• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month
  1. 1
  2. 2
  3. 3
  4. 4
  5. 5
  6. 6
  7. 7
  8. 8
  9. 9
  10. 10
  11. 11
  12. 12
  13. 13

Law of the home: Ancillary relief Evaluation

Extracts from this document...


´╗┐Question 2: Since the turn of the century ancillary relief (AR) law has evolved greatly. Despite little legislative change, focusing on The Matrimonial Causes (NI) Order 1978 (MCO 1978), development can be put down to the courts wide discretionary power in the area, allowing this case specific approach to characterise the law in the recent decades.[1] This essay puts forward the argument that judicial developments, especially in the House of Lords, was a necessity for fairness regarding gender equality and non-discrimination. However, I will also argue that uncertainties exist within these developed principles, allowing for expensive, resource consuming litigation and confusion in practice. I will specifically be analysing the leading cases in the area, of White v White[2] and Miller; McFarlane[3] highlighting both the fairness developed afterwards but also the legal uncertainties which persisted in subsequent case law, concluding with the potential for reform. AR is a statutory regime, where upon breakdown of marriage there is a judicial regulation of assets, this is often the case when an agreement cannot be met outside of the courts. Before analysing case law development with regards AR, we first must look at how the law has been shaped. Judicial divorce was originally governed by the Matrimonial Causes Act 1939 (NI), traditionally difficult to obtain, further development was introduced through the MCO 1978 (NI). The grounds for such an order where offered on evidence of a matrimonial offence such as adultery or unreasonable behaviour. This was a turning point towards the ?radical notion that women are people?[4], due to the introduction of a mixed/no-fault divorce[5]. Despite dissatisfaction from the ?alimony drones?[6], introduction of a wide judicial discretionary power, regarding the division of current and future assets, allowed the home-makers access to property as well as allowing financial provision orders, thus working against the societal fear of ?Casanova?s Charter,?[7] allowing for the foundations of fairness to begin to develop in the law. ...read more.


Whilst this wasn?t ring-fenced, the applicant had a weaker claim to this property especially within shorter marriages. In longer marriages, the two types of property tended to merge. However, the HL had query over business assets developed by one party alone, with Baroness Hale placing them in non-matrimonial property and Lord Nicholls disagreeing.[42] Therefore, questions on scope of matrimonial property and when to depart from equal sharing where left unanswered for future occasion.[43] Further issue arose around the affirmation of ?special contributions.?[44] It was clarified in order to depart from equal sharing their must be a ?genius quality? that created the wealth[45]. Despite development to incorporate both financial and non-financial contributions, a distinction was essentially introduced between the bread-winner and the home-maker, allowing inequality ?through the back door,?[46] more so, with no threshold of wealth which could constitute a special contribution, confusion arose, despite finding that the special contribution on behalf of one party would affect the award, this was mainly aimed towards the financial contributor.[47] Subsequently, further transparency is needed with regard a spouse?s future income being subjected to financial orders for compensation. As per McFarlane, should it apply strictly to applicants with evidence of a lucrative career which was given up? And if so what is the staring income, or what defines a ?lucrative? career?[48] And to what point would a judge impose values on ?subjective, non-pecuniary worth? of different career fields.[49] Therefore, the courts have contained this area restrictively, in order to aid such uncertainties, by allowing a spouse with ordinary career paths, to be compensated accordingly by general assessment,[50] however this was not expressly limited. It was observed in subsequent case law that claim for compensation in AR is a feature to aid fairness rather than a claim in its own right.[51] Thus, compensation for market sacrifices has now been established as an independent element award but the scope is unclear. ...read more.


