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. 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 and Miller; McFarlane 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’, due to the introduction of a mixed/no-fault divorce. Despite dissatisfaction from the ‘alimony drones’, 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,’ allowing for the foundations of fairness to begin to develop in the law.
Articles 24 – 26 MCO 1978, decree financial orders, for example interim orders. More so Article 27 introduces, firstly, consideration of the welfare of any relevant child, however this is not paramount, secondly to have regard to all circumstances of the case and thirdly to consider the possibility of a clean break, being that of an immediate clean break or fixed term periodic payments. Despite advancing the law through the removal of the minimum loss principle, this signalled an even more unpredictable discretionary system as it was not replaced by an alternative overriding objective. As for having regard for the welfare of a child, whilst keeping in mind a ‘clean break,’ these are two objectives, ‘which can pull in different directions.’ Undoubtedly this advances fairness, however, identified legal ambiguities allow for uncertainty, as no guidance is given on the importance of different criteria , thus, we must look towards judicial discretion in subsequent case law.
Statutory factors for consideration are dealt with in Article 27(2), here judges can have regard for a plethora of needs, including party conduct and physical or mental disability of each party, for example Article (2)(f) considers both financial and non-financial needs including any contribution of caring for the family or looking after the home. Through the recognition and complete reversal of female care-givers ‘original legal disempowerment’ this furthered the pursuit towards fairness, allowing a flexibility. However, this flexibility may allow indeterminacy. Evident within Article 27(2)(b) and the ‘Duxbury calculation,’ which calculated a lump sum which, if suitably invested, would produce enough income to meet the reasonable requirements of the recipient’s future, which emerged superior in the absence of an overriding principle. This ‘reasonable requirements’ approach continued to ‘assign a lower value to care-giving’, coupled with the lack of guidance given on the relative importance of the different criteria, left an uncertainty in the law despite the pursuit for fairness, which forced a turn to case law for guidance.