Somaya Ouazzani
Family Law Journal - September 2009
Ancillary relief has for many years seen the courts adjusting the private financial lives of family members: however, it has now begun to look to the public side of that ideological divide. Legal practitioners are now more aware that as described by Starnes, ‘the home is not an equal opportunity employer’ (C Starnes, 'Divorce and the Displaced Homemaker: A Discourse of Playing with Dolls, Partnership Buyouts and Dissociation Under No Fault,' (1993) 60 Uni. Chi. L. Rev 67) and that the gender divisions are not necessarily the result of freely chosen decisions. The milestone case of White v White [2000]2 FLR 981 incontrovertibly has been the catalyst which instigated this recognition. Lord Nicholls, in discussing the 1970 statutory provisions rightly stated ‘...the property adjustment provisions were limited...they reflected the values of male-dominated Victorian society.’ He famously held ‘...there is no place for discrimination between husband and wife and their respective roles.’ White correctly denounced any preference for the breadwinner’s contribution and realised that the homemaker’s contribution is conducive to the breadwinner’s success. ‘There is greater awareness’, said Lord Nicholls, ‘of the extent to which one spouse’s business success, is achieved by a family contribution of the other spouse, a contribution which ... required much sustained hard work over many years.’ White recognised that society, despite its ideals of egalitarian relationships, in reality is not organised in this way. This article will examine whether ancillary relief law has taken up the implicit challenge offered by White to promote equality between spouses.
THE BENEFACTOR AND THE BENEFICIARY
Lord Denning in Trippas v Trippas [1973] 2 All ER 1, CA revealed the rampant inequality, which permeated ancillary relief law when he asserted:
‘The wife cannot claim a share in the business .... She did not give any active help in it ... All she did was what a good wife does. She gave moral support to her husband by looking after the home. If he was depressed ... she would encourage him to keep going ... that does not give her a share.’
This judicial sentiment was instrumental in the phenomenon that has become known as the feminisation of poverty. Diduck describes how ‘women’s poverty in later life may also be related to how these norms incorporated into the dominant culture of settlement.’ (A Diduck, Law's Families (LexisNexis Butterworths, 2003). While many ex-wives may not have actually fallen into what is conventionally understood as ‘poverty’ they have been forced to accustom themselves to a standard of living starkly different to their marital standard of living. Carbone writes:
‘Divorce almost inevitably lowers the standard of living of the custodial family and, for systemic reasons related to gender, leaves the vast majority of divorced women in a financially more precarious position than their former husbands.’ (J Carbone, 'Feminism, Gender and the consequences of Divorce' in Freeman (ed), Divorce Where Next? (Dartmouth, 1996), at p 188)
Judicial discretion monopolised the application of the Matrimonial Causes Act 1973 (MCA 1973) favouring a needs based approach despite all the factors of s 25(2) (except for the interests of minors) applying with equal force. Recognising this Smart wrote: ‘...The major and overriding consideration to affect levels of maintenance is not so much the recipient’s need as the donor’s ability to pay.’ (C Smart, The Ties That Bind (Routledge and Kegan Paul, 1984)) The pervasiveness of the breadwinner/homemaker ideology manifested itself in a reasonable requirements based award in favour of the homemaker, whilst any surplus in matrimonial assets was automatically awarded to ex-husbands because it was perceived as his money. That approach disregarded women’s roles in marriage as beneficial to the earning capacity of their husbands. In stark distinction, for women, marriage is often detrimental to their own career development. The homemaker/breadwinner ideology became so ingratiated in ancillary relief law that women themselves were unaware of the damage their earning capacity was enduring. As Diduck describes:
‘Any material implications of a wife’s lower income or earning capacity are masked by her interrelationship with her husband’s wealth. On divorce ... she ... becomes acutely aware of her unequal wealth ...’ (A Diduck, 'Dividing the Family Assets', in Scalter an Piper (ed), Undercurrents of Divorce (Ashgate, 1999))
The application of ancillary relief law did not facilitate fairness between the parties; instead, it continued to instantiate a ‘cereal packet’ family model, which implicitly endorsed a hierarchy of contributions and it was not until almost three decades later that this systemic discrimination was vocalised.
TENTATIVE STEPS FORWARD
Eekelaar has held White responsible for a general restructuring of this area of the law. White indubitably cast a spotlight on the plight of women upon divorce. White was the catalyst, which began to diminish (though not eliminate) the disproportionate detriment women suffer during divorce by recognising the different yet equal spousal contributions, and rejecting the sexist ideologies which all too often influence the application of ancillary relief law. The change in judicial sentiment necessitated an approach, which had come closer to substantive equality than ever before.
