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part 3

Dharamshi v Dharamshi2000

H, a wealthy husband appealed against an order requiring him to transfer to W, his former wife upon the dissolution of their marriage a lump sum of GBP 1.5 million together with the matrimonial home, and a motor car. H contended that although W had helped to build up the family business, the sale of which had benefited him in the sum of GBP 4.5 million, the lump sum payable to W ought to have been quantified in accordance with the conventional Duxbury tables and ought to have reflected capitalisation of W's income requirements. Finding that W's contribution to the home, family and the business had been considerable throughout the duration of the marriage, the court held that the lump sum had been intended to give her a substantial fraction of the proceeds of sale not directly related to her reasonable requirements, following the decision in White (Pamela) v White (Martin) [2000] 3 W.L.R. 1571.

Abstract: A husband, H, appealed against an order in ancillary relief proceedings which obliged him to transfer the former matrimonial home to the wife, W, to pay her a lump sum of GBP 1.05 million plus 25 per cent of the proceeds of a tax avoidance scheme, and to make periodical payments of GBP 5,000 per year for the benefit of two children of the marriage. In 1972 H had come to the UK from Uganda as a young man and had set up a business which proved to be very successful. He married W in 1985 and she left her job to help in the business. The relationship broke down in 1996 and the marriage was dissolved in 1998. H argued that the judge had erred in failing to adopt the conventional approach of calculating W's reasonable needs on the basis of the Duxbury tables.

Held, dismissing the appeal, that in accordance with the dicta in White (Pamela) v White (Martin) [1999] Fam. 304, calculation of a wife's reasonable income requirements was no longer the basis for calculating the award but merely one of several factors. In the instant case, as there were more assets than were required for the parties' basic needs, the correct test was to aim for equality without regard to gender, and W's contribution as homemaker had to be ranked as highly as her contribution to the business. On that basis the judge's approach, whereby he had sought to give W a substantial proportion of the proceeds of sale of H's company, had been fully justified, White applied.


Jesner v Jesner 1992

A wife sought divorce from her husband and payment of a capital sum. Her husband sought payment of a capital sum and a property transfer order. The principal assets comprised property in joint names acquired following the sale of property in the husband's name or with money held in trust for him. The contents of the parties' home had been lost in storage where they had been placed by the husband.

Held, that the foregoing all fell to be regarded as special circumstances in terms of the Family law (Scotland) Act 1985 s.10(6) , and that having regard also to the economic advantage derived by the husband from the wife's looking after the house, no order for the payment of a capital sum should be made against either party and that the pursuer should transfer to the defender her interest in some but not all of the matrimonial property, the effect of which would be to give the pursuer approximately 30 per cent of that property.

Banks v Banks 2005

Abstract: The pursuer (H), raised an action of divorce against the defender (W). An issue arose as to the date when they ceased to cohabit, which was the "relevant date" for the purpose of a fair sharing of the net value of the matrimonial property under the Family Law (Scotland) Act 1985 s.10(3)(a). H and W were married in 1965, but due to the nature of H's job, working on various ships and oil rigs, they did not spend much time together in the matrimonial home over the years. The parties had stopped sleeping in the same bed in 1985. In April 1993, H went to Tunisia to work. When he did return occasionally to Scotland he would stay in the matrimonial home or in hotels. H and W kept a joint bank account, and H's salary was paid into that account every month. W continued to pay H's credit card bills and professional fees, and would occasionally send him items that he had requested. In May 1998 H and W agreed that H's salary would be paid into an account in Jersey, though from that point on H sent W a sum of money every month. It was H's case that he and W ceased cohabiting in April 1993 when he accepted the job in Tunisia. Alternatively, he submitted that the relevant date was January 1996, by which time he and W had almost no direct contact. W argued that the relevant date was in July or August 2001, when H last visited the matrimonial home.

Held, giving judgment, that the relevant date for the purposes of s.10(3)(a) of the Act was May 15, 1998. That was the date from which H ceased to stay overnight at the matrimonial home. May was also the month in which H decided to change his bank account. Even though H and W's finances were not separated at that point, the change was still a significant alteration in their relationship. It was important, in the instant case, to define what the parties' cohabitation consisted of, since it was not a conventional marriage due to the requirements of H's job. When H went to Tunisia he did not cease living together as man and wife with W. H had been abroad in similar situations many times before and had always returned to the matrimonial home. When he was in Tunisia, his clothing and possessions remained at the home and correspondence was sent there to him. His finances were still under W's control at that time. Even though H visited W in 2001 and ate a meal that she had prepared, it could not be said that at that date they were still living together as man and wife. The fundamental change in the parties' relationship occurred in May 1998.