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Family Law (Journal)/2005 Volume 35/November/Articles/Miller v Miller: Guidance or Confusion? - [2005] Fam
Law 874

Family Law

[2005] Fam Law 874

1 November 2005

Miller v Miller: Guidance or Confusion?

Ever since the decision of the House of Lords in White v White [2001] 1 AC 596, [2000] 2 FLR 981, in which
their Lordships laid down new guidelines for the determination of ancillary relief cases and criticised the
reasoning process of the Court of Appeal (while leaving the decision below unchanged), practitioners have
been waiting for the judicial decision which would 'explain' the decision in White and apply it to more run-of-
the-mill cases. There has been a run of cases in which 'the answer' has been confidently expected, but in
which hopes have been dashed. The first such case was Cowan v Cowan [2001] EWCA Civ 679, [2001] 2
FLR 192 in which Thorpe LJ commented that:

'there can be no doubt that the specialist profession is looking to this court to suggest ways and means of applying the
principles and guidance in Lord Nicholls of Birkenhead's speech to present and future cases.'

However, he concluded that this was not the right occasion and that 'any consideration of the application of
the principles in White to the sort of case that is decided daily by district judges up and down the country'
would have to wait for a more suitable vehicle. There followed several cases at first instance, notably those
decided by Coleridge J, which applied the principles of White with admirable clarity. It was hoped that the
answers for which the profession was looking would be provided by the Court of Appeal in Lambert v Lambert
[2002] EWCA Civ 1685, [2003] 1 FLR 139 and indeed their Lordships did succeed in clarifying some issues,
not least the confusion caused by its own decision in Cowan. However, once again it was emphasised that
this was a most unusual case, turning on the definition and relevance of 'special contributions' and that it was
not the case for which everyone was waiting.

Much speculation was then caused by the combined appeals of McFarlane v McFarlane; Parlour v Parlour
[2004] EWCA Civ 872, [2004] 2 FLR 893, fuelled to some extent by the celebrity status of Mr Parlour. Much
useful guidance was given relating to the particular circumstances of the case. However, once again Thorpe
LJ was at pains to point out that these were highly unusual cases and that the court's decision was limited to
their peculiar facts. No general guidance could be given arising out of them.

A false dawn?
However, hope springs eternal, and much interest was caused by the reports in the popular press of the
hearings in Miller v Miller [2005] EWCA Civ 894, [2006] FLR (forthcoming). Was this to be the case for which
everyone had been waiting? Mr Lewis Marks QC, counsel for Mr Miller, obviously thought so, at least
according to Thorpe LJ who remarked at the beginning of his judgment that 'the appeal has certainly
generated a good deal of professional interest. Indeed, Mr Marks QC for the appellant husband, suggested
that there was a string of cases awaiting the outcome of the appeal'. However, once again it seemed that
hopes were to be dashed, his Lordship commenting that:

'in the end the outcome depends not so much on the resolution of novel points but the familiar assessment of whether
the judge's award falls within the generous ambit of discretion and whether its foundations are sound.'

Is this really so and, even if so, are there any plums which the anxious practitioner can pluck from this

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particular pudding? As always the answer must be mixed but first the facts of this case must be briefly
outlined.

The facts
The husband was English and 41 years of age. The wife was American and 36 years of age. The husband
was an exceptionally successful fund manager. The wife arrived in England in February 1995, the parties met
in the summer of 1995 and shortly thereafter commenced an intimate relationship. There was a considerable
financial disparity between them, the wife having a salary of about £85,000 per annum and living in a rented
flat and the husband's earnings, inclusive of bonus, possibly exceeding £1 million per annum. This intimate
relationship, which did not include cohabitation, continued for 4 years before the couple became engaged in
the summer of 1999 and married on 14 July 2000. In preparation, the husband bought the matrimonial home
in February 2000 for £1.8 million. The wife moved to London and to a London job at about that date. In March
2000 the husband received £20 million. being the second tranche of sums due to him as a result of
transactions completed some 5 years earlier. The husband was closely allied in business to John Duffield
who, in May 2000, had started to invest in a company called New Star and entered into a gentlemen's
agreement with the husband to give him 20% of the venture if and when the husband could be extricated from
his then employment. This objective was achieved on 29 January 2001 when the husband joined New Star as
it commenced to trade. The husband received 200,000 £1 shares in New Star issued at par. As a result of the
move, the husband suffered a huge reduction in basic salary but acquired at par 200,000 shares which at the
date of their issue were already being placed elsewhere at £80 per share. Furthermore, these shares had the
obvious potential to rise significantly in value above even that high plane. Although the husband in August
2003 granted an option to Mr Duffield to purchase 75,000 of his shares at £80 a share in December 2006, the
remaining 125,000 shares hold the potential for further gain.

