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.

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 judgment. 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 judgment was applicable only to these cases such as White v White where the assets are significantly larger than the resources to satisfy a judgment 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.