The millionaire’s defence in finance cases

The “millionaire’s defence” is a term created following the case of Thyssen-Bornemisza v Thyssen-Bornemisza (No) [1985] FLR 1069 where a wealthy party put forward a defence to providing full disclosure on the basis that he had sufficient wealth to pay a lump sum or maintenance to the financially dependant party.

This defence causes some controversy as the court has an obligation to consider the parties’ financial resources properly. Furthermore, in order for the court to conclude that an order is fair and reasonable, it must consider the full and frank disclosure of all material facts, documents and other material.

Most cases that run this defence are largely frowned upon by the Court for the reasons outlined above. There may be some scope to run this defence in finance cases where there is a short marriage and the rationale may provide a more limited obligation for disclosure in those cases, particularly where the assets are exclusively or predominantly pre-marital.

In the case of AH v PH [2013] EWHC 3873 Fam following a 4.5 year marriage and two young children, the husband and wife separated and proceedings were issued. The husband had accumulated £76 million of assets all of which were non-matrimonial. The husband conceded that he could, given time, meet any reasonable order made by the court. In this instance, the Judge held that the millionaire’s defence in this case was satisfactory given that the case did not involve the principle of sharing the marital assets and instead, is based on the needs of the wife.

It should also be remembered that the millionaire’s defence is not limited to financial proceedings in divorce, but can also be used in financial provision for children proceedings. In the case of A (A Child) [2014] EWCA Civ 1577 the mother sought to vary a finance order arguing that the father had failed to adequately disclose his assets due to his millionaire’s defence argument. This application was rejected and it was held by the court that in cases where there was significant wealth, the is no requirement to examine in close detail, the financial resources; the financial support is for the children and the carer’s allowance within the award should reflect its legitimate purpose. Furthermore, the judge did in fact make unfavourable presumptions about the father’s wealth as well as endorsing the mother for housing.

In short, the millionaire’s defence is a difficult defence to run and one which only succeeds in exceptional circumstances. If you would like further tailored advice on your financial situation or divorce, please contact one of our experienced solicitors at Hunter & Uro. Serving Bedford, Northampton and Milton Keynes, our lawyers can help you with your family law and divorce matters.

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