In May 2001 the wife gave up her employment. She had developed a considerable interest in interior design,
the London home was complete and attention turned to a villa in the south of France offered to the wife on her
birthday in June 2001 and purchased in joint names in September 2001. Its refurbishment was completed by
April 2002. The parties had agreed deferring children at the outset of marriage. In August 2002 she miscarried
and did not conceive again. On 23 April 2003 the husband left to pursue his relationship with another woman,
whom he has since married. The parties were divorced and ancillary proceedings followed quite quickly.

The litigation
At the unsuccessful financial dispute resolution hearing on 6 February 2004 the directions order contained the
following recital:

'And upon the respondent declaring that she will not be relying upon s 25(2)(g) of the Matrimonial Causes Act 1973 in the
prosecution of her claim for ancillary relief against the petitioner.'

There followed a pre-trial review before the President of the Family Division on 29 July 2004 at which nothing
was said about the wife's promise not to rely upon conduct. However, on 6 August 2004 her solicitors wrote to
say that counsel had 'come across the only recently reported case of [G v G (Financial Provision: Separation
Agreement) [2004] 1 FLR 1011]'. They continued by saying that at the trial they intended to rely on G v G: 'to
establish the facts that led to the end of the marriage and as a defensive shield to the reliance that no doubt
will be made by your client on the duration of the marriage'.

At the outset of the trial before Singer J, the husband applied to the judge to rule that the wife was bound by
her declaration and was, therefore, precluded from asserting that it was the husband's conduct that had
destroyed the marriage. The judge refused that application, emphasising his statutory duty to consider all the
circumstances of the case and particularly the criteria in s 25(2). He noted that each of the parties had given a
lengthy account of the marriage and its breakdown in their narrative affidavits and that the husband was not
proposing to withdraw any of his criticisms of the wife.

The submissions of the parties were polarised. The husband submitted that the wife was only entitled to be
returned to her former position as a professional woman living in a flat with an income of about £50,000 a year
net. That could be achieved by allowing her £500,000 to purchase a flat and a £120,000 to cover 3 years of
revenue shortfall while she worked her way back to her former level. The husband offered £1.3 million, which
he said was generous. The wife asserted that as a consequence of the decision in White v White the proper
approach was to calculate her award by reference to the marital acquest, ie the increase in the husband's

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fortune during the period of marriage. The extent of the acquest was much in dispute. Fundamentally, it was
argued for the husband that the New Star shares were acquired before the marriage since they were the
subject of the gentlemen's agreement between the husband and Mr Duffield in May 2000. The wife's reply
was that since they were not acquired by the husband until January 2001 they were the product of the years
of marriage. There were differences between the wife's accountant estimate of the husband's wealth (£20
million) and that of the husband's accountant (£14 million). The wife submitted that her award should be £7.2
million, representing 37.5% of the marital acquest.

Singer J accepted the wife's evidence as to the circumstances of the marriage and its breakdown and
declined either to rule on the difference of opinion between the forensic accountants or to put a value on the
New Star shares. He rejected the approach advocated by both counsel, ordering that:

(1) The wife's half-share of the French villa should go to the husband but that the wife should
have the London home valued at £2.3 million.

(2) The husband pay the wife a lump sum of £2.7 million.

He concluded his judgment with the following sentence:

'A global award equivalent to £5 million (plus the furniture and chattels which have agreed) seems to me a fair outcome
irrespective of what ever value the husband in due course may achieve for the New Star shares.'

The appeal
The husband appealed. In his grounds of appeal and skeleton argument it was contended that the judge had
erred in permitting the wife to adduce evidence as to the cause of the breakdown in the face of her financial
dispute resolution declaration and in holding that the husband was to blame for the breakdown of the
marriage and that this consideration shielded the wife from the husband's reliance on the short duration of the
marriage. It was said that the judge was plainly wrong to justify his substantial award on the ground that the
wife had a legitimate expectation that she would live at a higher standard of affluence than she had enjoyed
prior to the marriage on a long-term basis and that he wrongly rejected a clear line of authority that
established the principle on which claims were to be determined in short marriage cases. In particular he
relied upon S v S [1977] Fam 127, H v H (Financial Provision: Short Marriage) (1981) 2 FLR 392, Robertson v
Robertson (1983) 4 FLR 387 and Hedges v Hedges [1991] 1 FLR 196.