19 International Journal of Law, Policy and the Family 229 [19] Bailey-Harris [n12] 537. [20] Page v Page (1981) 2 FLR 198, 201; Preston v Preston [1982] Fam 17. [21] White (n2). [22] Ibid [24]. [23] Bailey-Harris (n1) 540. [24] White (n2) [37]. [25] Ibid [35]. [26] A. Diduck, ?Ancillary Relief: Complicating the Search for Principle,? [2011] Journal of Law and Society 274. [27] Bailey-Harris (n18) 232. [28] E. Hitchings, ?The Impact of Recent Ancillary Relief Jurisprudence in the ?Everyday? Ancillary Relief Case? 22 Child and Family Law Quarterly 93 2010. [29] Ibid. [30] E. Cooke, ?White v White ? A New Yardstick for Marriage Partnership? [2001] Child and Family Law Quarterly 81. [31] (n3). [32] Miller; McFarlane (n3). [33] Gilmore and Glennon (n7) 201. [34] Miller; McFarlane (n 2) [10], [13], [16]. [35] Miller; McFarlane (n2) [6]. [36] [2007] EWCA Civ 503, [2007] FLR 1246 [121]. [37] Gilmore and Glennon (n7) 205. [38] (n35). [39] White (n2) [27] [40] J. Miles, Charman v Charman (No 4) ? ?Making Sense of Need, Compensation, and Equal Sharing after Miller; McFarlane.? 20 Child and Fam L.Q 378 (2008). [41] Millar; McFarlane (n3), Charman (n36). [42] Miller; McFarlane (n 3), [26], [27], [150]. [43] Miles (n40). [44] Cowan v Cowan [2001] 2 FLR 192. [45] (n41). [46] Jens M Scherpe, ?Matrimonial Causes for Concern? A Comparative Analysis of Miller; McFarlane.? (2007) Kings Law Journal. [47] ; L v L (Financial Provision: Contributions) [2002] 1 FLR 642. [48] Miller; McFarlane (n3). [49] Glenn Brasse, ?It?s Payback Time! Miller, McFarlane and the Compensation Culture? [2006] 36 Family Law 617. [50] CR v CR [2007] EWHC 3334 (Fam). [51] VB v JP [2008] 1 FLR 742. [52] (n3). [53] Miles (n40) 351. [54] Gilmore and Glennon (n7) 210. [55] Diduck (n26) 278. [56] Hitchings (n28). [57] Jones v Jones [2011] EWCA Civ 11. [58] Robson v Robson [2010] EWCA Civ 1171 [43]. [59] Bailey-Harris (n12) 230. [60] Cowan (n44). [61] Home Office, ?Supporting Families: A Consultation Document? (HMSO, 1998). [62] Law Commission, Matrimonial Property, Needs and Agreements: A Supplementary Consultation Paper (Law Com No 208, 2012). [63] Cowan (n44). ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree Family Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related University Degree Family Law essays

  1. Marked by a teacher

    The distinctions between void and voidable marriages serve no purpose in modern family law ...

    4 star(s)

    If co-habiting couples have the same rights as married persons, surely the idea of being married is becoming outdated? The grounds for nullity are often confusing and in some cases, unclear, and couples who co-habit have the same rights as married couples, why cause the courts unnecessary confusion?

  2. The present law governing cohabiting couples has been widely criticized; so much so that ...

    in the event of divorce. The scheme would be open to cohabiting couples, subject to necessary protections, to opt out of the operation of the scheme by written agreement, and to make their own financial arrangements which would be enforceable should they separate.

  1. Are cohabiting couples treated as if they were married? Critically review recent proposals to ...

    These qualifying contributions must lead to the applicant suffering an economic disadvantage, or the respondent retaining a benefit, as in Stack v Dowden [2007]18. The couple must also be in an intimate relationship, therefore cases such as Abbey National v Stringer [2006]19 would have fallen short of the criteria as it concerned a mother and son20.

  2. This essay will firstly address the similarities and differences between marriage and civil partnerships. ...

    The image of marriage would no longer act, 'as a haven from sexual hedonism' or, 'unrestrained carnal exploration' resulting in the undermining of the image of marriage.19 Rainscourt addresses other reasons for the legitimacy of the distinction, highlighting that the enactment of the CPA 2004, basically affords same-sex couples the

  1. Marriage in family law

    One of the functions of family law for many years has been the option to rear children and there is no other area of legislative reform that has seen such a dramatic change towards a reflection of the modern view of family than that of adoption and surrogacy.

  2. Surrogacy in New Zealand

    Whether this is appropriate in surrogacy arrangements is open to argument. The New Zealand position has been legislated for by the HART Act. The Act is aimed at prohibiting the commercialisation of the surrogacy procedure and preventing the exploitation of women, children and childless couples.

  1. Cohabitation - the need for legal reform

    Another argument is that the law of property, which cohabitants must use to determine property disputes, is unsatisfactory and their property rights should be determined by a family law, not a property law regime.[6] The central belief is that cohabitants are able to protect themselves against economic disadvantages through measures such as placing property in joint names.

  2. Free essay

    Discuss the Children Act's Welfare Principle. Section 1 of the Children Act 1989 ...

    Secondly, she argues that the individuals responsible for making the judgement are not educated enough to make an intelligent assessment of the child's welfare. Finally, the fact that in all other areas of law, judgements on existence is preferable, therefore the legislation is incoherent.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work