The landmark case of White v White established that, in principle, there should be no bias in favour of the ‘breadwinner’ against the ‘homemaker’ when deciding the division of assets upon separation (if each partner contributed equally to the welfare of the family) – known as the ‘sharing principle’.
There are exceptions to this rule and factors such as the length of the marriage or special contributions may justify a departure from an equal division of assets.
The ‘sharing principle’ was put to the test recently in the case of XW v XH  EWCA Civ 2262.
In XW v XH the parties separated after about seven years of marriage. They have one child together who has significant disabilities. The wife carried out the vast majority of the care for the child during the marriage whilst the husband went out to work.
The husband had started a company before the marriage, which grew substantially after the parties married and the husband sold his shares during the marriage. The increase in value of the husband’s shares during the marriage was around £293m.
The parties were unable to agree on the division of assets upon separation and the wife applied for a financial remedy order. At the final hearing the judge decided that the wife should receive around 25% of the growth in the husband’s shareholding in the company during the marriage.
The wife subsequently appealed the decision. Her case was that she should receive 50% of the increase in value of the husband’s shares during the marriage. Her grounds for appeal included the following:
- The husband’s business assets built up during the marriage are ‘marital assets’ so they should be shared equally.
- The judge was wrong to find that the husband had made a special contribution. To establish “special contribution”, there must be a disparity between the parties’ contributions that would be inequitable to disregard. The wife pleaded that the judge failed to take into account her contributions as homemaker, stating that he had focused on the husband’s financial contribution and failed to balance that against her domestic contribution.
The Court of Appeal agreed with the wife and found the approach taken by the judge to be “deeply discriminatory”. They found that a large portion of the value of the husband’s shares were the product of endeavour during the marriage, so they were marital assets to be shared equally. The Court of Appeal ordered a much fairer split of the total marital wealth of £296.7m, and the wife received a lump sum of £145m.