It is clear from the first instance decision just how patriarchal ancillary relief law was. Mrs and Mr White as owners of Rexton Farm shared the burden of its financing, though Mr White’s father provided a £14,000 contribution. After 33 years of marriage and three children, the couple divorced. Their total assets equated to £4.6 million. At first instance the trial judge awarded Mrs White a reasonable requirements based award of £980,000 including her own assets. This represented 20% of the matrimonial assets she had spent contributing to her entire marital life as both homemaker and business partner. In contrast Mr White was awarded all the joint and surplus assets after his reasonable requirements were accounted for, including his need to continue farming: in flagrant disregard of Mrs White’s non-existent earning capacity, (other than her farming ability), her need to continue farming was deemed unreasonable. Clearly, the ideological family form envisaged by the law was of influence in the trial judge’s award. On appeal, she was awarded £1.5 million, equating to 40% of the marital wealth. Justifying the decision, Nicholls LJ averred: ‘Mrs White’s award was confined to her financial needs while Mr White whose needs were no greater scooped the entirety of the rest of the pool of resources.’
In an unparalleled move towards a genuine commitment to achieve fairness between the parties, Lord Nicholls expressly outlawed gender discrimination and expressed the importance of acknowledging the value of the homemaker’s contribution saying:
‘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.’
It became apparent that the socially construed dichotomisation between public/private and breadwinner/homemaker was no longer a manifestation of legal privilege. By replacing reasonable requirements with fairness, the yardstick of equality was intended as a measuring rod against which judges could appraise their decision in light of contemporary principles of gender respect and equality. Lord Nicholls prudently stressed:
'A judge would always be well advised to check his tentative views against the yardstick of equality of division. The need to consider ... reasons for departing from equality would help ... the court to ensure absence of discrimination.’
Dragging ancillary relief law out of a primordial era, the decision ‘marked a sea-change in the law of ancillary relief’ (E Cooke, 'Miller/McFarlane: Law in search of Discrimination' [2007] CFLQ 98). Cooke continues: ‘In ... big-money cases the yardstick of equality takes the place of reasonable needs, substituting for an outdated principle the intuitive attraction of equality.’ Herring finds Lord Nicholls’ dictum ‘... important in that it sends out the clear message that ... homemaking should not ... be considered as ‘second class’ work but of equal value to money earning.’ (J Herring, Why Financial Orders on Divorce Should be Unfair, [2005] 19, International Journal of Law, Policy and the Family 218). Effectively, Lord Nicholls took the first tentative steps to advocating a form of substantive equality: It forced ancillary relief law to respond to the often-concealed empirical evidence, which confirmed the great degree of spousal interdependency present in marriages. Diduck stated:
‘The court challenges historically gendered assumptions of fairness, contributions to family welfare, and the value of different kinds of work ... The decision has far reaching potential to achieve a form of substantive equality for women in cases of divorce...’ (A Diduck, 'Fairness and Justice For All? The House of Lords in White v White' [2001] 9 Feminist Legal Studies 173)
In commending White’s move towards non-discrimination, Bailey-Harris avers:
‘The principle of non-discrimination has proved to be of great significance, at a level of both policy and practice... Since White, the principle of non-discrimination has been consistently articulated in case law in relation to the division of capital on divorce.’ (R Bailey-Harris, 'The Paradoxes of Principle and Pragmatism: Ancillary Relief in England & Wales' [2005] 19 International Journal of Law, Policy and the Family 229)
The explicit move towards non-discrimination realised the potential of substantive equality. It demanded that the courts accept women’s realities as both different and disadvantaged and acknowledged the gendered ordering of familial relationships and how this can encroach on a homemaker’s earning capacity, whilst simultaneously maximising the breadwinner’s earning capacity. Illustratively, Lord Nicholls held: ‘There is increased recognition that, by being at home and having and looking after young children, a wife may lose forever the opportunity to acquire and develop her own money earning qualifications and skills.’ Providentially, White minimised the systemic malignancy of patriarchy, which has influenced ancillary relief law for so long.
The lack of any theoretical basis for the allocation of property post-divorce has left ex-wives to continue to carry the stigma of supplicants, rather than proprietors of a legitimate entitlement. Moreover, despite the comparable improvement towards reaching equality of outcome, at best this formal approach assumes a 50:50 division between spouses, which still disregards women’s disproportionate financial struggles post-divorce. Regan describes how ‘divorce ... often brings the economic disparity [between husband and wife] into sharp relief, as women’s financial condition worsens considerably compared to men’s. (M Regan, Alone Together, Law & Meanings of Marriage OUP 1999). Would it really be so outrageous to assume that a female’s reality warrants a bigger award than her ex-husband? The House of Lords also seemed unaware that Mrs White provided what could be described as a homemaker’s equivalent of a special contribution pursuant to her dual contribution in a gruelling business - wife and mother of three children. With respect, the House wasted an opportunity to recast the notion of special contribution in less gendered terms. Predictably, it has been women who have been castigated as a consequence of White’s shortcomings. This innate flexibility has allowed the judiciary and ancillary relief law, under the guise of judicial discretion, to be immunised from its involvement in the genesis of gender subordination.
