Wives win equality Miller v Miller McFarlane v McFarlane House of Lords (England) (2005) EWCA Civ 984 (2004) EWCA Civ 872

The House of Lords is the English counterpart to the Privy Council. It is by and large made up of the same judges and so its decisions are generally followed in T&T in those cases where the legal principles and statutes are the same.

Recently, the Lords turned their attention to the entitlements of homemaker/wife on a divorce and in a judgment that the London Times referred to as the most important divorce judgment in 20 years, shifted the goal posts substantially in her favour. The principles that they laid down were as follows:

1. The division of property following a divorce should be a fair one. Discrimination is the antithesis of fairness and in seeking a fair outcome there is no place for discrimination between a husband and wife and their respective roles. In assessing the parties’ contributions to the family there should therefore be no bias in favour of the money-earner and against the homemaker and the child-carer. This is a principle of universal application and it is applicable to all marriages even short ones.

2. Primary consideration must be given to the welfare of any children of the family.

3. In the search for a fair outcome it is pertinent to have in mind that fairness generates obligations as well as rights. The financial provision made on divorce by one party for the other, still typically the wife, is not in the nature of largesse. It is not a case of “taking away” from one party and “giving” to the other property which “belongs” to the former. The claimant is not a suppliant.

Each party to a marriage is entitled to a fair share of the available property. This element of fairness reflects the fact that to greater or lesser extent every relationship of marriage gives rise to a relationship of interdependence. The parties share the roles of money-earner, homemaker and child-carer.

Mutual dependence begets mutual obligations of support. When the marriage ends fairness requires that the assets of the parties should be divided primarily so as to make provision for the parties’ housing and financial needs, taking into account a wide range of matters such as the parties’ ages, their future earning capacity, the family’s standard of living and any disability of either party.

Most of these needs will have been generated by the marriage, but not all of them. Needs arising from age or disability are instances of the latter.

4. In coming to its determination the court will give consideration to redressing any significant prospective economic disparity between the parties arising from the way they conducted their marriage. For instance, the parties may have arranged their affairs in a way which has greatly advantaged the husband in terms of his earning capacity but left the wife severely handicapped so far as her own earning capacity is concerned.

Then the wife suffers a double loss; a diminution in her earning capacity and the loss of a share in her husband’s enhanced income. This is often the case. Although less marked than in the past, women may still suffer a disproportionate financial loss on the breakdown of a marriage because of their traditional role as homemaker and child-carer. When this is so, fairness requires that this feature should be taken into account by the court when exercising its powers.

5. The court should also take into account the principle of equal sharing; that principle derives from the basic concept of equality permeating a marriage as understood today and is based on the wide if not universal recognition that husband and wife are now for all practical purposes equal partners in marriage.

The parties commit themselves to sharing their lives. They live and work together. When their partnership ends each is entitled to an equal share of the assets of the partnership unless there is a good reason to the contrary. Fairness requires no less.

6. A short marriage is no less a partnership of equals than a long marriage and so the principle of equality applies equally to a short marriage; to hold otherwise would mean that on the breakdown of a short marriage the money-earner would have a head start over the homemaker and child-carer.

To limit the application of the principle of equality to the “fruits of a long marital partnership” would be to introduce an element of discrimination that runs contrary to the requirement of fairness in the division of property.

7. The principle of equality clearly applies to family assets, for example, the family home and its contents, the parties’ earning capacities and other assets which were obviously acquired for the use and benefit of the whole family, such as holiday homes, furniture, insurance policies and other family savings, the family business or joint ventures in which they both work.

8. In the case of property which was brought by one partner into the marriage, or inherited property or gifts made to one partner or business or investment assets which have been generated solely or mainly by the efforts of one partner, fairness may well require that the claimant in a short marriage should not be entitled to a full equal share of the other’s non-matrimonial property as in that case the source of the asset may be a good reason for departing from the principle of equality but its importance may diminish over time.

Where, therefore, the assets are not “family assets,” or not generated by the joint efforts of the parties and the marriage is a short one, what ought to be considered is whether the shortness of the marriage is a reason for reducing the other party’s half-share rather than there being an accrual towards that half-share over time.

9. In making the determination as to the division of the property, adultery or any conduct of either party should not be a factor unless that conduct is so gross and obvious that it would be inequitable to disregard it.

The two cases before the Lords illustrate the application of these principles. Mrs McFarlane had been married to Kenneth, a tax partner at Deloitte searing in excess of £750,000 a year, for 16 years. She gave up a high-flying career as a solicitor to raise three children. In recognition of her contribution in giving up her career, the Lords granted her the £1.5 million family home in London as one half of the family’s capital assets and maintenance of £250,000 a year for as long as she needed it, with the burden being on Mr McFarlane to show that her requirements had changed.

In Mrs Miller’s case, she was married for a little under three years and brought no assets into the marriage. The Lords considered that the shortness of the marriage justified a departure from the principle of equality but still awarded her £5 million, just under 1/3 of her husband’s £17.5 million fortune and a very substantial sum.

Comment: The decision ought to be welcomed by women who have agreed to sacrifice their career prospects in favour of the needs of their family. They ought now to be able to be compensated for that sacrifice. The reaction in England is that this decision will discourage marriage but it is equally arguable that by increasing the “sting” of divorce, the courts have encouraged partners to stay married rather than reaching for divorce at the first hurdle.

I am told by a colleague versed in this area that it is not as clear as it ought to be, whether women in T&T in common law marriages will be able to get the full benefit of decisions like this. This is unfortunate and represents a failure to recognise the social situation that exists in the Caribbean and the pressing need of the typical single mother unit for support from a recalcitrant absentee father.

Hopefully, Parliament will recognise that Edith Clark did not chose to title her seminal work “My Mother who Fathered Me” just because it was catchy and will quickly remedy any anomaly that may exist.

Extracted From: Trinidad Guardian Newspaper