Divorce Law

Before the landmark case of White courts in ancillary relief cases adopted was then the well established ‘reasonable requirements’ approach. This practice involved the idea that the wife (as it usually was) in such circumstances should recover more than the bare minimum, more than her ‘needs, but not more than her ‘reasonable requirements’. The problem with this approach was that it was independent of how wealthy the husband was. For instance, in F v. F where after a ten year marriage the wife who had married a man worth £150-200 million received only £9 million. The ‘reasonable requirements’ approach was widely criticised for its injustice as it seems to devalue non-monetary contributions to the marriage and in practice was discriminatory against women, basing decisions on out-dated social standings.

White v White involved a husband and wife who divorced after thirty-four years with combined assets of some £4.5 million, mainly in farms (one jointly owned, the other by the husband alone) that they had run together. At first the trial judge Lord Hoffman applying what was then the well established ‘reasonable requirements’ awarded Mrs White just £1 million. The Court of Appeal increased her awarded to £1.5 million, with Thorpe L.J. identifying the farming partnership as the central feature, with considerations of contributions and overall fairness relevant. The case eventually went to the House of Lords where Lord Nicholls asked:

“Why should the assets built up during a marriage become immaterial once the reasonable requirements of the wife are assessed, and the surplus remain with the husband?”

Then the House of Lords emphasised the width of discretion conferred by s25 and went on with Lord Nicholls stating a principle of non-discrimination and equal value in respect of different contributions to the welfare of the family. He translated the non-discriminatory idea into a practical outcome in ancillary relief proceedings, formulating the yardstick of equal division of assets against which a provisional award should be checked. He alleged that a judge in exercising his statutory discretion under s25 should check his tentative views against the yardstick of equal division departing from that if and only if there are good reasons for doing so.  

This decision produced both academic and professional debate. It was perceived as a step towards the recognition of marriage as an equal partnership.  The decision signalled the abandonment of the ‘reasonable requirements’ ceiling on a wife’s award in cases involving ‘big money’. An approach that was considered by the Court of Appeal in 1996 in Dart v Dart as an approach; “So established that only Parliament could displace it”.

Since the decision in White there have been numerous cases which illustrate the importance of the application of the ‘yardstick of equality’.

In the case of Cowan v. Cowan the assets after a forty-two year marriage were not divided equally, but instead approximately split sixty-forty in favour of the husband, which the court regarded as fair looking at all the circumstances.  However, this case has been superseded by various other cases, such as Lambert which indicated a more equal division of assets. In the case the husband had amassed a fortune of roughly £20 million; the marriage lasted twenty-three years. The Court of Appeal awarded the wife fifty percent of the assets. Following this decision it would seem that the ‘yardstick of equality’ approach established in White is being closely followed. The courts seem to take the view that any argument contrary would only lead to cries of discrimination, namely housework is less valuable than financial work, which could essentially undermine the role and contribution of the homemaker. Which in light of the Human Rights Act 1998 the courts can ill afford.

In the case of GW v. RW the husband received sixty percent of assets because he had done most of the work and development of the assets prior to getting married. Mostyn QC found that the husband’s career was in full flight by the time the parties’ relationship began so that his earnings could not be said to be entirely developed through the marriage and fairness required departure from the yardstick principle.   Following this, it would seem that the ‘yardstick of equality’ is quite dependent on an accrued contribution over time with respect to ancillary relief.

Despite this, it is difficult to envisage the court departing from the yardstick principle in cases involving surplus assets.

There may however, be circumstances in which the court may find it justifiable to depart from the yardstick principle, in particular the duration of the marriage. This factor is a matter of importance in the exercise of the courts discretion under the MCA s25(2)(d) and the approach toward it has changed over time.  

Under old law there was the notion that one spouse is entitled solely by the virtue of the status of the marriage to be maintained on a scale appropriate to the other spouse’s standard of living.  An example of this was in Brett v. Brett where a twenty-three year old childless solicitor’s marriage ended after six months. She was awarded (in 1996 values) yearly payments of £16,000 and a lump sum of £200,000. On analysis this result would seem to be extremely generous as the woman had no children and her earning capacity wouldn’t have been affected too much as she was only married six months.

However, under current law the significance of the duration of marriage seems to be more fact dependent, as the duration of marriage is only one of the factors in the s25 checklist.  In the case of Foster v. Foster the court of appeal was asked to consider the suitable approach in the aftermath of White to parties contributions in short, childless marriages. Hale L.J. concluded that:

        

“Duration of marriage will obviously be relevant in cases where one party’s earning capacity may have been seriously affected by a long period devoted to home making and child bearing, but where a substantial surplus has been generated by their joint efforts, it should not matter whether they had taken a short or long time to do so”.

This would appear to suggest that in spite of the decision in White, the mere existence of marriage (regardless of duration) does not necessarily lead to a presumption of equality. Short marriages in some circumstances can lead judges to depart from the ‘yardstick of equality’.

To conclude, the ‘yardstick of equality’ principle established in White has become a landmark decision in ancillary relief cases.  Nevertheless, although this notion does encourage a fifty-fifty split, it only seems to be applicable in ‘big money’ cases.  Equal division is less likely to apply in cases where resources are limited, and where the housing needs of the parent with care of the children need to be considered first.

However, in circumstances where it does apply, it would seem that it is dependent on an accrued contribution over a passage of time. But it must be stressed that this is extremely dependent on the facts of each case.  Also the duration of marriage is only one of the factors in the s25 equation. But in practice it is generally agreed that shorter marriages are normally less likely to result in equal division of capital.  However, this raises debate over what constitutes a short marriage Re Attar v Attar.

More often it will be legal advisors who will be considering the s25 checklist because the courts role should be kept to a minimum. Court action in such cases is perceived to intensify emotions and is contrary to client’s respective needs, but it is satisfying to see reform that promotes justice and equality in today’s social climate.

Bibliography

• Cretney, S and Masson, J. (2002), Principles of Family Law, 7th edition, Thompson.
• Edwards, J. (Oct 2004), Duration of Marriage: I do, I promise, I may.
• Fracis, N and Fisher, M (Mar 2005). Departure from Equality…. Inherited property.  
• Hale B. et al. (2002), The family, Law & Society Cases & Materials, 5th edition, Butterworths.
• Rodgers, ME. (2004), Understanding Family Law
• Stone, N. (2004), Dividing By Two? A review of the latest court decisions.  

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