Much of this was given short shrift and at the conclusion of the submissions on behalf of the husband, the
wife's counsel was asked to address only two questions, namely:

(1) Was the judge's conclusion sufficiently explained and reasoned?

(2) Was the judge's overall award plainly excessive?

The wife argued that the judge was clearly impressed by her commitment to the marriage. Its short duration
was neutralised by the combination of that commitment and the wife's comparable innocence in its
breakdown. Furthermore the judge had had proper regard to the wife's needs. As to the scale of the overall
award it was emphasised that it represented something between one sixth and one seventh of the husband's
fortune. The product of the marriage was something between £12 million and £16 million. Taking a middle
figure, £5 million represented 34% of the marital acquest. Finally it was submitted that before the court could
interfere it would not be enough to conclude that the judge's reasoning was too attenuated if it were satisfied
that the overall award lay within the very wide ambit of his discretion. Only if the court concluded that the
award was plainly excessive as well as inadequately reasoned could it interfere.

The decision of the Court of Appeal

The procedural issue

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Thorpe LJ held that while a retreat from a clear declaration is generally to be deprecated and may in many
cases result in a heavy costs penalty, such a declaration cannot possibly override or circumscribe the trial
judge's obligation to investigate whatever he conceives relevant and necessary to enable him to discharge his
statutory duty. Ancillary relief proceedings are quasi-inquisitorial and the judge is never confined by what the
parties elect to put in evidence or by whatever they may agree to exclude from evidence. Singer J had been
indisputably right to rule as he did on 11 October 2004, particularly given that the declaration had to be
weighed in the context of the contentious affidavits filed by the parties both before and after the making of the
declaration.

The husband had sought to meet that difficulty by asserting that as a matter of principle and construction
allegations of conduct in ancillary relief could only be advanced under s 25(2)(g) and if that sub-section was
excluded by agreement or concession then conduct could not be introduced as an aspect of any other of the
statutory criteria. Thus it was not open to a party to disavow s 25(2)(g) and then contend that the other
spouse's contribution, which s 25(2)(f) requires the court to assess, was valueless or devalued because of
attitude or conduct. It was further submitted that it was not open to an applicant to finesse the other party's
reliance on the short duration of the marriage by asserting that the breakdown was the consequence of the
other's conduct. That case could only be mounted under s 25(2)(g) as the wife had here correctly recognised
by her response to questionnaire. Were the court to hold otherwise, it would be flouting the principle
established in the seminal case of Wachtel v Wachtel [1973] Fam 72 and opening the floodgates to ancillary
relief trials that would be akin to the bitter defended divorce that flourished prior to the Divorce Reform Act
1969.

Thorpe LJ said that those submissions could not be right. The statutory criteria were not to be rigidly
characterised. The judge had an overriding obligation to regard and to reflect in his judgment 'all the
circumstances of the case'. Conduct that would not merit advancing under s 25(2)(g) was not therefore
irrelevant or inadmissible. Often the court's assessment of the worth of the comparable contributions would
require consideration of motives, attitudes, commitments and responsibilities. He relied on his own judgment
in the case of G v G (Financial Provision: Separation Agreement) [2004] 1 FLR 1011, where he said (at para
[34]):

'A judge has to do fairness between the parties, having regard to all the circumstances. He must be free to include within
that discretionary review the factors which compelled the wife to terminate the marriage as she did. The point was
essentially taken as a defensive shield to the reliance upon the duration submission. There must surely be room for the
exercise of a judicial discretion between the pole of a wife who is driven to petition by the husband's unfeeling
misconduct and that of a wife who exits from a marriage capriciously and for her own advantage. It seems to me that the
judge was doing no more than taking his bearings as to where he stood along that path.'