MILLER, MCFARLANE AND MISSED OPPORTUNITIES
The famous cases of Miller/McFarlane [2006] UKHL 24 [2006] 1FLR 1186 fuelled the fire of the raging ancillary relief debate. The climate had become particularly volatile as affluent men feeling vulnerable, began to guard their wealth unscrupulously. Tooth, described Miller as ‘a gold digger’s charter,’ explaining:
‘Any attractive women will now say, “why should I work, when I can find a likely candidate and seduce him?” She’ll annoy him sufficiently that he’ll probably go off with someone else. But then ...will obtain enough to live the rest of her life in luxury.’ (R Tooth, 'Till Dosh Do Us Part' The Sunday Times, 5 October 2005)
It would be inaccurate to assume that, post Miller/McFarlane, ancillary relief has become substantive and theorised. ‘The aim of the House...’ writes Bailey-Harris, ‘was to provide guidance which would lead to consistency in the treatment of all cases ... but, the speeches are complex and do not speak with one voice.’ (R Bailey-Harris, 'Brevity is the Soul of Wit: The House of Lords on Short Marriages and Special Contribution' in the Ayesha Vardag Solicitors seminar The Implications of Miller v Miller for Ancillary Relief Practice, (lecture, 29 June 2006)) Given the judgement’s ambiguities, those aspirations failed.
The two most significant issues in Miller were the shortness of the marriage and Mr Miller’s pre-acquired wealth. It was thought abhorrent that after such a short childless marriage, Mrs Miller could receive £5 million of her husband’s money. The case elucidates that women are still valued according to their caring faculties, and only because it is conducive to the interests of patriarchy. Emphasising this point, Starnes (above) writes, ‘even though there is “no ‘nurturing’ hormone produced along with the mother’s milk [and] no ‘nurturing’ gene located in the extra X chromosome” homemaking is women’s work.’ Mrs Miller did not conform to the conventional role of homemaker, and so the decision was deemed contemptible. Appealing against the decision on the grounds of its duration Mr Miller failed. The court contentiously reasoned that the shortness of the marriage was attributable to his conduct. Whilst this decision allowed fault divorce to creep in through the backdoor, it was a logical response to Mr Miller’s impertinence. More innovatively, Mrs Miller’s legitimate expectation of an affluent lifestyle was a key element in the size of the award. The legitimate expectation thesis was, for the anti White protesters, the carte blanche for ‘Gold-diggers’ but for homemakers a step closer to a more desirable definition of fairness.
In contrast, in McFarlane, the couple were able to agree on an equal distribution of assets: the discrepancy arose as to the appropriate maintenance award, because capital assets were inadequate. The clean break objective, provided Mrs McFarlane with maintenance of £250,000, which provided a surplus of £120,000 beyond her needs. Yet this was not the result of the judges' benevolence: it was to facilitate a capital fund to enable a prospective clean break. During Mr McFarlane’s appeal, Bennett J objected to the likelihood of an accumulation of surplus income, provided by Mrs McFarlane’s award. Allowing the £250,000 figure, Bennett J reduced the maintenance provision from a joint lives maintenance order to a five-year extendable order. Mrs McFarlane cross-appealed and Lord Nicholls restored the trial judge's original order of maintenance for joint lives. Justifying his decision he said, ‘it would be ... inappropriate, and ... unjust to make a five-year order and place the wife in that position [of financial hardship] when five years has elapsed.’ For Lord Nicholls the appeal decision was insufficient to ensure that Mrs McFarlane would not endure financial hardship, and any assumption that substantial capital could accumulate was fanciful, when considering Mrs McFarlane’s needs and obligations.
What were Miller/McFarlane’s achievements? Miles describes the decision as exemplifying ‘English law’s pragmatic, needs-based approach, where the principles if any, determining the court’s awards are frequently unarticulated.’ (J Miles, 'Principle or Pragmatism In Ancillary Relief: The Virtues of Flirting with Academic Theories and Other Jurisdictions', [2005] 19 International Journal of Law, Policy and the Family 242) Despite the lack of clarity and scantiness of principles there is some praiseworthy reasoning. Importantly, subsequent to Miller the duration of the marriage is not a sufficient reason to justify a departure from equality, although what may be categorised as part of the matrimonial acquest could be influenced by the extent of the marriage. Further, McFarlane showed that compensation is a consideration gaining more heed since White and, in fact, Lord Nicholls even went so far as to suggest, ‘a convenient course might be for the court to consider first the requirements of compensation and then to give effect to the sharing entitlement.’ Undeniably, this is a step forward from the pre-White era. The application of special contribution was also expressly circumscribed, thus it must be inequitable to disregard. Baroness Hale advocated treating special contributions in much the same way as conduct, attesting: ‘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 shares.’ This is a welcome move when one considers how unbridled special contribution arguments have become. Additionally, the notion of legitimate expectation was introduced, which complimented the application of future income arguments.
