Robertson v Robertson [2016] – To be, or not to be, a matrimonial asset

In Robertson v Robertson [2016] Mr Justice Holman had to decide whether the husband’s shareholding in ASOS, which he owned two years prior to the parties meeting and beginning their relationship, was a matrimonial or non-matrimonial asset, and the extent to which the wife could share in the value of that shareholding.

The husband argued that his shareholding in ASOS and the three Wimbledon investment properties that he purchased following the sale of part of that shareholding, were the residue of precisely the same shares he owned in ASOS two years prior to the parties meeting.

The wife sought to rely on Jones v Jones [2011] EWCA Civ 41 and argued that only the actual value of the shares at the start of the relationship should be considered non-matrimonial. She conceded that an additional figure should be added to the actual value of the shares to represent the ‘passive growth’ of the shares (that is the amount that the shares would have increased by without any input from the Husband).

When approaching the assets, Holman J first looked to the comments of Lord Nicholls and Baroness Hale in Miller; McFarlane [2006] UKHL 24 in respect of matrimonial and non-matrimonial assets. He then turned to Jones v Jones to deal with the issue of passive growth. On reviewing the formulaic approach set out in Jones v Jones, Holman J stressed that “the methodology is a tool and not a rule”.

Holman J then turned his attention to the report of the single joint expert accountant. The expert provided an assessment of the value of the passive growth of the ASOS shares that on the wife’s case would mean £4.84 million would be carved out for the husband as non-matrimonial assets from the total of £219.5 million. Resulting in the wife receiving just under 49 per cent and the husband just over 51 per cent of the assets. Holman felt that this was “so unfair to the husband on the facts and in the circumstances of this case, and so over-generous to the wife” that he went on to consider all of the matters in s 25 of the Matrimonial Causes Act 1973 and to utilise his broad discretion under the Act. In short, Holman J reviewed all of the possible options available to him and decided that the fairest outcome was to divide the assets up at his discretion.

The case also reflects the trend regarding ‘stellar’ or ‘exceptional’ contribution cases. Holman J refers to his own judgment in Gray v Work [2015] EWHC 834 (Fam) and to the judgment of Lord Justice Wilson in K v L [2011] EWCA Civ 550. Holman J considered that the “scale of the wealth in the case was large enough to admit consideration of special contribution” but that “the husband did not…make a special contribution during the marriage as that concept is understood and applied by the courts”. Holman J went on to state that the husband “with respect to him, is not a genius” and that his contribution was equally matched by wife’s running of the household. This supports the trend of the courts to allow stellar contribution in very few cases – it is proving increasingly difficult to run these arguments successfully.

Family practitioners can also take wider points from the case. When considering whether assets owned by one party prior to the marriage are matrimonial or non-matrimonial, the Court will look at the overall effect that the inclusion or exclusion of those assets from the matrimonial pot, will have. Robertson v Robertson illustrates that if excluding an asset entirely will produce an outcome that appears in percentage terms to be wholly unfair, i.e. a significant departure from the 50-50 starting point of equality, the Court will exercise its broad discretion under s 25 of the Matrimonial Causes Act 1973 to ensure a fair outcome. The case also emphasises that there is no certainty in any dispute in financial provision cases because of the overriding discretion that the courts have.