Fairness in ancillary relief

Catherine Williams,

Reader in Law, Sheffield University

c.williams@sheffield.ac.uk

and

Garfield (Gary) Potter,

Lecturer in Criminology, Queen’s University Belfast

g.potter@qub.ac.uk

Copyright © Catherine Williams and Garfield Potter 2007
First published in the Web Journal of Current Legal Issues.

Summary

This article stems from setting student projects. It describes in detail the outcome of a project designed to ascertain the views of the public in relation to ancillary relief and what they consider to be a ‘fair’ outcome. The rationale for undertaking student projects has been discussed at length in another article and is therefore only alluded to here. The discussion centres around the law, findings and outcome of the project. Students studying the Family Law course at Sheffield University were required to survey members of the public in order to gather their views on the division of assets on divorce and then to analyse the public’s response in light of the seminal decision of the House of Lords in White v White [2000] UKHL 54; [2001] 1 AC 596.

Contents

Bibliography

Introduction

This article discusses the issue of ancillary relief on divorce. Public views as to fairness in the division of assets on divorce cases were sought via interviews conducted by students as part of their assessment in a university family law module. In particular the research considered how the general public viewed the division of assets in a range of scenarios. An analysis and discussion of the results of the survey is undertaken here. The methodology, and justification for using such a methodology, have been discussed in detail in another article in the Law Teacher (Potter and Williams 2007). Consequently only a brief consideration of the rationale and methodology is detailed here.

The decision of the House of Lords in White v White [2000] UKHL 54; [2001] 1 AC 596 in 2000 aroused considerable public interest in the division of assets on divorce. Renewed interest in ancillary relief settlements has recently been further generated by the very high profile cases of Julia McFarlane and Melissa Miller, culminating in the decision of the House of Lords in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24; [2006] 3 All ER 1, the High Court decision of Mr Justice Coleridge awarding Mrs Charman £48 million (Charman v Charman [2006] EWHC 1879 (Fam)) and, of course, the ongoing interest in the Paul McCartney, Heather Mills McCartney divorce. It is therefore particularly timely, in the light of these recent high profile cases, to consider ancillary relief in more ‘ordinary’ cases, that is not cases involving the super rich, but ones where the parties are simply ‘comfortably off’.

It was the decision of the House of Lords in White, which was greeted as establishing a fundamental change of approach in ancillary relief cases, which was the impetus which led to setting of the Family Law project which is under discussion here. On an ancillary relief application the Matrimonial Causes Act 1973, section 25(2)(a-h), specifies an array of matters to which the court must have regard. However, there is no hierarchical value attached to any of the factors (see Lord Hoffman in Piglowska v Piglowski [1999] UKHL 27; [1999] 1 WLR 1360 at p.1379). Rather, as pointed out by Lord Nicholls in White: “The weight, or importance, to be attached to these matters depends upon the facts of the particular case.” (At p.608) As a result although this open-ended approach allows a court to strive “to do justice in each individual case” (see Law Society 2003, at paragraph 59) what it means, and what case law demonstrates, is that “different judges [can] come to quite different conclusions on similar facts.” (Ibid at paragraph 63)

In a large number of cases, because the courts are required to consider the needs of the parties under section 25(2)(b), this has meant, and post-White continues to mean, concentration on giving primacy to needs. Where resources are limited the courts must simply try and come up with as equitable a solution as they can, given that fundamentally there is often not really enough to go round when a couple with ‘normal’ assets get divorced. However, in those cases where the parties are more comfortably situated and where assets exceed requirements, the needs of the parties has assumed a dominance over other factors in a rather different way, as need has been interpreted as meaning the ‘reasonable requirements’ of the parties. This led the courts in the past to protect the assets of wealthy men by limiting the amount awarded to the wife. Typically the case law has involved situations where the wealthy party on a divorce has been the man and his wife has been claiming a share of ‘his’ assets. (See, for example, Browne v Pritchard [1975] 1 WLR 1366; Dart v Dart [1996] 2 FLR 286; Duxbury v Duxbury [1987] 1 FLR 7.) Using the Duxbury formula the courts calculated the home maker’s reasonable requirements and once those had been satisfied any remaining capital surplus reverted to the money earner. This led to the ‘Duxbury paradox’ whereby the longer the marriage, the smaller the capital sum needed to secure lifetime maintenance and the less the husband had to pay. This approach was brought to a halt by the House of Lords in White, which instituted a change of approach in cases involving ‘excess’ assets. Furthermore, and more widely, the House of Lords also attempted to offer general guidance as to how the court should deal with the wide discretion which Parliament has conferred upon them in the Matrimonial Causes Act 1973.

In his leading judgment in White Lord Nicholls made some important observations and statements of principal. In particular he said:

“But there is one principle of universal application which can be stated with confidence. In seeking to achieve a fair outcome, there is no place for discrimination between husband and wife and their respective roles … whatever the division of labour chosen by the husband and wife, or forced upon them by circumstances, fairness requires that this should not prejudice or advantage either party.” (At p.605)

The Research Project

It was in the light of the decision in White that the project was set. The question students were asked to investigate was, once the hurdle of sufficient assets to go round has been surmounted and there is an ‘excess’ available for distribution, do the general public embrace the concept of equality? Do they really think that the homemaker is providing as much ‘value’ in a marriage as the traditional breadwinner earning a good salary? Does an inheritance make any difference? Does conduct affect their views?

Approximately 250 students undertook the research. As it was part of their assessment the students clearly had to undertake the research. What was particularly pleasing was that the students thoroughly enjoyed doing it, many of them commenting on the fact that it was the ‘best’ piece of work they had had to do. Furthermore, they were delighted to be told that their research was being written up. That made the work, for them, extra worthwhile. The students were divided into groups of eight and advised that there were eight main categories of respondent whose views should be recorded: single men and women; cohabiting men and women; married men and women; and divorced men and women. The students were also told that within that obvious grouping there are a lot of possible sub-groups. For example, religious people; ethnic minority groups; gay/lesbian people; people over 70; people with/without children; etc. They were therefore told that each person in the group should aim to have a different main target group and the only restriction if they had a sub-group was that it had to be a sensible grouping. Each student within the group of eight was then required to choose one each of the target groups and then obtain 10 target respondents who fitted their chosen category. In this way a stratified sample of over 2,500 respondents was obtained dividable into the eight major demographic groups mentioned.

Students were required to interview their respondents using an interview schedule and following training guidelines provided by the course co-ordinator. The interview schedule consisted of two sections. The first section dealt with some basic demographic information – age, gender, occupation and marital status of the respondent and also whether or not the respondents had children. The second section of the interview schedule consisted of a series of divorce scenarios for which respondents were asked their views relating to the fair division of assets. These scenarios are reproduced in the findings section of this article.

Students were given a training session on structured interviewing as well as being provided with written instructions and copies of the questionnaire to be used. Within the stratification outlined above students were encouraged to undertake opportunity sampling. Given that this project involved students at a Russell Group university it is very likely that there is some bias towards middle-class, educated respondents. However with the stratification and the large sample size it seems fair to say that sufficient respondents from a full range of socio-demographic backgrounds were accessed to make some analysis and interpretation of results meaningful. It should be remembered, however, that the sample is not random, and that the data was collected by relatively inexperienced researchers. Although safeguards were in place to guard against ‘cheating’ or other inaccuracies in data collection (see below, and detailed further in our methodology article as mentioned earlier) the data should not be taken as perfect. Nevertheless it is accepted that, particularly in research that aims to be exploratory and largely descriptive (such as this), information obtained from slightly flawed methods is better than no information at all. The results discussed below are indicative of the range of views to be found in the population and of how these views relate to socio-demographic variables but care should be taken in interpreting the statistics. Statistics are representative of the sample, but the sample is not necessarily representative of the population at large.