Nonetheless, the weaknesses in Miller/McFarlane trump its strengths. Amongst the more pertinent weaknesses the Law Lords missed an opportunity to address the gender discrimination which can arise from the clean break objective. Ironically, it was BaronessHale who expounded that the ultimate objective ‘is to give each party an equal start on the road to independent living' but who seemed, with respect, not to appreciate that both spouses may not actually depart on the same roads and a woman’s reality may often necessitate that she take a very different direction to that of her ex-husband. Additionally, the discrepancy between judges as to the categorisation of assets and their respective allocations only served to exacerbate the potential for injustice during property adjustment. Lord Nicholls stressed that the yardstick of equality must be applied to any property acquired during the marriage regardless of its length and regardless of the nature of the asset but Baroness Hale introduced a distinction between matrimonial assets and family assets. Nicholas Mostyn QC has described this distinction as only likely to exist where the money is big and the marriage is short. Yet its potential for discrimination is rife. Lady Hale convoluted even further the categorisation of assets when she differentiated between assets accumulated in a ‘genuine dual career family’. Therefore, if both spouses have worked throughout the marriage and acquired assets unintended for the family, they can be exempted from the marital acquest.
Some noteworthy principles have surfaced. White advocated equality and non-discrimination; the case instigated the compensation theory and stressed that all strands of a section 25 apply with equal force. Miller/McFarlane solidified the application of compensation and introduced legitimate expectation; it circumscribed the invocation of contribution arguments; it facilitated fairness in short marriages; and it endorsed the importance of considering future incomes. Notwithstanding these arguably formidable achievements, ancillary relief law has continued to struggle to find a fair, philosophical basis in sbustantive equality.
THE NOT SO SPECIAL, SPECIAL CONTRIBUTIONS
Special contribution arguments have manifested into a culture in which almost every wealthy man has asserted his ‘special’ contribution. The special contribution concept is elusive. In H v H (Financial Provision: Special Contribution [2002] 2 FLR 1021), the trial judge asserted, ‘it is not easy to define ... a really special contribution, but ... like the elephant it is not difficult to spot....’ In Sorrell v Sorrell [2006] Bennett J described it as, ‘a simple concept that one of the parties has within him/her a seed of genius which will be recognised when seen....’ Diduck (above) remarks how:
‘Work associated with masculinity is privileged and work ... associated with femininity is devalued. In ... family law ... these gender meanings code nurture and homework as “devoid of intelligence and skill” and “connected with dependency and powerlessness”.’
Contribution issues present particularly thorny problems for ancillary relief law and for feminists it represents the anti-thesis of non-discrimination. Admittedly, special contribution arguments have been curtailed since Lambert v Lambert [2003] 1 FLR 139 however, the definition of ‘special’ is still vexed and its applicability ambiguous. As Eekelaar states, in contribution cases the definition is crucial because: ‘Contribution issues are particularly relevant to the ... distribution of assets ... they concern the extent ... to which the contributions to the family and/or acquisition of assets should affect that distribution.’ (J Eekelaar, 'Shoud Section 25 Be Reformed?', [1998] Fam Law 469.
The influence of contribution issues in financial orders is especially obvious. Ominously, the case law reveals how much discrimination this concept harbours. First expounded in Cowan v Cowan [2001] 2 FLR 192, at para [160] Mance LJ explained: ‘The spouse’s special skill ... is special to him or her, and the individual’s rights to the fruits of an inherent quality of this nature survives as a material consideration despite the partnership ... aspect of the marriage.’
Accordingly, Mrs Cowan was awarded £1.58 million. On appeal, this increased to £4.4 million or 38% of the marital acquest, because despite the 35-year marriage, Mr Cowan’s ‘family’s standard of living represented his life’s work.’ Perhaps during the 35-years, Mrs Cowan was just twiddling her thumbs.
In Dart v Dart [1996] 2 FLR 286, the matrimonial wealth was a colossal £400 million, and the parties had been married 15 years. Despite the reasonable requirements justification for Mrs Dart’s award, exceptional wealth, which was ‘directly’ generated by the husband, was clearly of magnetic influence on the conclusion of her shocking £9 million or more graphically, 2.25% award.
As a contribution case, Lambert provided false hopes. The marriage lasted 23 years, produced two children and amassed a wealth of £20.2 million. Connell J initially awarded Mrs Lambert 37.5% of the assets, explaining, ‘I do not see her role as pivotal ... He was an excellent businessman and manifestly successful entrepreneur.’ In warning against the risk of exaggerating the breadwinner’s contribution and decrying the homemaker’s contribution, he did exactly that. On appeal, Lord Thorpe remarked:
‘The danger of gender discrimination resulting from a finding of special contribution is plain. If all that is regarded is the scale of the breadwinner’s success then discrimination is almost bound to follow since there is no equal opportunity for the homemaker to demonstrate the scale of her comparable success.’
Mrs Lambert was subsequently awarded 50% of the matrimonial acquest. Fortunately, the bench had finally made what appeared to be a substantive appraisal of marital contributions, s, taking a lunge forward in circumscribing contribution cases and eliminating gender discrimination.
