Not for sharing: passive growth, post-separation accrual, and post-separation earning capacity

Kate Armstrong Dere Street Barristers

Now that the dust has settled after Waggott v Waggott [2018] EWCA Civ 727 [2018] 2 FLR 406 this article reviews the recent series of reported cases dealing with the identification of non-matrimonial assets and the limits to the sharing principle. The article considers the application of the principles to three interrelated themes raised in the recent case law:

(1)     Post-separation income (Waggott (above); O’Dwyer v O’Dwyer [2019] EWHC 1838 (Fam) [2019] 2 FLR 1020)
(2)     Passive growth (IX v IY (Financial Remedies: Unmatched Contributions) [2018] EWHC 3053 (Fam) [2019] 2 FLR 449)
(3)     Post-separation accruals (C v C (Post-Separation Accrual) [2018] EWHC 3186 (Fam) [2019] 1 FLR 939)

Two points emerge: First a willingness to identify non-matrimonial property and to protect it from the sharing principle and second a flexibility as to whether a broad brush or a more arithmetical approach is appropriate in identifying what of the available assets should be shared and if so how.

The full article will be published in the January issue of Family Law. 

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