The Sample

2153 useable questionnaires were returned. Some questionnaires were rejected due to incompleteness, illegibility, inconsistency of research method or because responses seemed odd in some way. Around half (48.9 per cent) respondents were male and half (51.1 per cent) female. Age was less evenly represented, with nearly half of the respondents (47.2 per cent) being aged between 19 and 29. This is probably in part a function of using student researchers, as many students would have recruited their peers. But, it is also likely to have been influenced by the sampling guidelines. It is likely, for example, that co-habiting respondents would have been predominantly drawn from the younger age groups. In total 22.1 per cent of respondents fell into the 16-21 year-old band, 25.1 per cent into the 22-29 band, 13.9 per cent were aged 30-39 years, 19.7 per cent 40-49 years, 14.4 per cent 50-59 years and 4.8 per cent were aged 60 years or over (n=2151, 2 respondents gave no age). In terms of employment three-fifths (59.1 per cent) of respondents were employed (including self-employed). Nearly one third (30.3 per cent) were students. 4.2 per cent were retired, 2.9 per cent were ‘homemakers’ (those citing occupation as ‘parent’, ‘housewife’, ‘househusband’ or similar) and 0.8 per cent were unemployed. The remaining 2.6 per cent were of ‘unknown’ occupation. These were excluded from later analysis. Roughly one third (31.8 per cent) of respondents were single, one third (31.6 per cent) were married and a quarter (23.8 per cent) were cohabiting. One-tenth of respondents (10.9 per cent) were divorced, 22 individuals (1.0 per cent) reported themselves as ‘separated’ and 18 (0.8 per cent) as widowed. It will be seen from these results that the attempt to stratify the sample by marital status was moderately successful. Sufficient representation was drawn from all four of the main groupings (‘single’, ‘married’, ‘cohabiting’ and ‘divorced’) for meaningful analysis. Finally, just under half (45.4 per cent) of the respondents had children.

Findings: Research Outcomes and the Law

There were three scenarios in the questionnaire, each having a question attached to it. Respondents were then given a choice as to their preferred answer with a space for them to give their reasons. The scenarios and questions are reproduced exactly here. Each is then followed by a consideration of the current legal position for each scenario in conjunction with a quantitative break down of responses and a discussion of these responses.

Situation 1

The law

It is, of course, recognised that in real life matters are frequently much more complicated and people’s assets are not so easily parcelled up in this way. However, the aim was to provide the respondents with a clear scenario so that they could reply on the basis of their fundamental principles. After White, on the basis of the information given, it would appear almost without a doubt that any court provided with the given scenario would respond by deciding on a 50:50 split between the parties. Taking the words of White, ‘in seeking to achieve a fair outcome, there is no place for discrimination between husband and wife and their respective roles,’ there would be no obvious reason in the given scenario to depart from equal division. In fact, if anything the wife should get slightly more than the husband, in that the scenario includes some personal items as opposed to marital assets i.e. the jewellery. This, theoretically, should be separated out from the rest of the assets and simply taken by her. (For the treatment of jewellery see recently G v G (Matrimonial Property: Rights of Extended Family) [2005] EWHC 1560 (Admin); [2006] 1 FLR 62 at [120]–[128].)  

The articulation in White of non-discrimination as being a ‘principle of universal application’ certainly reflects the growing awareness of the value of non-financial contributions. It is not surprising, therefore, that White was hailed as ‘the most radical family law finance decision of our generation’ (see Hodson, Green & de Souza 2003). Nevertheless, as Lord Nicholls acknowledged, fairness may be viewed differently by different people and thus there is a necessity to construe fairness in a contemporary context. That led him to make the comment that in making an order ‘a judge would always be well advised to check his tentative views against the yardstick of equality of division.’ (At p.605) Lord Nicholls emphasised that this is not to advocate a presumption of equality of division, nor is it a starting point, but it is merely a processual safeguard ensuring fairness. Nevertheless, it is evident that the fundamental basis of the decision is that equality should now govern the courts’ thinking.

It is therefore somewhat ironic that White itself did not lead to an equal outcome. In a letter to The Guardian newspaper, written by Mrs White shortly after the landmark decision was handed down, she said:

“With reference to reports on White v White I wish to state that I am saddened, disappointed and astonished that none of the judges, including those in the House of Lords, has awarded me one of the two farms which represent the life’s work of myself and Mr Martin White during our marriage and formal business partnership since 1961.”(White 2000)

In view of the fact that, as the judgment outlines, Mrs White had been married for 33 years, came from a farming family herself, had worked hard in all sorts of ways on the farm and was largely responsible for bringing up the children, the failure to award her a 50 per cent share, including one of the two farms, could certainly be said to be ‘unfair’. The explanation for this apparent discrepancy between what was being said and the ultimate outcome of the case lies in the fact that over the years Mr White’s father had assisted the couple with some fairly substantial capital assistance. This led to Mr White gaining a greater share of the assets overall. But it is this outcome, and other factors, that leads one to conclude that the decision was not coherent in its own analysis of the situation.

After White was decided there was a considerable amount of judicial activity, as lawyers grappled with exploring the bounds of the decision. In particular, the issue arose as to whether it was always the case that domestic contributions must be valued equally with financial contributions or whether there were exceptions to the rule. The decision of the Court of Appeal in Cowan v Cowan [2001] EWCA Civ 679; [2001] 2 FLR 192 appeared to supply the answer. Stemming principally from the judgment of Manse LJ Cowan was said to have opened Pandora’s box (see G v G (Financial Provision: Equal Division) [2002] EWHC 1339; [2002] 2 FLR 1143 at [34]). The critical paragraph that led to this claim was one where Manse LJ commented:

“The underlying idea is that a spouse exercising special skill and care has gone beyond what would ordinarily be expected and beyond what the other spouse could ordinarily have hoped to do for himself or herself, had the parties arranged their family lives and activities differently.” (At [161])

The impact of Cowan and other similar cases (see N v N (Financial Provision: Sale of Company) [2001] 2 FLR 69; Dharamshi v Dharamshi [2001] 1 FLR 736; L v L (Financial Provision: Contributions) [2002] 1 FLR 642) led to a series of cases where husbands came to court arguing that they had made an exceptional, or stellar, contribution to the family assets and thereby deserved more on any division.

However, this line of reasoning was questioned in H-J v H-J (Financial Provision: Equality) [2002] 1 FLR 415, H v H (Financial Provision: Special Contribution) [2002] 2 FLR 1021 and G v G (Financial Provision: Equal Division) [2002] EWHC 1339; [2002] 2 FLR 1143, all of which emphasised the merits of formal equality. In H-J v H-J Coleridge J held that a merit-based analysis of contributions aimed at departing from equality was not justified and subsequently in G v G (Financial Provision: Equal Division) when the husband attempted a ‘special contribution’ argument, it was this that led Coleridge J to equate the assessment of contributions to the opening of a ‘forensic Pandora’s Box’, which he said is tantamount to discrimination.

