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Background
This is the landmark case ruled on by the House of Lords
on 26 October 2000 that marked the most fundamental change
in the relevant law since the 1970s. The present law has
not changed and much of the guidance on ancillary relief
applied in respect to a couple on divorce, judicial
separation or nullity
of marriage can be found in the Matrimonial Causes Act
1973 (MCA 73).
During the 1980s
and 1990s there was an emphasis on the importance of
needs and reasonable requirements of the spouse rather
than an arithmetic calculation for the division of the
matrimonial
assets. This has become the practice in the majority
of cases and the primary factor used concerning section
25(2) of the MCA 73. In cases where the assets are greater
than meet the needs of both spouses, it was often the
case that the spouse, usually the wife, would receive
considerably less than 50% of the matrimonial assets.
Clearly this approach
was potentially discriminatory against women and failed
to protect the non-working mother. In 1998 the government
was aware that the Human Rights Act could challenge
this position in the future, in particular if there
are children of the marriage.
It was not until the case White v White (2000) that
the dependence on the need approach for the consideration
of ancillary
relief could be reversed.
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Case facts
The case of Mr. And Mrs. White concerns a long marriage and
at the time of divorce the children were independent. The couple
are a farming partnership that both work physically hard and
make an equal contribution to both work and domestic activities
with total assets of approximately £4 million. In the
early days Mr. White's father made a contribution to the farm
in addition to the couples efforts.
Court of Appeal
In the first instance the case progressed on a conventional
needs approach and Mrs. White was awarded £980,000, which
was enough to satisfy her needs approach for housing and income
from capital. At the Court of Appeal it was pointed out that
had Mrs. White been a business partner she would have received
much more. The court emphasised a partnership model rather than
a needs basis and awarded her £1.7 million, the amount
below an equal split due to the fact that Mr. White's family
contributed in the early years.
Both parties appealed against the judgement.
Mr. White claimed that the case should be resolved on a needs
basis and that any change in the law should be made by parliament.
Mrs. White claimed that the law based on needs was inappropriate
and emphasised an equal division of the assets.
House of Lords
The House of Lords ruling upheld the decision of the Court
of Appeal and brought in a change in direction of the law
and said that the law on a needs basis had not kept up with
changes in society. In most cases the courts must try to satisfy
the needs of both parties from limited resources, however,
in the cases of wealthy families Lord Nicholls of Birkenhead
suggested that this judgement was applicable only to these
cases such as White v White where the assets are significantly
larger than the resources to satisfy a judgement on a needs
basis.
He emphasised that there can no longer be
gender discrimination when determining the allocation of ancillary
relief. He said "If, in their different spheres, each
contributed equally to the family, then in principle it matters
not which of them earned the money and built up the assets.
There should be no bias in favor of the money-earner and the
child-carer". The House of Lords also recognised that
by being at home and looking after young children, a wife
may lose forever the opportunity to acquire and develop her
own money-earning qualifications and skills.
Lord Nicholls also said the judge "would
always be well advised to check his tentative views against
the yardstick of equality of division". He went on to
say "as a general guide, equality should be departed
from only if, and to the extent that, there is good reason
for doing so. The need to consider and articulate reasons
for departing from equality would help the parties and the
court to focus on the need to ensure the absence of discrimination".
He stopped short of creating a legal presumption
saying that only parliament was in such a position to do so.
Lord Nicholls made reference to the Matrimonial
Causes Act 1973 section 25(2) saying that in determining
ancillary relief for the spouse there was no determined order
of priority and the distribution of assets depended on every
case.
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