As one might expect, this momentum was transitory, as Sorrell v Sorrell [2006] 1 FLR 497 forcefully reintroduced special contribution. Moor suggests that it was ‘the start of the long awaited “husband’s fight back”.’ (P Moor QC, 'The Section 25 Interpreter: Ancillary Relief and Capital Provision', [2006] Fam Law 108) In this instance the marriage lasted over 30 years, accumulated £73 million of assets and produced three children. Recognising Mr Sorrell as an advertising tycoon, Bennett J awarded him 60% of the assets because, ‘his genius was the generator of that fortune.’ Post Sorrell, it seemed (as warned by Mostyn in Lambert) that rich men were invoking special contribution arguments with mantra-like loyalty. H v H (above) is another case whereby the husband asserted his special contribution towards the accumulation of the £6 million of matrimonial wealth. Yet, as described by Mrs H, he was really no more than a successful city solicitor. The amassed wealth was not remarkable and his work was not genius. G v G (Financial Provision: Equal Division) [2002] EWHC 1339 (Fam), [2002] 2 FLR 1143 paras [33]-[3 saw a successful property developer invoke his special contribution towards the £8.5 million of marital wealth. Recognising the dangers of contribution arguments, Coleridge J stressed:
‘...This concept has become the central important issue in almost every case where the assets exceed the party’s reasonable needs. Hardly a case is heard nowadays than that one party usually the husband seeks to establish that he has played a markedly more valuable part in the accumulation of the wealth.’
In Charman V Charman (No 2) [2006] EWHC 1879 (Fam), [2007] 1 FLR 593 Mr Charman claimed his special contribution and unjustifiably disparaged his ex-wife’s, despite the £100 million wealth having been generated entirely during the marriage. Recognising Mr Charman as an insurance mogul, Coleridge J held, ‘...his remarkable abilities in the insurance world, his energy and wealth creation ... is wholly exceptional and gross.’ Portraying the often-implicit judicial attitude towards contribution cases, Coleridge J found that, ‘she is quiet if not reticent ... but determined ... He is dynamic, energetic and a self-made entrepreneur.’
Unsurprisingly, Mr Charman was conveyed as the genius, Mrs Charman the ‘attentive’ beneficiary of such genius. And so, the ‘sharp carving knife rather than the salami slicer’ was used to allocate 62% of the matrimonial wealth to Mr Charman.
Evidently, ‘special contribution’ has become a surreptitious pretext for the legal sanctioning of a hierarchy of contributions. However, not everyone has received contribution issues with such cynicism. Guest suggests that special contribution ‘... should be, an ... enduring feature of matrimonial law in ... Australian and English jurisdictions.’ (P Guest, 'An Australian perspective on the evolution of the law in relation to the assessment of special contributions in 'big money' cases: never mind the law, feel the politics,' [2005] 19 International Journal of Law, Policy and the Family 148) He explains, ‘... [special contribution] validates recognition of an individual’s right to the value of his or her innate skill and intelligence.’ Indisputably, there will be cases, which warrant recognition of a special talent, yet to avoid discrimination only extraordinarily ‘special’ contributions should be recognised. The Mills v McCartney [2008] 1 FLR 1508 case is a textbook example. Categorically, McCartney deserved recognition for his special contribution because ‘musically speaking he was extraordinarily talented.’
The proliferation of contribution arguments has compelled legal practitioners to feel obliged to consistently assert the homemaker’s business contribution, therefore implicitly undermining the homemaking contribution. Bailey-Harris questions whether such an approach ‘necessarily involved the (discriminatory) starting point that domestic contributions are not intrinsically of equal value with those that generate money but only become so by virtue of their duration?’ (R Bailey-Harris, 'Case Reports: Ancillary Relief, GW v RW (Financial Provision: Departure from Equality)' [2003] Fam Law 386) Evidently it is the quantity of homemaking contributions that is prioritised over the quality. There have been countless cases where homemakers have provided extraordinary contributions such as caring for the family (whilst the husband pursues his career away from home), akin to a single parent. Undoubtedly, his prolonged absence will invariably be a massive encumbrance for the homemaker. M v M is a quintessential example. That Mrs M was left to independently care for two children (one of whom was learning disabled) for substantial periods was accorded no value, despite Baron J herself referring to Mrs M’s ‘single parent’ like circumstances.
Australian courts have now recognised this. In Lynch v Lynch [2000] Fam CA 1353, the judge held:
‘In relation to the homemaker role, evidence may demonstrate the carrying out of responsibilities well beyond the norm ... for example where the homemaker has the responsibility for the home and children almost entirely ... without assistance from the other party ... or in cases such as the care of a handicapped child.’