“Unfortunately, this has led to this concept becoming the centrally important issue in almost every case particularly where the assets exceed the parties' reasonable needs. Hardly a case is heard nowadays but that one party (usually the husband) seeks to establish that he has played a markedly more valuable part in the accumulation of the wealth and the marriage partnership so that he should be specially rewarded by way of a greater share of the assets. I wonder whether, with respect to the members of the Court of Appeal in Cowan v Cowan, they would have made the extensive remarks they did (about the possibility of a special contribution) if they had realised the forensic Pandora's box that would be opened in actual practice.” (At [34])

The cases on special contribution culminated in the Court of Appeal judgment in Lambert v Lambert [2002] EWCA Civ 1685; [2003] 1 FLR 139. In approving the approach in H-J v H-J the court ordered an equal division. It was held that section 25(2)(f) “… does not suggest any bias in favour of the breadwinner. There must be an end to the sterile assertion that the breadwinner’s contribution weighs heavier than the homemaker’s.” (At [38]) Thorpe LJ recognised discrimination is inherent in measuring contributions by reference to conventional gender roles, as there is no opportunity for the homemaker to demonstrate her comparable success. He thus reframed the concept of formal equality by defining domestic and financial contributions as of equal value. Thorpe LJ commented ‘I am much more wary of the issue of special contribution than I was in writing my judgment in Cowan v Cowan.’ (At [46]) Consequently, it was hailed as ‘a major step towards the recognition of a long marriage as a partnership of equals’ (see Bailey-Harris 2003a). It therefore appears that the Court of Appeal had largely closed and locked the lid on Pandora’s Box (see Marshall 2003) and this has subsequently been confirmed by the House of Lords in Miller; McFarlane. Here Lord Nicholls commented:

“Parties should not seek to promote a case of ‘special contribution’ unless the contribution is so marked that to disregard it would be inequitable. A good reason for departing from equality is not to be found in the minutiae of married life.” (At [67])

However, for a recent decision where the husband’s exceptional contribution was recognised by the court, thus leading to the wife getting a smaller share, see Sorrell v Sorrell [2005] EWHC 1717; [2006] 1 FLR 497.

The findings

Quantitative results

The vast majority of respondents (84.8 per cent) favoured Pamela’s proposal with the remainder (15.2 per cent) supporting Martin. Perhaps unsurprisingly the level of support varied significantly (p<0.001) by the gender of the respondent. (Quoted p values are derived from a cross-tabulation employing a chi-squared test using SPSS ) 91.3 per cent of women supported Pamela whereas only 78 per cent (still a three-to-one majority) of men did so. When tested against age groups again a significant (p<0.001) relationship was found with support for Pamela peaking at 89.9 per cent amongst 40-49 year olds tailing off to 82.5 per cent for those over 60 (the oldest group) and to 81.3 per cent for those aged 16-21 (youngest); the other results being 22-29 years old at 81.7 per cent for Pamela; 30-39 year olds at 84.9 per cent; 50-59 year olds at 89.4 per cent. Whether or not the respondent had children was also significant (p<0.001). 88.8 per cent of those with children supported Pamela compared to 81.5 per cent without. Marital status of respondents was also significant (p<0.001) most strikingly 100 per cent of separated respondents supported Pamela (although there were only 22 of these individuals altogether, 8 Male and 14 Female) as did 89.6 per cent of those who were married. However it should be noted that, due to the small number of separated respondents, no meaningful interpretation can be applied to the views of this group. Levels of support for different propositions are included only for completeness Support for Martin was highest amongst those who were divorced at 19.1 per cent, despite a higher proportion of female divorcees (57 per cent) than females generally (51.1 per cent). The widowed (16.7 per cent), single people (17.1 per cent) and those who cohabit (17.7 per cent) were all more likely to favour Martin than average (15.2 per cent). Employment status was not significant to the p<0.001 level although it was significant at p<0.01, but not deemed significant enough to be discussed here.

Qualitative results

The reasons given by those supporting Pamela’s viewpoint were pretty much consistent amongst respondents. Essentially the viewpoint was that marriage is an equal partnership and although the contributions may be different in monetary terms the domestic contribution made by Pamela should count as equal to the financial contributions made by Martin.

For some this was stated very simply: “Marriage is about sharing everything equally” (Female, 16-21, employed, cohabiting, no children). Others expressed this view in more detail:

“Marriage is a partnership. Both partners contribute – some contributions are financial and can be measured. Others are not, but are equally important and valuable. The only reasonable division has to be equal – no measurement is available to justify any other split.” (Male, 40-49, employed, divorced, children)

For most respondents the domestic role as wife and mother was enough to justify an equal split, but others were keen to point out that Pamela had ‘sacrificed’ her career to enable Martin to pursue his.  It was common for respondents who supported Pamela to use the words sacrifice or sacrificed, or ‘forfeited’, or the phrase ‘gave up’ in reference to her leaving her career. Conversely those supporting Martin’s view were more likely to state that Pamela had ‘left’ employment or ‘stopped’ working. Those supporting Pamela often seemed to imply that she stopped working even though she might not have wanted to whereas those supporting Martin seemed, often, to feel that Pamela had willingly given up work – and that that was seen as an easy option from her perspective. For many the supporting role Pamela played in furthering Martin’s career was considered important – in looking after the home and family thus giving him time and space to work, but also in socialising with her husband at work events and hosting dinner parties thus more directly supporting his career advancement.

“Although her direct contribution to the finances, and her assets do not amount to half, but her indirect contributions for caring and bringing up the children, making the house, accompanying Martin to social events, hosting of parties and others should be taken into consideration. Had she not abandoned her job to care for these, her financial contribution would most definitely be higher and should Martin had to then spend some time (or money) to care for them, his financial contribution would most definitely go down.” (Male, 22-29, student, single, no children)

“Pamela gave up the chance of a career to look after their children. In most cases the husband expects you to do this. Although Martin bought all the money, Pamela has worked evenly hard. It’s not easy to bring up children as it requires 24 hr attention for the good first few years. Pamela has also helped Martin during the social events and has always been a good wife. Pamela should not be penalised for helping her husband and raising their children.” (Female, 30-39, employed, divorced, children)

For some this all seemed to be a reflection of the expected roles of married partners, but other’s were keen to point out that their answers would be the same had Martin stayed at home and Pamela gone to work.

“Pamela contributed to the family + marriage by taking care of the home + children. My answer would be the same if Martin had chosen to stay at home instead of Pamela.” (Female, 40-49, homemaker, married, children)

Many respondents pointed to the fact that the divorce was ‘mutually agreed’ and/or to the length of the marriage before the divorce to support their view that Pamela’s proposal, ie a fifty-fifty split, was the right way to go.

Respondents supporting Martin’s proposal generally gave much more weight to the financial aspect of contributions to the partnership. “Because Martin has made more of a financial contribution to the ‘home’.” (Male, 22-29, employed, cohabiting, no children). “Martin has earned all the money. He was the one who worked to get them the lifestyle they have now.” (Male, 22-29, employed, single, no children)

Others seemed to accept that raising children at least may be an equal task to being the breadwinner, but wondered why Pamela did not go back to paid employment after her children had grown up.

