{"id":2932,"date":"2018-02-02T08:40:47","date_gmt":"2018-02-02T08:40:47","guid":{"rendered":""},"modified":"2019-07-17T16:58:59","modified_gmt":"2019-07-17T16:58:59","slug":"changes-to-marriage-law-examples","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/free-law-essays\/family-law\/changes-to-marriage-law-examples.php","title":{"rendered":"The Erosion of White v White? Changes to Marriage Law"},"content":{"rendered":"

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The front page headline of The Times<\/em> of 25th<\/sup> May 2006 trumpeted \u201cThe rewritten rules of marriage and divorce\u201d and declared:<\/p>\n

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\u201cAll couples were advised last night to sign prenuptial agreements before getting married after a landmark ruling that gives wives much bigger divorce settlements.\u201d<\/p>\n<\/blockquote>\n

This referred, of course, to the much-awaited decision of the House of Lords in Miller v Miller, McFarlane v McFarlane<\/em>[1]<\/sup><\/a>. However, while correctly acknowledging the seminal nature of the judgments, the print media advice in respect of prenuptial agreements probably remains as generally unhelpful as it had been hitherto.<\/p>\n

The principles according to which the court is required to divide marital assets following divorce are well-known: section 25 of the Matrimonial Causes Act 1925 directs that regards should be had to \u201call the circumstances of the case\u201d giving \u201cfirst consideration\u201d to the welfare, while a minor, of any child of the family who is under the age of 18. Thereafter and specifically, the factors listed in s.25(2)(a) to (h) must be weighed and applied with due regard being had to the desirability of achieving a \u201cclean break\u201d as stipulated by s.25A.<\/p>\n

Even the most na\u00efve of practitioners soon realises that a tidy academic balancing of those criteria is impossible in many cases since there will be insufficient assets to fund the comfortable metamorphosis of one household into two and the pre-eminent need to \u201ckeep a roof\u201d over the heads of the children of the family will most often militate in favour of a spouse (usually female) with care of those children irrespective of the operation of the other required statutory considerations.<\/p>\n

At the other end of the spectrum lies the less frequent \u201cbig money\u201d case where all the necessary stipulations can be fulfilled within the constraints of substantial family assets and still leave as surplus for equitable division. Such cases are equally, if not more problematic; White v White<\/em>[2]<\/sup><\/a> was such a case. Before amendment, s.25 required that the parties be placed as nearly as possible into the position that they would have enjoyed had the marriage not broken down. This was deleted in 1984 presumably on grounds of impracticality. Accordingly, White<\/em> was seen as important guidance as to replacing principles. In an oft-quoted passage, Lord Nicholls recommended the application after due consideration of the other factors of a \u201cyardstick of equality\u201d. Cooke[3]<\/sup><\/a> opines that this does not introduce equality as a presumption or even a starting point but that Lord Nicholls is saying:<\/p>\n

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\u201c\u2026in each case, the judge must ask himself, \u2018why not an equal division?\u201d.<\/p>\n<\/blockquote>\n

Doubt was cast upon the force of this approach in Cowan v Cowan<\/em>[4]<\/sup><\/a> in which the Court of Appeal substantially increased an award to wife preferring \u201cfairness\u201d that would be achieved by application of the s.25 criteria particularly in situations in which there would otherwise be discrimination against the wife as \u201chomemaker\u201d.<\/p>\n

However, a blow in the other direction was struck in Lambert v Lambert<\/em>[5]<\/sup><\/a> in which the Court of Appeal rejected claims of a \u201cspecial contribution\u201d by one spouse to the family wealth in anything other than highly exceptional cases and once again stressed the need not to denigrate the contribution of the \u201chomemaker\u201d by comparison with that of the \u201cbreadwinner\u201d. A 50% division was held on appeal to be appropriate.<\/p>\n

Nonetheless, courts of first instance have been willing to find such exceptions as exemplified by Sorrell v Sorrell<\/em>[6]<\/sup><\/a> in which Bennett J was prepared (at para.17) to find a \u201crare, if not unique, combination of inspiration, innovation, courage and hard work\u201d. Again, however, the place of this particular set of family circumstances in the ancillary relief cosmos should be noted (para.126): the wife who was \u201cdiscriminated against\u201d would have had to spend at the annual rate of \u00a31.06 million until the age of 88 in order to exhaust the provision made for her!<\/p>\n

The conjoined appeals from the Court of Appeal decisions in Miller<\/em>[7]<\/sup><\/a> and McFarlane<\/em>[8]<\/sup><\/a> were heard by the House of Lords in January\/February this year with judgments being delivered on 24th<\/sup> May 2006. The decision has provoked a near-hysterical reaction from supporters of the industrious husband against the spendthrift wife and reinforced the concept of working against the so-called discrimination against the homemaker. Detailed rehearsal of the facts of these appeals is not possible within anything like the word limit allocated hereto and given the novelty of this ruling more mature analysis by commentators than that at the opening hereof is awaited. However, it is significant that in Miller<\/em> a substantial award to the wife was upheld against challenge despite the brevity of the marriage (less than 3 years). While it was commonly accepted that the significance of the financial contributions made by each party to a marriage would become eroded by years of joint marital endeavour, the defence of the allocation of so high a proportion of assets after such a short marriage is relatively novel and despite the somewhat \u201ctongue in cheek\u201d assertion by Baroness Hale (at para. 146 that \u201ca domestic goddess self-evidently makes a \u2018stellar\u2019 contribution\u201d, the upholding of an award to Mrs Miller of some \u00a35m represents a significant lurch toward Lord Nicholls\u2019 equality yardstick. Similarly, in the case of Mrs McFarlane, the fact that not only was maintenance of some \u00a3250,000 per annum upheld but a previous cap upon the period for which she would receive such contributions (5 years) removed propels such cases far beyond a limitation on the grounds of need. Lord Nicholls acknowledged (at paras.98-9) that such a figure \u201csubstantially exceeds the wife\u2019s needs\u201d but asserted:<\/p>\n

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\u201cHer compensation claim is not needs-related; it is loss-related.\u201d<\/p>\n<\/blockquote>\n

It may therefore be concluded that the ultimate outcome of the Miller\/McFarlane<\/em> litigation, while not necessarily supplying an express endorsement of White<\/em> principles is certainly a body-blow to any suggestion that they are subject to continued erosion. Conversely, media claims that the decision spells the death of marriage and the ascendancy of the pre-nuptial agreement are overstated when regard is had to the rarefied financial climate of these cases and the traditional opposition of this jurisdiction to the concept of such agreements irrevocably displacing the tried and tested s.25 criteria.<\/p>\n

Bibliography<\/span><\/p>\n