Further, homemakers who have sacrificed their careers to care for families have never been recognised for their special contribution. Instead, they may be awarded compensation. However, unlike compensation, the recognition of a special contribution sends out a powerful symbolic message to influence society as to the value of these contributions; it is not loss related. In CR v CR [2008] 1 FLR 323, the wife’s extensive career sacrifices, made exclusively for the husband, went unnoticed. Diduck (above) argues, ‘no matter how long the marriage, or without regard to how the family roles were decided or carried out, contribution was deemed not relevant at all.’ That women are often exposed (through marriage and their husband’s investment choices) to financial ruin has also never been considered a special contribution. Mostyn emphasised this in Lambert: ‘As to entrepreneurs, they live dangerously: the wife is not shielded when the husband’s efforts result in bankruptcy, she fully shares the risks.’ Further, it is rare that the homemaker will have a choice in such matters. Additionally, women who have agreed to re-locate overseas, to accommodate a husband’s career or desire to capitalise on overseas tax savings, have equally, never been recognised as providing an exceptional contribution. This is the corollary of the exploitation of their perceived ‘altruism’.
Ingleby maintains that there has been an ‘unwillingness ... to evaluate contribution in a coherent manner,’ in order to pay heed to principles of equality. (R Ingleby, 'Introduction: Lambert and Lampposts: the End of Equality in Anglo-Australian Matrimonial Property Law?' [2005] 19 International Journal of Law, Policy and the Family 137) Fineman agrees, writing: ‘The concept of contribution, while conforming to reformers’ concern for the extreme circumstances of the stereotypical victimised housewife, may have permitted them to ignore some of the harder questions because it facilitated the perception that equal treatment was the ideal solution.’ Parkinson disagrees, advocating an equal division of the fruits of the marriage; he finds such an approach is: ‘Perceived to work an injustice in a small number of cases ... involving extraordinary talent which result in financial success but ... the equality principle is optimal in utilitarian terms, even if it undervalues genius.’ (P Parkinson, 'The Yardsticks of Equality: Assessing Contributions in Australia and England,' [2005] 19 International Journal of Law, Policy and the Family 163) Parkinson’s approach oozes with formal equality and abstractionism but, with respect, does not acknowledge the not so ‘small number of cases’ which require more than a 50:50 division in favour of the homemaker to facilitate fairness. Furthermore, it is interesting that he has assumed that special contributions, which may not be recognised, are likely to derive from the male because, as we know, 'genius' and 'breadwinner' have become practically synonymous.
The goal is not to eradicate contribution issues altogether: this only prioritises formal equality. The goal is to recognise and reward the truly special cases abandoning hyperbole and denigration of marital contributions for a redefinition of ‘special’ that is reconcilable with homemaking contributions. Any subsequent departure must remain modest to avoid undermining what Bailey-Harris (above) describes as ‘the ideology of non-discrimination/incommensurability/equality.’ Admittedly, the re-formulation of such a definition is likely to be troublesome. Brasse asserts that the difficulty exists because, there is ‘no universal ... measure by which domestic contributions could be compared with wealth creating ones.’ (District Judge Glen Brasse, 'It's Payback Time! Miller, McFarlane and the Compensation Culture' [2006] Fam Law 647) However, this re-formulation is viable and the aim must be to ensure ‘financial contributions made to a marriage from the public world ... [will not be considered] of greater value ... when translated into quantum than contributions ... made in the private world’ (S Edwards, ‘Divisions of Assets and Fairness - Brick Lane - Gender, Culture and Ancillary Relief on Divorce,' [2004] Fam Law 809) And while this approach may be criticised for inculcating ancillary relief with yet more discretionary potential, it is the necessary opportunity cost of achieving a substantive, approach to special contributions.
THE RHETORIC AND REALITY OF ‘SELF-SUFFICIENCY’
The clean break principle was enunciated in section 25A of MCA 1973 and was conceived to facilitate self-sufficiency by severing the financial ties between divorcing couples. It was thought that by treating both parties equally they could leave the marriage on an equal par. Arguably, the s 25A objective has been pursued with more rigour than any other principle. Regan describes it as ‘transforming the spouses into strangers ... It permits a distribution of assets that ostensibly gives each divorcing spouse an equal chance at succeeding after divorce.’ (M Regan, Alone Together, Law and Meanings of Marriage (OUP, 1999)) The introduction of s 25A was arguably to temper the reactions of numerous ex-husbands who saw long-term maintenance as de-motivating, and iniquitous. In discussing the reaction, Pointer writes, ‘the phrase “meal ticket for life” obtained general currency as husbands and the press condemned the vicarious largesse of the judiciary.’ ( M Pointer, 'Meal tickets for Life? 1984 and all that' para 2 in The 1 Hare Court seminar, 24 April 2008) The Law Commission also observed that, ‘...there was widespread feeling...that greater weight should be given to the importance of each party doing everything possible to become self-sufficient.’