“Pamela had the option to return to full time paid employment once the children had started school. Instead she opted to do voluntary work. Even if she had chosen to supplement her voluntary work with PART TIME employment I would consider this a fair compromise. Therefore with Martin being the sole provider for the family, it’s only fair she receives £180,000” (Female, 22-29, employed, married, no children)

“She chose to work voluntarily (I assume) receiving nothing – why? If she wanted to be seen as equal then she should have contributed something moneywise. I think she should have sought paying employment and then she would have been more entitled to equal division of assets. Although she supported her husband by giving of her time to attend various functions with him I think nothing speaks louder than money and I consider that to be more supportive.” (Female, 40-49, employed, married, children)

Another common point for those supporting Martin was that he was already providing for her in terms of an agreed maintenance payment. “Well, he’s already providing her with a comfortable income and he is the major breadwinner in the marriage. It just seems unfair if Pamela got half.” (Male, 16-21, student, single, no children)

“He was the sole breadwinner. He provided for the family constantly, and as long as Pamela will be able to live ‘comfortably’ and doesn’t have to worry about her children (financially) there is no reason why she should get half of Martins earnings. However, because she gave up work to give Martin a family, he should ensure she will be financially stable in the future.” (Female, 16-21, student, single, no children)

Many supporting Martin’s proposal were keen to point out that being a wife and mother was definitely worth something and that Martin – or any settlement – should ensure that Pamela was looked after. Some expressly commented that if the children were not grown up then, assuming Pamela was looking after them, she could expect more.

A noticeable minority of supporters for both parties suggested that neither option was ideal and that a settlement should fall somewhere between the two. Many commented that the jewellery, as a gift, should be Pamela’s and exempt from any division. One or two tried to give monetary value to Pamela’s contributions to the family and home.

“The major responsibility for creating the family wealth has been Martin’s. There is no indication he was given any choice to be a house husband and Pamela to be the major provider for any period of time. Pamela has had the choice of working and adding value to the family’s wealth or not. She chose not to – especially once the role of nurturer to the children was no longer necessary. The jewellery was a gift and so should be deducted from the valuation and if Pamela put any money towards the deposit on buying the house (or Martin also) this should be deducted from the asset total. A valuation for services provided by Pamela to the family should be made, based on equivalent market values, and deducted also. The same should be applied to any services eg gardening, maintenance of the property Martin did for the family.” (Male, 60+, employed, divorced and remarried, children)

Summary

Taken overall our respondents confirmed the view taken by the courts that discrimination in favour of a breadwinner is an increasingly out of date concept, not appropriate in this day and age. Their views suggest that the population at large generally supports the approach taken by the courts of fairness and equality, with the homemakers’ and breadwinners’ contributions being seen as equal. It is also particularly interesting that a few people picked up on the issue of the jewellery, that it would be unfair to include it as part of the settlement, it being her personal property and not part of the matrimonial assets. Having said that, it should be noted that there is a significant rump, particularly amongst men, who would weigh the contribution of the male breadwinner, Martin, as to be worthy of greater financial benefit in the case of divorce. However, even in this group of respondents, where the largest sub-group is, perhaps not surprisingly, divorced males, only 20 per cent of divorced men believed that Martin should get a significantly increased share of the assets. Thus it seems reasonable to conclude that in the type of situation where parties divorce after a lengthy marriage and there is a surplus of assets the courts are accurately reflecting current attitudes to the division of assets in a divorce settlement.

Situation 2:

The law

The issue of inheritance was considered in White because of the external resources provided by Mr White’s father for the purchase of one of the family farms. The property did constitute a ‘resource’ within the terms of section 25(2)(a) of the Matrimonial Causes Act and thus had to be considered in the settlement. In considering the issue of inheritance Lord Nicholls stated that there is ‘a widely held view that property owned before marriage and inherited property whenever acquired stand on a different footing to matrimonial property’(at p.610) and to this extent he distinguished between matrimonial and inherited property, appearing to state that in cases where there is a sufficiency of assets the person inheriting should be allowed to keep it:

“Property acquired before marriage and inherited property acquired during marriage come from a source wholly external to the marriage. In fairness, where this property still exists, the spouse to whom it was given should be allowed to keep it. Conversely, the other spouse has a weaker claim to such property than he or she may have regarding matrimonial property.” (At p.610)

However, his speech contained within it another statement, which has led to some confusion and dispute as to quite when this approach will operate, as he also said:

“Plainly, when present, this factor [i.e. an inheritance] is one of the circumstances of the case. It represents a contribution made to the welfare of the family by one of the parties to the marriage.”(At p.610)

As contribution to the welfare of the family is one of the heads to be considered under section 25(2)(f), and is, of course, the fundamental basis of the ‘equality of division’ approach adopted by Lord Nicholls in cases of ‘surplus’ assets there was room for dispute as to his exact meaning.

There has been subsequent disagreement as to what impact Lord Nicholls comments should have on the legal position. Bailey-Harris (2003b) has argued that Lord Nicholls simply ‘mean[t] to contrast the approach to be adopted in the section 25 exercise with that adopted in community of property related systems’ rather than to assimilate it. However case law has proved to show a variety of approach. Shortly after White in H v H (Financial Provision: Special Contribution) [2002] 2 FLR 1021 and M v M (Financial Provision: Valuation of Assets) [2002] Fam Law 509 the court appeared to quarantine assets derived from inheritance from the pool to be divided by the parties. But, in contrast, in the first instance decision of Bennett J in Norris v Norris [2003] 1 FLR 1142, whose decision was confirmed on appeal, the judge held that all assets should be considered as part of the ‘matrimonial pot’, including those which had been inherited.

The contradiction in approach subsequently led Nicholas Mostyn QC in GW v RW (Financial Provision: Departure from Equality) [2003] 2 FLR 108 to say:

“The way in which Lord Nicholls has expressed himself has caused some controversy. In the second paragraph of the passage he sets out the view 'widely but not universally held' that inherited assets should in effect be identified and excluded from the pool of assets to be divided. In the third paragraph he sets out his conclusions. In so doing is he to be taken as agreeing with the view identified by him earlier, or not?”(At [46])

Nicholas Mostyn QC went on to say that it was obvious that Thorpe and Mance LJJ in Cowan v Cowan thought that he did intend ‘quarantining’ inheritance, whereas Nicholson CJ in the Australian case of Figgins v Figgins [2002] Fam CA 688 (at paragraphs 62-65) considered that Lord Nicholls had effectively rejected the idea. (Inheritance was not actually an issue in Cowan v Cowan, but Thorpe LJ appeared to treat Lord Nicholls as being supportive of the view that inherited property should be ‘quarantined’ from the other assets. Thorpe LJ quoted the para at p.610.)  He then quoted the comment in Norris v Norris by Bennett J who had preferred the view of Nicholson CJ:

“If the inherited assets of the wife are to be taken into account as part of her contribution to the marriage and the family, which, in my judgment, they must, then there is no reason to exclude them from the wife's assets when performing the discretionary exercise. For to do so would mean the wife could have her cake and eat it. She gets credit for her contribution from the inherited assets and further credit if the value of the inherited assets are deducted from the total of her assets before division. That would be tantamount to double counting and thus unfair.”(At [67])

In GW v RW Nicholas Mostyn thought this analysis could not be challenged. It must be an artifice and contrary to the express words of section 25(2)(a) to exclude the non-marital assets from the pool of assets to be divided, once again quoting Bennett J in Norris: “In my judgment, merely because inherited property has not been touched or does not become part of the matrimonial pot is not necessarily, without more, a reason for excluding it from the court’s discretionary exercise.” (At [48])

