With the provisional divorce rate at fourteen divorces per one thousand married couples1, ancillary relief proceedings are playing an important role in dealing with financial and property divisions upon marital breakdown. The decision by the House of Lords in White v. White2 changed the approach to assessing financial settlements on divorce, and introduced the 'yardstick of equality' as a means to ensure fairness in the division of assets between divorcing couples.
This essay will discuss the decision in White and its impact on ancillary relief cases and the effect of 'duration of marriage' on this 'equality' mechanism. This area of law is governed by the Matrimonial Causes Act 1973. When the court is making decisions with regard to property and financial claims the MCA 1973 s25 provides a checklist of factors to assist the court in making its decision. However, as encapsulated by Thorpe L. J. in Cordle v.
Cordle3, s25 of the Act is to apply to all circumstances of the case but giving first consideration to the welfare of children and to arrive at a fair result. Section 25 of the Act since its amendment in 1984 however expresses no obvious objective, and the extensive range of 'all circumstances' which the court is required to undertake does not essentially give clear guidance as to the principles on which the court is to act. This absence of a definitive aim becomes significant in situations where there are no minor children in the family, meaning no first consideration under s25(1).
Inevitably this has lead to a width of discretion which has resulted in diversity to the judicial approach. This was observed by Sacrman L. J. in the case of Trippass v. Trippas4 in which he stated: "The complete flexibility of approach that the act… emphasises – all the circumstances of the case". The judicial formulation of the aim to be implied in s25 is that of achieving a fair outcome. Moreover, non-discrimination between husband and wife in evaluating their contributions to family welfare in their respective roles.
However, Lord Nicholls in White stated that: "Fairness like beauty is in the eyes of the beholder". Before the landmark case of White courts in ancillary relief cases adopted was then the well established 'reasonable requirements' approach. This practice involved the idea that the wife (as it usually was) in such circumstances should recover more than the bare minimum, more than her 'needs, but not more than her 'reasonable requirements'5. The problem with this approach was that it was independent of how wealthy the husband was.
For instance, in F v. F6 where after a ten year marriage the wife who had married a man worth 150-200 million received only 9 million. The 'reasonable requirements' approach was widely criticised for its injustice as it seems to devalue non-monetary contributions to the marriage and in practice was discriminatory against women, basing decisions on out-dated social standings. White v White involved a husband and wife who divorced after thirty-four years with combined assets of some 4. 5 million, mainly in farms (one jointly owned, the other by the husband alone) that they had run together. At first the trial judge Lord Hoffman applying what was then the well established 'reasonable requirements' awarded Mrs White just i1 million.
The Court of Appeal increased her awarded to 1. 5 million, with Thorpe L. J. identifying the farming partnership as the central feature, with considerations of contributions and overall fairness relevant.
The case eventually went to the House of Lords where Lord Nicholls asked: "Why should the assets built up during a marriage become immaterial once the reasonable requirements of the wife are assessed, and the surplus remain with the husband? " Then the House of Lords emphasised the width of discretion conferred by s25 and went on with Lord Nicholls stating a principle of non-discrimination and equal value in respect of different contributions to the welfare of the family.
He translated the non-discriminatory idea into a practical outcome in ancillary relief proceedings, formulating the yardstick of equal division of assets against which a provisional award should be checked. He alleged that a judge in exercising his statutory discretion under s25 should check his tentative views against the yardstick of equal division departing from that if and only if there are good reasons for doing so. This decision produced both academic and professional debate.
It was perceived as a step towards the recognition of marriage as an equal partnership. The decision signalled the abandonment of the 'reasonable requirements' ceiling on a wife's award in cases involving 'big money'. An approach that was considered by the Court of Appeal in 1996 in Dart v Dart 7as an approach; "So established that only Parliament could displace it". Since the decision in White there have been numerous cases which illustrate the importance of the application of the 'yardstick of equality'.