Singer J had directed himself by reference to G v G and he was clearly right so to do. Having seen and heard
the parties extensively cross-examined he was plainly entitled to conclude that the husband was to blame for
the breakdown of the marriage

Wall LJ agreed. Singer J had been plainly right to follow and apply paras [32]-[34] of Thorpe LJ's judgment in
G v G, which his Lordship found to be an entirely accurate analysis of how a judge exercises a proper judicial
discretion when dealing with s 25(2)(d) of the Matrimonial Causes Act 1973 (MCA 1973) in a short marriage
case. As to what the proper approach in a short marriage case should be, the husband had argued that cases
decided about 25 years ago settled the principle to be applied. That principle was that the award should be
enough to get the unhappy applicant back on her feet, deriving from the judgment of Balcombe J in Robertson
v Robertson. Thorpe LJ said that there were a number of very good reasons why that should no longer be the
modern approach. First, it originated and developed during long years in which the yardstick for measuring
the extent of the applicant's claim was an assessment of her reasonable requirements. Secondly, a marriage
was not to be equated to a purely financial venture where the court might redress breach of contract or the
disintegration of a partnership by an award of damages or other financial relief. Section 25 required a more
sophisticated evaluation of the extent of the wife's commitment to and investment in the marriage emotionally
and psychologically. In some cases it may be necessary for the court to assess emotional and psychological
damage and the extent to which the applicant's future capacity and opportunity to enter into a fulfilling family
life has been blighted. What a party has given to a marriage and what a party has lost on its failure cannot be
measured by simply counting the days of its duration. Thirdly, the husband's reliance on the old cases was
clearly precluded by the decision of the Court of Appeal in Foster v Foster [2003] EWCA Civ 565, [2003] 2
FLR 299 where Hale LJ, as she then was, had considered the impact of the decisions in White v White,
Cowan v Cowan and Lambert v Lambert. Her Ladyship had emphatically rejected the submission that those
authorities were solely concerned with the problem of evaluating the very different contributions of

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breadwinner and homemaker over a long marriage where there had been children to bring up and that they
were of no relevance to a short, childless marriage where both parties had been working. Hale LJ had
rejected that submission emphatically. She recorded counsel's eventual concession that where a substantial
surplus had been generated by joint efforts it could not matter whether they had taken a short or long time to
do so. Thorpe LJ said that even though the facts of that case were very different, it was clear that Hale LJ was
signalling a fresh approach to measuring of awards in cases involving marriage of short duration. Wall LJ
agreed, adding: 'the case [Foster], in my view, is a warning of the dangers which can flow if there is a
disproportionate emphasis on the brevity of the marriage'. Furthermore, his Lordship had received no help on
the difficult issue of quantum from comparisons with awards for libel or professional negligence or personal
injuries. Not only were such comparisons irrelevant but they seemed to Wall LJ both to demean the status of
marriage and to take no account of the serious social, financial and psychological effects which irretrievable
breakdown frequently have on those who suffer it. He was no doubt at all that Singer J was right to reject the
pre-White cases and right to 'hold on to the terms of s 25 and the discretionary exercise, and to follow the
guidance of Thorpe LJ in [McFarlane; Parlour]'.

Both Thorpe and Wall LJJ considered that the only ground of appeal which held substantial prospects of
success was whether the judge was right to found his award on the wife's legitimate expectation. Was his
award plainly excessive? As Wall LJ put it:

'In my judgment Mr Marks [for the husband] had two powerful arguments, both capable of very simple expression. The
first was that the judge had simply not explained himself. The second was that the award was so large that, in the
absence of a proper rationalisation, it was simply outside the band of reasonable decisions, and must, accordingly, be
plainly wrong.'

Why did Singer J decide as he did?

Thorpe LJ was constrained to say that the judge's explanation for the end result was 'by no means
straightforward or clear'. The case had been extremely hard fought by the best available professionals on both
sides and at its conclusion the husband was surely entitled to a clear explanation as to why the judge had
opted for an award much closer to the submission of the wife's counsel, Mr Mostyn QC. His Lordship
confessed that he had 'read and re-read the judgment in a search for its true ratio'. In the end, he thought he
could discern the following rationale. The relevant paragraph revealed that the decisive factor for the judge
was that the marriage, taken in its full context, gave the wife a legitimate entitlement to a long-term future on a
higher plane of affluence than she had enjoyed prior to marriage. Thorpe LJ accepted that in the context of
this case the judge was entitled to regard as 'the key element' the wife's 'legitimate expectation' of living to a
higher standard as the ex-wife of Mr Miller, while emphasising that this was a fact-dependent conclusion and
was not to be elevated into a principle or yardstick filling a vacuum created by the rejection of the
restitutionary objective sought in the old cases.

