Law of the home: Ancillary relief Evaluation

The decision in White marked the first real attempt by the House of Lords (HL) to clarify the law and pursue fairness, by investing in s25 ‘with principle not appearing on the statute’s face’. White, involving a long marriage, was a ‘big money’ case were the available assets exceeded the needs. Prior to White the outcome was for many years dominated by the well-established ‘reasonable requirements’ approach, which emphasised a pragmatic approach to AR outcomes, setting the award’s ceiling value. The fairness of this approach was penalized and thus, in White, the HL created two principles of universality, being that of, non-discrimination and the yardstick of equality.

The first indicates that there is no place for discrimination between husband and wife and their respective roles i.e. the bread winner and the home-maker. With the second, shifting from ‘reasonable requirements’ to an end-of-assessment ‘yardstick’ of equal division, only to be disregarded upon good reason. At face value and in the context of ‘big money’ cases, the principles go a long way towards the ‘recognition of marriage as an equal partnership.’ Furthermore, the court recognised the ‘Duxbury Calculation’ as a useful took but not determinative, due to the ‘reasonable requirements’ producing unfair results. The HL also highlighted a move towards promoting fairness within family values, deriving from a politics of equality rather than ‘a politics of patriarchy,’ thus moving towards clarifying the law and placing a higher value on non-financial contributions.

However, despite the significant developments within White, the identification of fairness was recognised as a ‘concept of such self-evident generality,’ that its content in the individual case is dependent on judicial subjectivity,offering an uncertainty in the law due to the lack of guidance given. Moreover, despite identifying gender equality as a good starting point, when transferring the principle to lower money cases with less assets available, or shorter-term marriages, disjunction arises between rhetoric of principle and the reality of outcome.

Subsequently, post-White jurisprudence raised a whole host of further issues. Therefore, the HL attempted to tackle these issues in Miller; McFarlane in order to give more legal clarity and cement fairness. The two were both considered ‘big money’ cases, the former being a quick, childless marriage, and the latter was a 16-year marriage, containing 3 children, with the wife giving up a lucrative highflying career as a solicitor, by agreement. Reading the two decisions together, the ethos of the guiding principles in White have now been incorporated by the HL within three strands of fairness.These strands took account for the party’s needs, compensation for a spouse who has suffered economic disparity due to the conduct within the marriage and equal sharing of the financial assets. The attention to fairness, raises the bar for judgements with a significantly in depth look at fairness and its requirements, due to Lord Nicholls affirmation that one must be guided by principle and not ‘bespoke interpretations of fairness,’ emphasising a need to articulate and not deviate.

However, the judgement generated confusion within its three-strand approach to fairness, due to failing to guide the interaction of the strands. For example, what if the result produced is greater than the applicant’s needs? Or the applicant’s needs require more than the sum arrived at by the sharing principle? This lack of legal clarity was subsequently corrected within Charman which elevated equal sharing by raising the end-of-assessment yardstick to a ‘starting point’ principle, highlighting that through the criteria of fairness, needs should always be met and if equal sharing creates a bigger sum, the applicant receives the latter,  despite Lord Nicholls describing such as an overextension of judicial interpretive power.

However, despite an extent of legal certainty being established based on fairness, the scope of the equal sharing principle was a key point of contention in Millar; McFarlane, thus leaving subsequent cases to ‘cut through the undergrowth of conflicting judgements’ and attempt to give clearer guidance on various facts. This was with regards contention between the definition of matrimonial and non-matrimonial property due to the courts failure to agree on what constituted matrimonial assets. The HL agreed that inherited property and property brought into the marriage was non-matrimonial property. 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. Therefore, questions on scope of matrimonial property and when to depart from equal sharing where left unanswered for future occasion.

Further issue arose around the affirmation of ‘special contributions.’ It was clarified in order to depart from equal sharing their must be a ‘genius quality’ that created the wealth. 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,’ 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.

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? And to what point would a judge impose values on ‘subjective, non-pecuniary worth’ of different career fields. 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, 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. Thus, compensation for market sacrifices has now been established as an independent element award but the scope is unclear.

Despite some clarification of the AR law in Miller; McFarlane, things are still far from clear. With persistent uncertainties within differing judicial opinions, regarding principles as rules or guidelines, with cases incorporating different approaches, fairness and legal certainty are becoming blurred, and ultimately leading to resource consuming litigation. Whilst this ‘democratic equality discourse’ is favoured compared to the ‘discourse of traditional patriarchal family values’, too wide of a judicial discretion, ruling under persistent uncertainties may mean a ‘decent into chaos.’ Thus, one looks towards to potential scope of reform.

