Miller (Appellant) v. Miller (Respondent) and McFarlane (Appellant) v. McFarlane (Respondent)
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Miller (Appellant) v. Miller (Respondent)
McFarlane (Appellant) v. McFarlane (Respondent)
 UKHL 24
LORD NICHOLLS OF BIRKENHEAD
The requirements of fairness
Matrimonial property and non-matrimonial property
Periodical payments and the clean break principle
The Miller marriage
The hearing before the judge
The judge concluded that a global award equivalent to £5 million, plus the agreed furniture and other goods, was a fair outcome irrespective of whatever value the husband might in due course achieve for the New Star shares.
The hearing in the Court of Appeal
The pre-White short marriage cases
Mr Miller's appeal
The McFarlane marriage
The hearing before the District Judge
The appeals to the judge and the Court of Appeal
Mrs McFarlane's appeal
LORD HOPE OF CRAIGHEAD
The Scottish approach to fairness
In para 35 the Law Commission, who were no doubt well aware of what the Scottish Law Commission were proposing, acknowledged that it was clearly desirable that the laws between these two parts of the United Kingdom should be based on the same principles. But they went on to say that they did not think that it necessarily followed that the English and Scottish laws governing the financial consequences of divorce should be couched in identical terms.
The risk of injustice
The clean break principle
This rule is reinforced by section 13(2)(a), which provides that the court shall not make an order for a periodical allowance under section 8(2) of the Act unless the order is justified by a principle set out in paragraph (c) (the economic burden of caring for children), (d) (financial support for no more than three years) or (e) (likelihood of serious financial hardship) of section 9(1). Paragraph (b) (fair account to be taken of economic advantages and disadvantages) is omitted from this list. Section 11(4) sets out various factors to which the court shall have regard for the purposes of section 9(1)(d), including all the circumstances of the case: section 11(4)(e). But it does not allow the court to override the three year limit. It excludes compensation aimed at redressing a significant prospective disparity between the parties arising from the way they conducted their marriages.
Scots law in need of reform
BARONESS HALE OF RICHMOND
The search for principle
Three pointers in the 1973 Act
This applies to the whole range of the court's powers, not just to the power to award future periodical payments. It assumes that the court has decided that some award is appropriate (in practice, there are very few cases in which some readjustment of the parties' strict proprietary rights is not required, if they cannot agree it, in order to disentangle their previously entangled affairs). The court is then required to consider whether it could achieve an appropriate result by bringing their mutual obligations to an end. This is a clear steer in the direction of lump sum and property adjustment orders with no continuing periodical payments. But it does not tell us much about what an appropriate result would be.
I assume that the reference to "such a case" is to a case in which the court has decided to exercise its powers under the listed sections rather than to a case in which it has decided that it would be appropriate to exercise those powers so as to terminate the parties' financial obligations as soon as possible after the decree. If it decides to make a periodical payments order, it must consider how quickly it can bring those payments to an end. It has therefore to consider fixing a term, although in doing so it must avoid "undue hardship". This is linked to two other powers: section 28(1) allows the court to specify the duration of a periodical payments order; generally, it is open to the recipient to apply to extend the term, provided this is done before it expires; but section 28(1A) gives the court power to prohibit any application for an extension. If there is an application for an extension, the court has the same duty to consider bringing the periodical payments to an end as soon as possible: section 31(7); and it now has power to order a lump sum, property adjustment or pension sharing instead: section 31(7B). Thus if there were not the capital resources to achieve a clean break at the outset, it may be achieved later if sufficient capital becomes available.
White v White
The rationale for redistribution
The ultimate objective?
Conduct and contributions
A domestic goddess self-evidently makes a 'stellar' contribution, but that was not what these debates were about. Coleridge J's words were rightly influential in the later retreat from the concept of special contribution in Lambert v Lambert  EWCA Civ 1685;  Fam 103. It had already been made clear in White v White  1 AC 596 that domestic and financial contributions should be treated equally. Section 25(2)(f) of the 1973 Act does not refer to the contributions which each has made to the parties' accumulated wealth, but to the contributions they have made (and will continue to make) to the welfare of the family. Each should be seen as doing their best in their own sphere. Only if there is such a disparity in their respective contributions to the welfare of the family that it would be inequitable to disregard it should this be taken into account in determining their shares.
The source of the assets and the length of the marriage
Prime examples of family assets of a capital nature were the family home and its contents, while the parties' earning capacities were assets of a revenue nature. But also included are other assets which were obviously acquired for the use and benefit of the whole family, such as holiday homes, caravans, furniture, insurance policies and other family savings. To this list should clearly be added family businesses or joint ventures in which they both work. It is easy to see such assets as the fruits of the marital partnership. It is also easy to see each party's efforts as making a real contribution to the acquisition of such assets. Hence it is not at all surprising that Mr and Mrs McFarlane agreed upon the division of their capital assets, which were mostly of this nature, without prejudice to how Mrs McFarlane's future income provision would be quantified.
Application in the McFarlane case
Application in the Miller case