Despite the rhetoric of equality, the motivations behind the principle were to continue to serve the interests of the male elite. As such, the clean break objective is plagued with dilemmas because of the fundamental contradiction in its genealogy. It is a schizophrenic concept, which endorses financial independence and self-sufficiency whilst simultaneously stripping ex-wives of any financial stability with one off, inadequate capital awards. Awards are often inadequate because most families, even in ‘big-money’ cases, have little liquid assets. Rosettenstein asserts ‘... the inability to achieve liquidity in an asset portfolio impacts the goal of achieving fairness.’ (D Rosettenstein, 'Big Money Cases and Unequal Distributions: Value, Risk, Liquidity and Other Isse on the Road to Unfariness' [2005] 19 International Journal of Law, Policy and the Family 206) The clean break can often epitomise this problem. Furthermore, it can often disguise an ex-husband's motivation to avoid sharing the fruits of his future income. Judges have often felt inclined to implement a clean break and are reluctant to give ex-wives a share in their ex-husbands future incomes in order to avoid disenchanting breadwinners from working hard. This argument was advanced in M v M (Financial Relief: Substantive Earning Capacity) [2004] EWHC 688 (Fam), [2004] 2 FLR 236 where the husband asserted ‘he would have no incentive ... [to work hard] ... if he were to lose 40% of his earnings.’ He also revealed, ‘... the possibility of a large bonus was a real incentive but if he learned that, whatever his effort, he would only receive 60% of it then he would not continue.’ Yet the husband’s submissions reveal that moments before, he justified his ‘punishing work schedule’ because of wanting to ‘ensure financial security for the whole family.’ Clearly, Mr M wanted to ‘have his cake and eat it.’ The judiciary has now become less susceptible to such manipulation and the husband’s earning capacity has frequently been considered a matrimonial asset. In Charman, the appeal court confirmed, ‘... likely future income must always be appraised for even in a clean break case such appraisal may ... be relevant to the division of property which best achieves the fair overall outcome.’
The most insidious flaw in s 25A, is that it is entirely devoid of insight. At best, it optimistically assumes that post-divorce, women will ‘march down to the Labour Exchange, clutching their decree absolute and their CV’ (M Pointer (above)) and secure a job which accommodates their hectic schedules and provides ample financial security. At worst, it assumes that ex-wives will just re-marry. Both presumptions are crude and mistaken. As to the former presumption, the reason why women will often face Herculean struggles when competing in the labour market has already been discussed but to reiterate, it is the result of the combined damage to their earning potential during marriage, and often because they will continue to be the primary-carers of children post-divorce. As to the latter presumption, women also face difficulties in the marriage market post-divorce. Whilst I am not suggesting that every divorcee will attempt to re-marry in an attempt to alleviate her financial struggle, those who do wish to re-marry do face difficulties. Addressing this, Ellman asserts:
‘Prevailing social mores, relatively universal and ... intractable, cause the woman’s appeal as a sexual partner to decline more rapidly with age than does the man’s ... Even though the man’s appeal as a sexual partner also declines with age, the financial assets he brings to the marriage typically increase ... softening the decline in his marriageabilty ... If she has children already by a previous marriage, they may well have a negative value for prospective mates.' (M I Ellman, 'The Theory of Alimony' (1989) 77 Calf Law Rev 1, at pp 43-44)
As women age, they are no longer as pleasurable to the phallus, and their perceived worth declines; and as to their domestic contributions, they become less appealing because of the associated "baggage" women will bring with them from their previous marriage, namely, children and financial responsibility.
The time is ripe for the courts to acknowledge that the clean break really is not so clean after all. In fact, it smells of abstractionism. Douglas and Perry provide compelling evidence, illustrating that post-divorce: ‘...women’s incomes were far more likely to have declined and remained depressed than those of men. Nearly two-thirds of ... women had experienced an overall drop in the income available to them after separation.’ (G Douglas, A Perry, 'Research: how parents cope financially on separation and divorce - implications for the future of ancilary relief,' [2001] CFLQ 67) To make matters worse, the implementation of a clean break has often forced judges to encroach on other distribution principles such as compensation and sharing and this is undeniably the anti-thesis of fairness. Thus, the equal sharing of responsibility and equality of distribution implicit in the clean break objective is at the expense of genuine substantive equality. As described by Fineman, ‘...the result is unrealistic, even cruel, given the practical situation of many women.’ (M Fineman, The Illusion of Equality, (London, 1991)) Until the courts acknowledge that the clean break objective is at best, hopeful and at worst, mendacious, women will continue to be subjected to the gruelling challenges of post-divorce ‘self-sufficiency’ whilst their ex-husbands skip gleefully down the road to independence entirely unscathed.
PALM TREE JUSTICE
In Charman, Coleridge J famously held that:
‘The parties need all the help they can get from previous authority to assist in negotiation. In a field as discretionary as this one, it is often hard to provide real guidance, which limits rather than promotes debate. Pandora is constantly vigilant for opportunities to unlock the box.’