As to the length of the marriage, Singer J had found that there was no mutual commitment to make their lives
together until their engagement in July 1999. Until then their ties were tentative and their separate
expectations did not accord. There had been no pre-engagement honeymoon to blend seamlessly into
marriage. Singer J had tended therefore to favour the husband's submissions and treat this a marriage of
relatively short duration. As to the way the marriage ended, the judge had left the middle ground to accept the
wife's case. His essential findings were that the husband may well have developed an irritation with aspects of
the wife's personality and behaviour but this reflected more his lack of adaptability than any shortcomings on
her part. The sum of his complaints was 'not marriage-breaking stuff'. His burgeoning relationship with the
woman with whom he now lived was a consequence rather than a cause of the breakdown. Singer J had
concluded:

'None of this, to state the obvious, is conduct which it would be inequitable to disregard in arriving at a resolution of the
financial dispute. But it has the result that it would be unfair to [the wife] to concentrate solely on the bare chronology of
this marriage without acknowledging that she did not seek to end it nor did she give [the husband] any remotely sufficient
reason for him to do so.'

As to contributions, Singer J had concluded that while the wife's contributions to the family life were non-
financial (save to the extent that she worked at the start of the marriage) she aspired to provide:

'the domestic and social fabric in which they could both enjoy the fruits of [the husband's] success and the opportunities

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for leisure, relaxation and enjoyment which were available. A major contribution in this context was the planning and
oversight she brought to the refurbishment, equipping and furnishing of the French property to which [the husband] has
become so attached. Neither the modest period during which she was able to make this contribution nor the very
considerable scale of [the husband's] efforts and the rewards they brought him affect the proposition, which I accept, that
incommensurable though these contributions are as chalk and cheese, nevertheless no discriminatory attitude should be
allowed to treat them as other than equivalent.'

Looking at the award in the round, Thorpe LJ said that it would be easy and superficial to characterise it as a
pay-off of £5 million for a mere 2¾ years of marriage. In his judgment the reality was very different. Although
the judge did not attach much weight to the four years preceding engagement, the fact was that at the age of
26 the applicant committed herself to this man. At the outset of the marriage, she worked to ensure the
emergence of a primary home and a holiday home fit for his status as a leader in his chosen field. Once that
was achieved, she tried for a family. The responsibility for the collapse of that endeavour must in part be
ascribed to the husband's decision to end the marriage. Finally, it must not be forgotten that the net value of
the award was in reality £4.5 million given the judge's decision that the wife's half share in the villa was to go
to the husband.

On that analysis, Thorpe LJ's ultimate conclusion was that the judge's award was both sufficiently if obliquely
explained and that it could not be labelled plainly excessive. It lay at the top end of the permissible bracket
and had Thorpe LJ been sitting at first instance he did not think that he would have gone so high. However,
he emphasised that the facts and circumstances of the case were highly unusual. The ambit of the judge's
discretion in cases involving very large assets and a short childless marriage was particularly wide and the
court had to bear in mind the limits of the appellate court in interfering with the trial judge's discretion (see the
words of Lord Hoffman in Piglowska v Piglowski [1999] 1 WLR 1360, [1999] 2 FLR 763). The limited nature of
the approach may be indicated by Thorpe LJ's final words:

'Although I have not found this an easy appeal, in the end I am firm in my conclusion that it must be dismissed. My
judgment may well only serve to increase the husband's sense the courts have been hard on him but the limitations on
the role of the appellate court are clearly spelt out.'

Wall LJ referred to the words with which Russell LJ had begun his judgment in Gojkovic v Gojkovic and
Another [1992] Fam 40, [1991] 2 FLR 233, at [49]) where he had responded to counsel's invitation to lay down
guidelines which would be of assistance in deciding the appropriate level of lump sum payments in cases
where very substantial capital assets are available. Russell LJ did not think that such an exercise was
possible. The guidelines already existed in ss 23 and 25 of the MCA 1973, as amended. These required the
court to have regard to all the circumstances of the case and subs (2), under no less than eight sub-
paragraphs, set out the matters to which the court in particular shall have regard. Wall LJ concluded as
follows:

'If those words have a familiar ring, it is because they have been spoken by every judicial generation since s 25 of the
Matrimonial Causes Act 1973 had its first expression as s 5 of the Matrimonial Proceedings and Property Act 1970. I first
heard them in the well-known judgment of Ormrod LJ in Martin v Martin [1978] Fam 12, at 19, which I will not repeat. The
consistent message from this court has been that the judge must apply the factors identified in s 25(2) to the facts of the
individual case. The House of Lords in White now tells us, and Foster in this court confirms, that the objective is a fair
result that avoids discrimination. Proposed outcomes can be tested against the yardstick of equality. These are the
guidelines which practitioners and the courts must strive to follow.'