In the most recently reported cases, in P v P (Inherited Property) [2004] EWHC 1364; [2005] 1 FLR 576 Munby J followed the reasoning adopted in GW v RW and Norris v Norris and stressed the statement by Lord Nicholls in White that a judge must decide how important the issue of inheritance is in each individual case. In the particular case the wife had contributed to the maintenance of the value of the capital assets, but not to their acquisition, which was an inherited family farm which had been in the family for four generations. The final award was thus based on the wife’s reasonable needs rather than a striving for equal division, because of the special circumstances of the case. The bulk of the assets was the farm, brought in to the marriage and always intended that it should remain in specie. Munby J held that if any other approach were used this would compel sale of the farm, which would have devastating implications for the husband. Thus “to give the wife more than she reasonably needs for accommodation and income would tip the balance unfairly in her favour and unfairly against the husband.” (At [44]) Black J took a similar approach in A v B (Financial Relief: Agreements) [2005] EWHC 314; [2005] 2 FLR 730 when she excluded inherited assets from the division of property on the basis that “there were sufficient funds for the husband to receive a fair proportion of the assets sufficient for his needs without resorting to the inheritance.” (At [23])

The issue of inheritance is one that could be said to involve not just the parties. The intention of the beneficiary could be argued to be a relevant factor. That is not to say that it should be a deciding factor, for other factors might certainly intervene. Thus the original benevolent intentions might be frustrated by, for example, the ill-luck or extravagance of the beneficiary. However, where there are plenty of assets available it could be that, looking to intentions, the inherited property could be ring-fenced to separate it from the rest of the matrimonial pot. But, if this argument is to succeed, this means that in every case involving a surplus of assets the wishes and intentions of the benefactor must be considered in deciding how to deal with inherited property. As Lord Nicholls said, features which are important when assessing fairness differ in each case.

Whatever approach is taken it is clear that the existence of inherited assets may be a relevant factor, but they cannot simply be excluded from the assets available for division in all situations. What is more, this is so even where a mere expectancy or spes successionis is being taken into account (see Michael v Michael [1986] 2 FLR 389; MT v MT (Financial Provision: Lump Sum) [1992] I FLR 362; Morgan v Morgan (Financial Provision) [1977] Fam 122; H v H (Financial Provision: Capital Allowance) [1993] 2 FLR 335. In a ‘usual’ case, where there are insufficient assets adequately to provide for both parties to live comfortably, the source from which the ‘family silver’ (see Bruce 2001, at p.167) is derived is of little significance. All has to be put into the pot in order to come to a sensible division of the assets in order to assist both parties. However, in cases where there is a surplus, issues of principle arise and this is why views vary as to how to treat inheritance. Eekelaar (2001) has proposed a durational approach to the division of assets, including inherited property, whereby the entitlement of a spouse strengthens over time. There are obvious merits in such an approach. A sense of ‘fairness’ comes in here. Why should someone who has only been married for a short while benefit from an inheritance intended for the spouse, particularly if the benefactor was opposed to the marriage in the first place? However, there are also obvious difficulties with such an approach. There are uncertainties as to how long the durational element should be. It also creates a contractual rather than status analysis on marriage, which does not fit aptly into a system which largely fails to recognise pre and post-nuptial agreements (see Cretney 2004).

Another possibility is to consider the way in which the property is held. If there has been a separation from the marital property and trustees appointed, it may be regarded as good evidence that the property was always intended as personal rather than marital. The counter to this, of course, would be that the non-inheriting spouse has no way to ‘contest’ this separation and if she is contributing in other ways she can justifiably argue why should her contribution be part of the pot yet her spouse be entitled to decree that his property should be treated differently?

Ultimately, in cases of lesser means needs will normally have to be satisfied by recourse to the inheritance. Lord Nicholls realised this by admitting that “in the ordinary course, this factor [how the money was acquired] can be expected to carry little weight, if any, where the claimant’s financial needs cannot be met without recourse to this property.” (At p.610) However, effectively the law proscribes two distinct rules depending upon the means of the parties. Although how to quantify the ‘correct’ division might prove difficult, it has been generally accepted that in a case of surplus assets an equal division might produce an unfair outcome where inheritance exists (see Thorpe LJ in Lambert v Lambert). The dual approach epitomises the suggestion that fairness is a relative concept and can never be achieved absolutely. In a modest means case fairness cannot be the dictating factor because provision for any children and needs of the parties are paramount considerations. However, fairness, whatever that phrase might mean, can be striven for where wealthy parties are involved. Hence the law for inheritance depends largely on the nature of the case.

The findings

Quantitative results

Nearly half of all respondents (45.5 per cent) said that their answer would remain the same as for scenario one. Of those 89 per cent had originally supported Pamela’s position in scenario one and 11 per cent had supported Martin. This means that 40.5 per cent of all respondents thought that all the financial assets should be split equally.

Just over a quarter of respondents (27.8 per cent) would exclude the inheritance from the division of assets with slightly fewer (26.7 per cent) opting to exclude the total value of the shares bought with the inheritance. In both cases those that had originally supported Martin’s position were more likely to exclude the inheritance related assets than those that had originally supported Pamela – in the case of the inheritance money 31.5 per cent of those who had supported Martin would exclude the £100,000 compared to 27.2 per cent of those who had supported Pamela; for the shares (£200,000) the figures are 35.5 per cent and 25.1 per cent respectively. In all 67 per cent of those who had supported Martin’s position would exclude the shares or the inheritance, that is to say that they would support a three to one split (in Martin’s favour) of the assets not including some or all of the assets stemming from the inheritance.

Of those who originally supported Pamela’s position, ie a fifty-fifty split, 27.2 per cent would exclude the value of the inheritance in this division and 25.1 per cent would exclude the current value of the shares. In short two-fifths of respondents (40.5 per cent) support an absolute equal split of all assets, another two-fifths or so (44.3 per cent) support an equal split of all the assets except those stemming from the inheritance and the remainder, less than one-fifth (15.2 per cent) favour splitting all the assets in Martin’s favour (with or without the inheritance money)[1].

Gender was not significantly related to respondents’ answers to scenario two (p>0.1). Women were slightly more likely to keep their answers the same (47.5 per cent versus 43.3 per cent of men), and their original answers were significantly more likely to favour Pamela (discussed previously). Beyond this earlier gender divide there was no significant extra relationship between gender and views on excluding the value of the inheritance or the current value of the shares.

There was no clear pattern as to how age related to responses to scenario two beyond those discussed in response to scenario one.

Qualitative results

For those who had originally supported Pamela’s proposal and who answered ‘remain the same’ for scenario two (40.5 per cent of the total respondents) they gave very similar reasons for doing so. Essentially their reasoning boiled down to the underlying principle that all things in marriage should be equal. “Once you are married everything should be shared as you are one entity”. (Female, 16-21, student, single, no children)

Those who initially supported Pamela’s calls for a fifty-fifty split but chose to exclude the initial value of the inheritance (23.0 per cent) generally recognised that the inheritance was for Martin alone from his father, but that the profit from the shares became part of the ‘family income’.

