at school abroad, and run the household, a task in which she was aided by staff including a live-in nanny, maid service, gardeners and consultants. They had by this time acquired over US$20m. of assets between them, including several homes in the Cayman Islands and abroad, cars, boats, racehorses, bank accounts, property developments, pensions, shares and investment portfolios. The marriage broke down suddenly in 2002 when the husband admitted he was having an affair and wanted a divorce. He moved out of the matrimonial home the next day, and one month later moved out of the complex altogether. The wife continued to live in the

matrimonial home. She petitioned for divorce and sought financial provision. It was agreed that they would have joint custody of the 13-year-old daughter, who was at boarding school in the United Kingdom, with the mother having care and control.

The wife submitted that (a) the husband had failed to disclose information relating to his personal income and the value of his shares in Deloitte & Touche, even to the limited extent required by the disclosure order she had obtained earlier in a ruling (reported at 2004–05 CILR 554), which the court needed to know in order to calculate the value of the matrimonial property available for division; (b) matrimonial property should include the land the husband had owned before the marriage, as it had become joint property at the time of the marriage; (c) all assets purchased during the marriage and any income arising from them should be matrimonial, including land he had purchased during the marriage which remained undeveloped; (d) the items which he had purchased after their separation, including apartments and two sports cars, were matrimonial assets as they were purchased with the income from matrimonial property or from his personal income, in which she was entitled to share; (e) the husband had not been a successful accountant before the marriage, and had only become one because of the support which she had provided during the marriage by maintaining their home, taking care of the children, and managing their other properties and staff, enabling him to focus on his career, and therefore his expected income after divorce and the value of all his pensions should be taken into account when making her award; (f) she should be entitled to at least 50% of the matrimonial assets remaining after the allocation of living costs for all relevant parties, as she had contributed financially to the marriage in the early stages when it was necessary for her to do so, and had later contributed as much to the marriage in her domestic role as he had in his financial one; and (g) the husband had not made a special contribution to the marriage through hard work and skill, but rather had been lucky that a substantial international liquidation had arisen at the right time to launch his career.

The husband submitted in reply that (a) he had complied with the disclosure order, albeit slowly, and in any case since the wife was the joint owner of most of the assets about which she accused him of failing to provide information, she was capable of making those enquiries herself; (b) the land he owned before the marriage should remain his entirely, because the wife had not contributed to its acquisition; (c) whilst he conceded the undeveloped land he purchased during the marriage was matrimonial property, further investment he later made to make it profitable would be from his own funds so he alone should be entitled to any profits; (d) the assets he had purchased after their separation were bought with his personal income acquired post-separation, when the marriage had effectively ended, and so should be viewed as non-matrimonial; (e) since he had been a successful accountant prior to the marriage, his continued success was the result of his professional ability

and not to his wife”s support, and therefore his income after separation should be his alone; (f) his occupational pension was dependent on 10 years” payments, and since only one of those years had been prior to the separation, that pension should be treated as non-matrimonial; (g) the wife had unjustifiably inflated her needs and those of their daughter in order to take a greater share out of the assets before the surplus was divided; (h) his financial contribution to the marriage was an outstanding one, not merely what would be expected of a good husband, and this special contribution he had made to the financial well-being of the family deserved recognition by the award of a higher percentage of the remaining assets once the parties” needs were satisfied; and (i) certain of his assets were illiquid or risky ventures and so should be discounted.

Held, making the following financial provision:

(1) Full and frank disclosure of all matrimonial property was necessary for the court to exercise its discretion as to the distribution, as it was required by s.19 of the Matrimonial Causes Law to have regard to all available assets before deciding on a fair distribution. In this case the disclosure that was required was limited to that specified in the disclosure order, weighing the value of disclosure against the potential damage to the husband”s firm caused by revelations as to its financial status. The husband”s delay in complying with this order did not, however, count against him as he had gradually made fuller disclosure and in any case the wife was joint owner of most of the property and therefore capable of making enquiries as to its value for herself (para. 20; paras. 44–45).

(2) In deciding which of the assets were matrimonial property available for distribution, the court recognized the marriage as an equal partnership, and therefore treated all assets brought into the marriage (including the husband”s land) and all those obtained during the marriage as matrimonial property regardless of any disparity in the levels of contribution. The cut-off date up to which property would be treated as matrimonial was the date of separation, and items the husband purchased later which could reasonably have been purchased from his personal income (such as the sports cars) would be considered non-matrimonial. However, those items which had probably been purchased with the income from or proceeds of matrimonial assets, such as the apartments the husband bought shortly after the separation, were themselves matrimonial. The wife”s expenditure on items not included in the valuation of their assets, including clothes, travel and expensive gifts for the children would not be taken into account as the husband had also spent excessively and neither prevented her from spending nor obtained a maintenance order which he could have done had he felt she was behaving unreasonably (para. 46; paras. 55–57; paras. 61–62).

(3) The...