The law should promote financial equality in ancillary proceedings following divorce

        Prior to the White case, the courts were to follow the principles which were laid down in the Dart case, i.e. 'reasonable requirement' principles. Before the Dart case, the courts followed a strict mathematical approach in calculating ancillary relief which are often inappropriate when dealing with cases which dealt with large sums or assets. The courts held that the principle of reasonable requirements were more extensive than needs. Butler-Sloss LJ held that if spouses are in business together, the traditional 'reasonable requirements' approach to a wife's application for ancillary relief is not the most appropriate method to arrive at the post-divorce adjustment of family finances.

        It is necessary for the courts, nowadays, to decide each case with the 'yardstick of equality' principle in mind, if there are sufficient funds to meet the needs of each of the parties. Althought it is advised for the courts to follow the 'yardstick of equality' principle, the yardstick was 'intended as 'an aid, not a rule'' as emphasised by Lord Nicholls in Miller; McFarlane. This is necessary to mention as not all couples are able to afford separate lives. In today's society and economic recession, many find it difficult to afford separate lives apart and live in separate homes. Despite the 'yardstick of equality', the courts can choose to depart from the equality principle on the basis of 'good reasons'.

        In today's economic recession, it is rare not to find a good reason to depart from the equality principle. However, there are circumstances in which the court may find it appropriate to depart from the equality principle such as: the needs of the parties, extraordinary contribution, inheritance and inherited property to name a few. In cases where couples lack adequate assets to meet the basic needs of both children and primary, the court is allowed to depart from the equality principle as it would burden the primary child carer. The equality principle, in this sense, would only apply to cases where the couples are very rich as enough assets would be provided to meet each parties' basic needs.

        However, even in cases where the couples are rich, the courts may find some reasons to depart from equality such as that of extraodinary contributions. This was such in the case of Cowan v Cowan. The wife argued on the basis of the House of Lords' judgement in the White case that she was entitled to equality and an increase in the lump sum award from ￡2.7m to ￡4.6m. The husband argued that the objective in all cases remained fairness, not equality. Furthermore, there were adequate consideration for the court to justify a departure from equality as the Court of Appeal suggested that the husband's contribution was 'really special'. This gave the husband more than 50 per cent of the assets recognising his extraordinary contribution to the marriage.

        Following that, Charman v Charman established a further principle within the equality principle first established in the White case. In Charman v Charman, the Court of Appeal upheld the decision of the trial judge in ancillary relief proceedings to make orders leaving the wife with￡48 million. It was held that the property should be shared in equal proportions unless there is good reason to depart from such proportions. Although the Court of Appeal refused to set a figure at which it would be said that the contribution was special, but state that where the contribution did justify a departure the maximum departure would be to a 66/33 division and the minium 55/45.

        The case of J v J further eatablishes the circumstances where the courts can depart from the equality principle. Charles J held that “in my view any departure from equality within the sharing principle for good reason in respect of the assets subject to the s. 25 exercise has to be based on (a) pre-acquired or gifted assets and/or (b) the increase in value of the company after separation”. It was also held that post-separation gains or enhancement in the value of assets may also provide a good reason for the courts to depart from equality within the application of the sharing principle.

        However, it can be difficult to apply the White, Miller and McFarlane to all cases as the couples in all three cases had an adequately large number of assets to divide the assets equally between each parties. 'The case law has established that a spouse cannot expect the state to meet his or her liability towards the other spouse. The problem is that if a spouse is on benefits and receives maintenance this can lead to a reduction in the level of benefits and hence there will be little practical gain in receiving the maintenance. If the wife is on benefits and the husband is on low pay, there is a danger that any maintenance order will mean that the husband will see no benefit in working and the wife will not gain financially from the order'.

        This was illustrated in the case of Ashley v Blackman, where 'the wife was a 48-year-old schizophrenic on state benefits and the husband was a 55-year-old on income of ￡7,000 per annum. The judge thought it was important to allow the husband to see the 'light at the end of the tunnel' and be spared paying the few pounds that separated from penury as there was no corresponding benefit to the wife. In Delaney v Delaney, whereby the husband was left with insufficient income to pay his mortgage and support his new cohabitant after the divorce. The Court of Appeal balanced the availability of state benefits and the husband's need to support his new cohabitant. The court thought it was important to be aware that there was 'life after divorce'.

        The case of Lyons v Lyons ilustrates the difficulties encountered in achieving a fair settlement in achieving financial equality and fairness in today's economic situation while seeking to achieve a clean break where possible. At first instance, the capital was divided broadly equally. A charge of ￡1.34m given to the bank by the husband over commercial property owned by the wife was order to remain in place. The order included provision for the husband to use his best endeavours to procure the release of the wife's property from the charge. The Court of Appeal held that such an arrangement was inconsistent with a clean break, since the husband's undertaking was unlimited in time and required him simply to use his best endeavours. The court substituted an order that limited the husband's undertaking to a two year period. The husband was granted liberty to apply should there be a change of circumstances.

        Although the courts try to equally distribute the parties' property, there are some factors which hinder the court from doing so. Although the case of White v White established the 'yardstick of equality' promoting financial equality in ancillary proceedings, the court often are unable to apply the 'yardstick of equality' to those of lower and working class citizens as it eventually burden either party such as that in Delaney v Delaney.

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