“The £100,000 that forms the original inheritance money to Martin should be excluded as Martin should have sole rights to it. By dividing this inheritance with Pamela against Martin’s wishes, this would defeat the wishes of Martin’s father to pass the money to him. However the investment can be said to be made for the family as a whole rather than solely for Martin, and thus, the proceeds should be included in the assets to be shared between Pamela and Martin.” (Male, 16-21, student, single, no children)

Those supporting a fifty-fifty split but excluding the current value of the shares bought with the inheritance money (21.3 per cent) had broadly the same sentiments but felt that the extra money accumulated should be treated the same as the original inheritance.

“I think inheritance money should be excluded from any settlement. Martin’s father had left the money to Martin and would probably be unhappy if he felt that he had had to give half away.” (Female, 50-59, employed, divorced and remarried, children)

Those who originally supported Martin’s proposal, a seventy-five/twenty-five split of assets, and said their answer would remain the same for scenario two (5.0 per cent) generally considered the inheritance money to be a minor consideration in the grand scheme of things, and to be treated as for the rest of the assets. As one respondent said:

“Been together a long time – Probably had a relationship with M’s father – he got the money whilst married and so if they’d stayed together both would have benefited from the profit from the shares so she should get some of it.” (Male, 22-29, employed, married, no children)

However some respondent’s had very strong views:

“Why is she entitled to his inheritance money? No my answer is the same as situation one. Some women think that marrying a man, having his children, attending business functions entitles them. Why? Entitlement should be earned by showing you are willing to work to make life comfortable for both, not just what selfishness can get you.” (Female, 40-49, employed, married, children)

Those who originally supported Martin’s position but would have excluded the inheritance (4.8 per cent) or the current share value (5.4 per cent) generally cited the same reasons as those who had supported Pamela but would exclude one or the other. Essentially the view was that an inheritance is a personal thing, separate from the other combined family assets.

A point made by some respondents of varying opinions for the first two scenarios was that it depended on the timing of the inheritance. If the money was inherited before the marriage, or after the end of the marriage had been agreed, then the inheritance should be separate from the other assets.

“I think it depends on the extent of their relationship and the effective time period of which the marriage ended. If a divorce was proposed and considered before the inheritance then the shares should be excluded. However if the marriage was still intact during the inheritance and investment and they both agreed that the money belonged to both of them then the shares should be included in the pool of assets to be divided.” (Male, 16-21, student, single, no children, supported Pamela in scenario one with no change for scenario two)

Summary

Legally speaking this was the most complex of the three situations presented to the respondents, and this complexity was reflected in the responses given. It is evident that the complexity remains and is liable to continue to throw up arguable issues. This is shown by the House of Lords, which once again visited the issue of inheritance in Miller; McFarlane. To a certain extent the House of Lords took up the durational approach to inheritance, but only in so far as it is appropriate in any particular case. Thus Lord Nicholls said:

“ … there is a real difference, a difference of source, between (1) property acquired during the marriage otherwise than by inheritance or gift, sometimes called the marital acquest but more usually the matrimonial property, and (2) other property. The former is the financial product of the parties' common endeavour, the latter is not … in principle the entitlement of each party to a share of the matrimonial property is the same however long or short the marriage may have been. The matter stands differently regarding property (‘non-matrimonial property’) the parties bring with them into the marriage or acquire by inheritance or gift during the marriage. Then the duration of the marriage will be highly relevant … In the case of a short marriage fairness may well require that the claimant should not be entitled to a share of the other's non-matrimonial property. The source of the asset may be a good reason for departing from equality. This reflects the instinctive feeling that parties will generally have less call upon each other on the breakdown of a short marriage. With longer marriages the position is not so straightforward. Non-matrimonial property represents a contribution made to the marriage by one of the parties. Sometimes, as the years pass, the weight fairly to be attributed to this contribution will diminish, sometimes it will not. After many years of marriage the continuing weight to be attributed to modest savings introduced by one party at the outset of the marriage may well be different from the weight attributable to a valuable heirloom intended to be retained in specie.” (At [22]-[25])

Lord Nicholls concluded from this that what was required was flexibility and a case by case approach. That judges must give such a contribution the weight they consider ‘just’ according to the particular circumstances of the case.

Baroness Hale of Richmond largely concurred with this approach. She said that the source of assets may be taken into account, but that the implications of the source will diminish over time. However, her approach to the significance of duration was slightly different. She said:

What seems clear from all this is that, just as the issue of inheritance can be a vexed issue for the public, so it is too for the courts. There is no simple one size fits all solution and how to deal with inheritance is likely to continue to vary from case to case.

Situation 3:

The law

Conduct is a matter which the courts must take into account on an ancillary relief application (“the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it.” section 25(2)(g)). Thorpe LJ in Tavoulareas v Tavoulareas [1998] 2 FLR 418 said it is necessary to distinguish between conduct which affects the level of award and conduct which leads to a party being penalised in costs. Section 25(2)(g) is plainly aimed at matrimonial misconduct and therefore it is only the former which is relevant, if at all, in deciding the level of award that Pamela should obtain.

Generally speaking when dividing assets courts have been reluctant to give weight to ‘bad’ conduct except when it has been ‘obvious and gross’ (per Lord Denning in Wachtel v Wachtel [1973] 1 All ER 113) or where it has been ‘of the kind that would cause the ordinary mortal to throw up his hands and say, “surely that woman is not going to be given any money” or “is not going to get a full award”’ (see W v W (Financial Provision: Lump Sum) [1976] Fam 107, per Sir George Baker P at p.114). But, because being a homemaker is now treated as providing an equal contribution to the family, as much as providing for them financially, this then raises the spectre of viewing bad conduct as a negative contribution under section 25(2)(f) and thus entitling the ‘good’ spouse to a greater share (see Brasse 2003).

There are sound reasons for not delving into conduct except in the most extreme and obvious of cases. As highlighted as long ago as 1973 in Wachtel v Wachtel (at p.119) disentangling cause and effect is by no means easy. Additionally, as discussed by the Law Commission in 1980 and 1981 (Law Com No. 103, Law Com No.112 at paragraph 37), there are sound pragmatic reasons for rejecting inquiry into the parties’ mutual recriminations on divorce. It would be expensive in court time, would be a burden on the legal aid fund and would not assist in helping the parties to resolve their issues, which are better dealt with via conciliation.

In W v W [2001] Fam Law 656 Wilson J attacked the concept of ‘negative contribution’ as being an unhelpful oxymoron. His very robust view was that where conduct is alleged then it should be formulated in such a way and dealt with under section 25(2)(g) rather than as a contribution under section 25(2)(f). However, utilising the White approach of ‘fairness’, this does raise ethical and moral considerations, as conduct may be an ingredient in what is fair (see Hodson 2002).

Taking all this into account the behaviour of Pamela in the given scenario is ‘ordinary’, by no means the type of conduct that has attracted the court’s attention in the past. It could also be argued that Martin is equally ‘to blame’. He has demonstrated an imbalance in handling his family and work, which echoes Thorpe LJs opinion in Lambert: “the more driven the breadwinner, the less available will he be physically and emotionally as a husband and a father.” (At [45]) Given the increased acceptance of no-fault divorce in society and the relatively little weight that is accorded to immorality (see the comments of Butler-Sloss LJ in Hepburn v Hepburn [1989] 1 FLR 373 at p.378) even allowing for the possible development of negative contribution or unfairness in divorce it would seem unlikely that Pamela’s award would be affected in any way.