Conclusions
What then are practitioners to make of this decision? Certain obvious points may be made. Every case is, to
some extent, fact-dependent, and Wall LJ was clear (at para [87]) in advocating caution about the use of this
or any other decision as a template for others. The powers of an appellate court are limited and even though
the Court of Appeal clearly thought this award verged on the excessive, it could not interfere. Essentially, the
decision was more right than wrong. Any hope of clear guidelines other than those in s 25 and White is
misplaced. However, some clear lessons can be drawn from this case, not all of them new but usefully
highlighted in the judgments. They can be summarised as follows:

(1) There is no doubt now that the older cases as to short marriages are now of little value.

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The Court of Appeal's decision in this case, reaffirming Foster v Foster, makes it clear that the
older approach of putting the applicant (normally a wife) back on her feet is inappropriate. The
court cannot avoid considering all the factors set out in s 25 and it is still necessary to find some
good reason for departing from equality.

(2) 'Conduct' which falls short of the level required by s 25(2)(g) may still be relevant as part of
'all the circumstances'.

(3) The fact that this was to be a clean break seems to have helped persuade Wall LJ at least
that the large capital award was justified (at para [85]).

(4) Finally, with great respect to the trial judge, it must be said that the vital importance for
judges of making clear the reasons for their decisions was emphasised (had the judge not been
as experienced and eminent as this judge, one wonders whether the court would have striven so
hard to discern those reasons).

It would be tempting to leave matters there, but it seems to one (semi-retired) toiler in this particular vineyard
that certain issues are raised by these judgments which do not make the life of fellow toilers any easier; not to
put too fine a point on it, they create enormous scope for future confusion.. These can be summarised as
follows:

(1) The law as to awards in short marriages was never easy but there were at least some
guidelines or rules of thumb which could be adopted. That is no longer the case; the only 'rule of
thumb' left is that, following Foster, one might look at what each party had brought to the
marriage, but even that cannot be a substitute for considering all the circumstances and all the s
25 factors. Attempting to bring any short cut into this is now clearly forbidden but of course that
does not make life any easier either for practitioners advising clients on the likely outcome nor
for the judge at the financial dispute resolution (FDR) hearing trying to do the same. In fact, one
would be tempted to ask how far the length of the marriage came into the calculations in Miller at
all - what difference would it have made if this had been a 10-year marriage?

(2) The issue of whether 'conduct' is conduct properly so-called or just part of the
circumstances is even more problematic. Granted, Miller said nothing new; Thorpe LJ had said it
before in G v G but, even so, this may come as something of a surprise to some practitioners
and it does not simplify the judge's task. In this case the court seems to have taken account of
the fact that the husband broke up the marriage by his adultery, the wife was 'innocent', and
wanted the marriage to continue, and the husband should not therefore be entitled to rely on the
shortness of the marriage. Given the delphic quality of Singer J's judgment, it is difficult to see
exactly how far these matters were weighed in the balance, but he certainly took them into
account and the Court of Appeal said he was right to do so. Ask any practitioner what is the
most difficult task he or she faces and high on the list will be that of persuading the client that
the court is not interested in who was to blame for the breakdown of the marriage. Without
wishing to exaggerate this aspect of the case, it has to be said that the Court of Appeal has
given some ammunition to those who wish to depart from this general principle. Couple this with
Thorpe LJ's statement that these days there is required:

'a more sophisticated evaluation of the extent of the wife's commitment to and investment in the
marriage emotionally and psychologically. In some cases it may be necessary for the court to
assess emotional and psychological damage and the extent to which the applicant's future
capacity and opportunity to enter into a fulfilling family life has been blighted.'

The possibilities of rancorous litigation in the run of the mill case seem to have been opened up.
It must be the case that clarification will be required by a later decision.

(3) Singer J placed some reliance on the fact that the wife had a legitimate expectation that
she would be the wife of a rich man and that she would share in his affluence. The Court of
Appeal did not criticise this. Presumably this expectation was part of 'all the circumstances'. One
shudders to think of how these findings could come back to haunt us all. It seems therefore that,
whereas the court cannot now decide a short marriage case by looking at what the applicant has
lost by the marriage, it can legitimately look at what she has lost by the divorce and at what she
hoped to gain by it.

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Finally, it seems that Mr Miller intends to petition the House of Lords for leave appeal. If successful, this (plus
the pending Lords hearing in McFarlane) should make interesting reading; there is much to be corrected..

Until his recent retirement, Roger Bird was a district judge at the Bristol County Court. The fifth edition of his
Ancillary Relief Handbook (Jordan Publishing) has just been published.

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