When considering reform, one is immediately drawn to the legal uncertainty, the conflicting views of judges, and the wide judiciary discretion within AR law, exemplified within cases being ruled with the established principles and others using them as mere guidelines to consider. Undoubtedly, the need for legislation would acknowledge ‘limitations of judicial law making’, whilst allow further progress and suitable legislation for those small assets cases, who cannot access the court system. Necessary adaption of the law in contemporary society can only be achieved through legislative change and cannot be granted by judges ‘without trespassing beyond their legitimate function.’ Despite reform being considered in 1998 and 2012, based on the grounds of introduction of overarching guidelines, and addressing uncertainty in the law, these issues have largely been put on the back burner seemingly lacking in governmental priority, with issues of Brexit dominating. I believe that the HL has struck a balance between fairness regarding non-discrimination and protecting property interests, however the judiciary seems to have reached their boundaries. Furthermore, legislative intervention is necessary to help small money cases and to set example of correct precedent within the courts.

In conclusion, the AR law is clearly developing towards fairness, yet persistent uncertainties remain. Whilst the HL has raised the issues of non-discrimination and fairness as primary concerns, through the aforementioned cases, uncertainties in their aftermath leave a confusion in the area, which leads to resource-consuming litigation which sucks the life out of the very assets being fought for, often leaving unfair settlements. I believe the judiciary has reached their limits, signifying a need for legislative reform, yet the current situation unfolding within the United Kingdom, with regards Brexit, means legislative reform may not be priority.

Bibliography:

Primary Sources:

• Family Law Act 1991

Kramarae C. and Treichler P. A, A Feminist Dictionary (Rivers Oram Press 1985).

• Matrimonial Causes Act 1939 (NI)
• Matrimonial Causes (NI) Order 1978 SI 1978/1045
• Smart C, The Ties That Bind (Abingdon: Routledge, 1984.)

Case-law

• Cowan v Cowan [2001] 2 FLR 192
• Charman v Charman [2007] EWCA Civ 503, [2007] FLR 1246
• CR v CR [2007] EWHC 3334 (Fam).
• Dart v Dart [1996] EWCA Civ 1343
• Jones v Jones [2011] EWCA Civ 11.
• Lawrence v Gallagher [2012] EWCA Civ 394
• L v L (Financial Provision: Contributions) [2002] 1 FLR 642
• Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 1 FLR 1186
• O’D v O’D [1976] Fam 83
• Page v Page (1981) 2 FLR 198
• Preston v Preston [1982] Fam 17
• P v P [2006] EWHC 3409 (Fam)
• Robson v Robson [2010] EWCA Civ 1171 [43].
• White v White [2001] 1 AC 596, [2000] 2 FLR 981.

Secondary Sources

• Gilmore S and Glennon L, Hayes and Williams’ Family Law (5th edn, OUP 2016).
• Herring J, Family Law (6th edn, Pearson 2015).
• Kramarae C. and Treichler P. A, A Feminist Dictionary (Rivers Oram Press 1985).

• Smart C, The Ties That Bind (Abingdon: Routledge, 1984.)

Journal Articles

Bailey-Harris R, ‘Dividing the Assets on Family Breakdown: The Content of Fairness’ [2001] Current Legal Problems 533

• ‘The Paradoxes of Principle and Pragmatism: Ancillary Relief in England and Wales’ (2005) 19 International Journal of Law, Policy and the Family 229

Barlow A, ‘Configuration(s) of Unpaid Caregiving within Current Legal Discourse in and around the Family’ (2007) 58 Northern Ireland Legal Quarterly 251

Barton C, ‘White v White and Co: The Not-So Well-Off and a “Balance of Need”’ [2012] Family Law 962

Brasse G, ‘White v White – A Return to Orthodoxy?’ [2001] 31 Family Law 167

Cooke E., ‘White v White – A New Yardstick for Marriage Partnership’ [2001] Child and Family Law Quarterly 81.

Cretney S, ‘Black and White’ (2001) 31 Family Law 3

Diduck A., ‘Ancillary Relief: Complicating the Search for Principle,’ [2011] Journal of Law and Society 274.

Fineman M, ‘Cracking the Foundational Myths: Independence, Autonomy, and Self-Sufficiency’, [2000] Journal of Gender, Social Policy and the Law 13

Hitchings E, ‘The Impact of Recent Ancillary Relief Jurisprudence in the ‘Everyday’ Ancillary Relief Case’ 22 Child and Family Law Quarterly 93 2010

 Miles J., Charman v Charman (No 4) – ‘Making Sense of Need, Compensation, and Equal Sharing after Miller; McFarlane.’ 20 Child and Fam L.Q 378 (2008)

 J. M., ‘Matrimonial Causes for Concern? A Comparative Analysis of Miller; McFarlane.’ (2007) Kings Law Journal.

Reports

Home Office, ‘Supporting Families: A Consultation Document’ (HMSO, 1998)

HL Deb 6 June 2006, vol 682, col 1137

Law Commission, Matrimonial Property, Needs and Agreements: A Supplementary Consultation Paper (Law Com No 208, 2012)