However, despite the long history of only taking conduct into account in more extreme cases, the decision of the Court of Appeal in Miller; McFarlane raised very real fears that conduct was being reintroduced by the courts through the back door. In Miller the wife was awarded the very large sum of £5m after a short, less than three years, childless marriage. The wife had asserted the marriage had broken down due to the husband’s adultery. Although both the trial judge and the Court of Appeal agreed that this was not ‘conduct’ within the meaning of section 25(2)(g) they did hold that it was not the case that allegations of misconduct could only be raised under that sub-section. Therefore, they concluded, the judge was entitled to hold that the husband was responsible for the breakdown of the marriage and, in the light of this, much less weight should be given to the duration of the marriage than would have been the case if either she had been to blame, or the parting was consensual. This thereby entitled her to receive such a large sum.

This decision caused consternation, as it certainly raised the spectre of conduct regularly reappearing in other guises in future cases. However, on further appeal to the House of Lords their Lordships were absolutely clear that the approach of the Court of Appeal was impermissible and conduct could not be taken into account in this way. Lord Nicholls said very firmly that the Court of Appeal’s approach was erroneous (at [64]). Baroness Hale of Richmond commented:

“It is simply not possible for any outsider to pick over the events of a marriage and decide who was the more to blame for what went wrong, save in the most obvious and gross cases. Yet in Miller v Miller, both Singer J and the Court of Appeal took into account the parties' conduct, even though it fell far short of this. In my view they were wrong to do so.” (At [145])

Lord Mance was equally emphatic. He agreed with Lord Nicholls that, by taking into account the husband’s conduct, the decision below had been made on erroneous grounds. He pointed out that there are few people who marry believing that their marriage will be short-lived. With any marriage, unless conduct is so bad it would be inequitable to disregard it, the court should not attempt to assess responsibility for the breakdown, nor should it attribute ‘legitimacy’ to the wish of one party to continue the marriage against the wishes of the other. (At [164])

The findings

Quantitative results

Respondents were only slightly less likely to answer ‘yes’, they would reduce the award to Pamela because of her adultery (42.6 per cent of respondents), than ‘no’ (44.4 per cent), with a noticeable minority responding ‘don’t know’ (12.9 per cent). Those who initially supported Martin’s case (a 75/25 split in scenario one) were significantly more likely to answer ‘yes’ than those who initially supported Pamela (55.2 per cent and 40.4 per cent respectively, p<0.001). That is to say that those people who would already have given Pamela a lesser amount were more likely to reduce – further – her share of the assets.

Once again there was a significant gender difference in the responses with 53.0 per cent of men, compared to 32.8 per cent of women (p<0.001), suggesting that Pamela should be entitled to a lesser share due to her unfaithfulness. Again this example of gender solidarity is probably not particularly surprising. What would be interesting, but was beyond the scope of this project, would be whether public views would be significantly different if Martin had committed adultery.

As with scenario one the relationship between the age of the respondent and the response given was significant (p<0.001), but the pattern was not straightforward. The youngest age-groups were the most likely to answer ‘yes’ they would reduce the award in scenario three (56.3 per cent of 16-21 year olds; 53.1 per cent of 22-29). This proportion declined as respondents aged (34.0 per cent for 30-39 year olds; 28.5 per cent for 40-49 year olds) before rising again for older respondents (30.6 per cent for 50-59 year olds and 42.7 per cent for those aged 60+). The trend across age-groups was more pronounced for female respondents. The percentage of male respondents answering yes was 65.6 per cent, 61.7 per cent, 42.3 per cent, 45.9 per cent, 40.5 per cent and 46.7 per cent across the six age groups (youngest first) compared to 48.2 per cent, 43.8 per cent, 26.5 per cent, 15.4 per cent, 19.7 per cent and 37.2 per cent respectively for female respondents. (p<0.001).

Having children was also a significant factor here (p<0.001). Those with children were much less likely to consider Pamela’s unfaithfulness as relevant to the division of assets than those without (only 32.1 per cent of respondents with children answering ‘yes’ to scenario three compared to 51.4 per cent of those without). This may suggest that those with children are more sympathetic to Pamela’s position, perhaps through a greater understanding of role division within a child-rearing relationship, whilst those without children are more supportive of Martin. Again if we factor in the gender divide we find that women with children are more supportive of Pamela (less inclined to answer ‘yes’) than men with children (21.3 per cent compared to 45.4 per cent; p<0.001).

Employment status was also significant to the p<0.001 level. Broadly speaking it would seem that homemakers, who are largely female and married, are particularly supportive of Pamela (58.1 per cent of homemakers answered ‘No’ compared to the average of 44.5 per cent). This may suggest some sympathy amongst stuck-at-home house wives towards Pamela’s indiscretion, but it should be noted that the sample size for homemakers was only 62. Another group whose opinions were noticeably different from the total sample was students with 56.2 per cent (compared to the average 42.7 per cent) responding ‘yes’ and signalling greater support for Martin.

Qualitative results

Two main, and related, reasons were frequently given for supporting the view that Pamela deserved a reduced share for being unfaithful (whatever the original share was thought fairest). On the one hand unfaithfulness was viewed by many as a breach of the marital contract and therefore Pamela was seen to forfeit some of her rights. On the other many people simply viewed Pamela’s indiscretion as deserving of punishment. “By having an affair the marriage is ‘void’ so to speak. Broken the ideals of marriage therefore the division of assets should be more in favour towards Martin.” (Female, 16-21, student, single, no children). “She made a conscious decision to cheat on Martin and she should be penalised for her actions.” (Male, 30-39, employed, cohabiting, no children).

For some it was not just the affair that justified lowering Pamela’s share but the fact that she didn’t try to rescue the marriage first, and was taking advantage of Martin as well.

“Pam was probably quite happy to spend the money that Martin spent hours earning. Would she have preferred no money but lots of time with her husband?? She should have talked to Martin or left him before having an affair. She’s been getting the best of both worlds!!” (Female, 30-39, employed, married, no children)

“Although both parties have a part to play to maintain the relationship, the fact that Pamela has chosen to betray the marriage instead of taking active/positive efforts to renew/refresh the marriage. Maybe both parties should be responsible for this outcome but clearly it is more reasonable for the victim of the betrayal to divide the assets in a manner that favours him more. Probably around £150,000. (Most people wouldn’t even provide alimony in such cases!!)” (Male, 22-29, student, single, no children)

The last respondent had originally supported Martin’s case. Many of those who had originally supported Pamela’s position were of the view that her adultery justified Martin’s position after all, although most did agree that she still deserved something from the marriage. “Still entitled to house but would rather give money to children as they are more deserving.” (Male, 60+, retired, divorced, children) However some were very harsh in their assessments. “She should get nothing or close to nothing…” (Male, 30-39, employed, divorced, no children)

“If Pamela had worked Martin would not have needed to work such long hours. Pamela is only using his long hours as an excuse for the affair. Martin obviously paid too much for the building alterations as the builder was in no hurry to finish. Martin should try to get a refund from the builder. Pamela should find out the hard way that everyone is expected to work for a living.” (Male, 50-59, married, children)

Those who didn’t think that Pamela should lose out because of her affair generally took the view that such issues, although maybe relevant to the cause of a divorce, should not be relevant to the settlement. “Hopefully we have reached an attitude of ‘no blame’ towards divorcing parties’ settlements. Their conduct is irrelevant to this although adultery is still a legal ground for divorce.” (Male, 60+, retired, divorced and cohabiting, children). “Love matters and financial matters should be considered separately and should not mix.” (Male, 30-39, student, single, no children) Many here pointed out that the affair was probably a reflection of other issues in the marriage. “The affair was also partly M’s fault and so it should not affect how the assets are divided.” (Male, 22-29, employed, cohabiting, no children) Others pointed out that we don’t know all the ‘emotional’ issues. “In terms of emotional issues, there may be faults on either side.” (Male, 40-49, employed, divorced and remarried, children) “We do not know about Martin’s behaviour.” (Female, 16-21, student, single, no children) Of course some did not see Pamela’s conduct as relevant to the division of assets because they did not see her as being particularly deserving in the first place.