Ancillary relief law is an innately subjective area of law. Whilst this subjectivity can often be particularly beneficial for aiding fairness, it can also be especially treacherous. On the one hand, the concept enables the individual circumstances of each case to be decided on its merits, thus complimenting a substantive form of equality. On the other hand, it can also provide judges with the liberty to engage in inadvertently biased reasoning. This is because, essentially, the law’s claim to judicial neutrality is merely a myth: judicial discretion can be but a minefield. Judges like all persons are influenced by their experiences of life and community. This explains why ancillary relief law judgements are so often overshadowed with gendered overtones. As Naffine articulates, ‘the wheels of law are oiled by deeply held assumptions about the nature of people and about the purpose of society.’ (N Ngaire, Law and the Sexes: Explorations in Feminist Jurisprudence (Allen and Unwin, 1990)) Inescapably, the judiciary is influenced by ideologies of homemakers and breadwinners and make judgements, often inadvertently, about the importance of such roles. Aware of the potency of judicial discretion, judges aim to be impartial. Nevertheless, by doing so not only do they fail to take women’s humanity seriously, they also deprive themselves of fundamental information; information which is often especially relevant to the outcome of the case. Subsequently, this lack of information becomes misinformation. Ancillary relief law undeniably requires judicial discretion to function fairly and achieve justice yet, as Eekelaar (above) describes, ‘...without some guidance we may be entering a very unsettled period.’
To implement the substantive, philosophical framework for ancillary relief law, as outlined above, I believe presumptive guidelines are required to minimise the dilapidation of ancillary relief law any further. Presumptive guidelines make the realisation of a substantive, philosophical framework, realistic. As Eekelaar (above) states: ‘There simply is no substitute for the laying down of some agreed conventions which indicate a presumptive basis for reaching a fair balance in redressing the consequences of the unequal distribution of risks between the parties.’ The following presumptive guidelines should be implemented to achieve substantive fairness in a consistent manner:
- When a homemaker leaves the marriage with a realistic possibility of obtaining employment and where there are extensive capital resources to facilitate adequate financial security without requiring maintenance, there should be a presumption of a 55:45 division of assets in favour of the homemaker. Factors including no longer having to care for children and the possession of pre-marital skills or qualifications can help determine a homemaker’s post-divorce employment prospects. Further, if the ex-husband has an extensive earning capacity, which has been enhanced during the marriage, there should be an automatic entitlement to a share in his future income although this entitlement should be limited in time. However, this should not include bonuses earned after separation.
- When a homemaker leaves a marriage without any realistic possibility of obtaining employment, and there are, extensive capital resources to facilitate adequate financial security, there should be a presumption of a 65:35 division of assets in favour of the homemaker. Factors including, the obligation to continue caring for children, a lack of pre-marital skills, or a significant degeneration in her earning capacity can help determine a homemaker’s post-divorce employment prospects. Further, if the ex-husband has an extensive earning capacity, which has been enhanced during the marriage there should be an automatic entitlement to a share in his future income, with the possibility of an extension in time. However, this should not include bonuses earned after separation.
- In instances where the capital assets are low but the husband has a very high earning capacity, which has been enhanced during the marriage; for a homemaker with no viable prospects of employment, which offer acceptable financial security, there should be a rebuttable presumption of a 65:35 division of assets in favour of the wife. In addition, there should be an automatic entitlement to a share in the husband’s future income, with the possibility of an extension. The presumption should remain rebuttable to accommodate the decrease in financial security for both parties as a result of the deficit in capital assets.
- In instances where the capital assets are low but the husband has a very high earning capacity, which has been enhanced during marriage, for a homemaker with viable prospects of employment which offer acceptable financial security, there should be a rebuttable presumption of a 55:45 division of assets in favour of the wife. Additionally, there should be an automatic entitlement to a share in the husband’s future income, without the possibility of an extension. The presumption should remain rebuttable to accommodate the decrease in financial security for both parties as a result of the deficit in capital assets.
This would provide a concrete framework for the attainment of genuine fairness within a substantive, theoretical grounding, which allows for judicial discretion, whilst minimising the possibility of gender bias on behalf of the judiciary. This approach illustrates that consistency and subjectivity no longer have to be diametrically opposed. Most importantly, as another form of affirmative action, it takes women’s acutely disproportionate post-divorce struggle seriously.
CONCLUSIONS
Ancillary relief law has failed to take up the challenge of achieving a fair philosophical basis in substantive equality. Despite the realisation of the potential of substantive equality, ancillary relief law, and the judiciary more specifically, has instead, complacently bandied around ‘equality’, in an attempt to achieve what has transpired to be capricious fairness. Consequently, ancillary relief law remains unprincipled, inequitable, and unpredictable. The effect on women has been especially more pernicious as the rhetorical ‘equality’ culture has made gender discrimination harder to detect. Divorce rates in the United Kingdom are at their highest and women continue to shoulder the profound burdens of familial responsibility. The creation of a principled and substantive approach to address the judicial tinkering, and discriminatory lacunas, which continue to permeate this field is long overdue. Clarity, substance, and theory are desperately needed. The ancillary relief domain must realise the economic, ‘public’ importance of homemaking contributions and the complimentarily of a rebuttable property adjustment framework. Whether the ancillary relief legal maiden will remove her blindfold in the next big money divorce case and facilitate a substantive philosophical approach is hard to say.
The author wishes to thank Dr Alison Diduck of UCL and Kim Beatson of Anthony Gold for their assistance during the preparation of this article.
