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Non-Matrimonial Property Considered by the Court of Appeal

When couples divorce, issues to do with what property should be considered to be part of the matrimonial ‘pot’ can be difficult and emotive. A family home that has been purchased prior to the marriage by one party, or inheritance money that was received while the marriage was breaking down can become contentious issues with the parties potentially taking quite different views as to whether or not they should be shared and, if so, in what proportion. The courts have always recognised that the circumstances in which property was acquired, and the parties intentions as to that property, can be key in determining how assets should be divided, but the recent judgment in the case of Hart v Hart* provides a useful review of the case law in this area and guidance for those involved in similar cases.

The Court of Appeal was tasked with considering Mrs Hart’s appeal against the decision of HHJ Wildblood QC at first instance which awarded her less than 50% of the total assets of the parties. Mrs Hart received £3.47M of a total pot of £9.4M, this being the sum that the Judge determined was necessary to meet her needs. The departure from the ‘sharing principle’ was justified by reference to the pre-marital wealth that Mr Hart had accrued. The Court of Appeal dismissed Mrs Hart’s appeal and found that Judge Wildblood was entitled to come to the conclusions he did in the case. Lord Justice Moyland, giving the lead judgment, suggested that Judge Wildblood could, and possibly should, have approached the case differently, but that the final award was within the bounds of fairness. This was despite the fact that it was recognised that Mr Hart’s litigation misconduct had made it difficult to determine the exact source and value of his pre-marital wealth.

This case may serve as a useful review of existing principles but, unfortunately, it does little to clarify some of the issues surrounding determination of financial awards on divorce. Practitioners in this area have long acknowledged that Judges view the calculation of awards as more of an art than a science, with a wide margin of discretion and little in the way of strict formulae to refer to. Hart v Hart confirms this view and again demonstrates the fluid nature of the law when considering financial provision on divorce.

Thomas Brownrigg (Solicitor)

Edward Nicklin (Paralegal)

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*Hart v Hart [2017] EWCA Civ 1306

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