“I would gladly give this woman ¼ of assets as I state in situation one, to be rid of the money grabbing selfish bitch. She chose to not have paid employment and then throws her boredom in to her husband’s face as a reason to have an affair. She really wants the lot. Lets her husband work long hours, spends his money, wants half and bonks who she wants. No no no. Selfish bitch.” (Female, 40-49, employed, married, children)

For the respondents who ticked the ‘Don’t Know’ box the major reason given was uncertainty as to the role the affair had, if any, in relation to the divorce. A second common reason (or group of reasons) was uncertainty as to all the facts.

“If the affair is the result of an already difficult marriage the answer would be likely ‘no’. But if the affair could be proven to be the main factor for the divorce I am not sure.” (Female, 50-59, employed, divorced and remarried, children)

“That would depend on whether the affair had caused the divorce. Besides, the fact that Martin did not confess does not make him better than Pamela. He might have had affairs too, just that he kept it secret.” (Male, 16-21, student, single, no children)

The issue of whether Pamela’s affair was the cause of, or a symptom of the breakdown in marriage was raised by a lot of people. Many of those suggesting that Pamela deserved less money after her affair seemed to have interpreted the scenario as Pamela’s actions causing the breakdown and as such she deserved less money. Conversely some people seemed to think that Pamela had an affair because the marriage was already failing. This view was taken both by those suggesting Pamela still deserved the same amount of money and those suggesting she deserved less money for being unfaithful. The first group seemed sympathetic to Pamela or felt that the affair was irrelevant to the division of assets, the second often made the point that the failing marriage was no excuse for an affair.

Summary

It was in responding to this scenario that a significant number of the public departed from the approach taken by the courts. Despite the existence of ‘no fault’ divorce, the public clearly remains somewhat ambivalent as to how much conduct should be taken into account when parties get divorced. Certainly it would be unreasonable to expect the public to take matters such as court time and costs into account when considering a hypothetical scenario and for them to realise the futility of wasting assets in this way. However, it is interesting to note that even although an ‘excuse’ for Pamela’s behaviour was provided in the scenario – Martin’s neglect of Pamela – still a significant proportion of respondents would like to see her get a reduced award. Of further interest, it is worth noting that Melissa Miller did not command widespread public support, despite the fact that her husband committed adultery and left her for another woman. However, this is presumably largely due to the huge amount she received when her marriage had lasted for less than three years. However deserving she may be, someone who walks away with £5m is unlikely to attract much sympathy

As long ago as 1973, in Wachtel v Wachtel, Ormrod J commented:

Since that date the idea of subjecting marriages to a close analysis on an ancillary relief application has been consistently rejected. When the Law Commission issued their discussion document in 1980, consistently with our current respondents, the Commission received conflicting responses, with many individuals expressing a strong view about the ‘injustice’ of not taking conduct into account. However, the Commission remained convinced by the arguments against taking account of conduct in all but the most obvious of cases. Subsequently, had the provisions of the Family Law Act 1996 surrounding divorce been implemented, the wording of section 25(2)(g) would have been amended, arguably giving more scope to raise conduct during litigation. However, as the provisions have not come into force it will never be known whether or not the rewording would have led to an increase in conduct allegations. Like the Law Commission the courts have remained similarly convinced. Drawing the line as to when conduct does fall into the ‘unacceptable’ category is not necessarily easy.  In Kyte v Kyte [1988] Fam 145 the registrar said the wife’s conduct should be taken into account and refused to award her a lump sum. The judge said it should not be taken into account and awarded her a lump sum. The Court of Appeal said conduct should be regarded, but only reduced the lump sum amount.

 ‘Mere’ adultery, however, would certainly not fall into this ‘unacceptable’ category and a wife such as Pamela would not have her award reduced.

Conclusion

Although becoming increasingly less common, it is still the case that in many marriages spouses arrange their finances on the basis that the husband is the sole or main breadwinner, and the wife stays at home to look after the children. Under general property law rules this does not, of course, give the wife any automatic entitlement to a share in the property (see Gissing v Gissing [1970] 2 All ER 780; Lloyds Bank plc v Rosset [1990] 1 All ER 1111). However, as long ago as 1964 the consequences of such an arrangement were compellingly illustrated by Lord Simon of Glaisdale when he wrote: “The cock bird can feather his nest precisely because he is not required to spend most of his time sitting on it.” (Simon of Glaisdale 1964) The imbalance of ordinary property rights which is brought about by this family arrangement is rebalanced in the Family Law arena through the Matrimonial Causes Act 1973.

Family Law, probably as much as any area of law, needs to change and develop with the times. As family forms and attitudes change so should the application of the law. One of the great strengths of the Matrimonial Causes Act 1973 is that it is worded in such a way that it gives judges the freedom to interpret its provisions in the light of prevailing modern attitudes. It is clear from our research that judges are indeed largely reflecting modern views. Both Lord Nicholls and Baroness Hale of Richmond talk of compensating the wife in Miller; McFarlane due to the economic disparity brought about by the way the parties conducted their marriages. The public do in the main think that work in the home is as valuable as that undertaken outside it and would thereby ‘compensate’ the wife. Most people find the issue of inheritance tricky and this is reflected in the judgments by the courts. Understandably people’s sense of fairness and justice is challenged when one party is apparently the ‘innocent’ party in a divorce.

The discrepancies in opinion displayed by our respondents demonstrate the inherently subjective nature of decision-making in cases involving the division of assets on divorce. Uncertainty is unavoidable in this area of law, as, no matter how developed the law becomes, no two marriages and no two divorces are the same and there will always be room for judicial discretion. The decision in White itself aroused comment and controversy over a number of issues (Da Costa 2001; Duckworth and Hodson 2001; Bailey Harris 2003). However White did succeed in challenging the discrimination which was exercised where surplus funds exist. And, as Lord Nicholls said, any more general presumption of equality of division on divorce should be a question for Parliament to decide, not the courts.

It is obviously true that in all cases, insofar as it is possible, the result should be ‘fair’. We do not need the House of Lords to tell us that. But, of course, if everyone shared the same ideas as to fairness then cases would never reach the courts. What White demonstrates is the difficulty in formulating principles of ‘universal application’, because of the huge variety of possible situations and circumstances to which the law has to apply. Yet in offering some general statements of principle White has at least encouraged pragmatic thinking and spurred on judicial activism to strive to do what is just between the parties in every case. This result alone coming from White cannot but be applauded. Better still, overall our research shows that the public do indeed think that the House of Lords in White did set ‘fair’ standards, standards appropriate to the 21^st century.

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