Lonely hearts

Recent cases have seen divorce law shaken up, with the courts in dispute about what's fair. Martin Loxley reports

If contemporary music albums were redefined, reshaped and repackaged by Sgt Pepper then the House of Lords attempted the same feat in ancillary relief in White v White (2000). Practitioners spent hours seeking to interpret, apply and, if it suited, distinguish the wise words of the Law Lords. Its impact, like the aforesaid album, was massive.
Just before White, a husband was advised by counsel to look for settling at approximately £2m. Within days of the judgment, the same counsel was advising that settlement should be more like £3m.
The Lords' intention was to bring more clarity and certainty and less gender discrimination to the arena of ancillary relief. Regrettably, as with any major change, none of these intentions were immediately obvious from the judgment.
The Court of Appeal's response – the Led Zeppelin IV – was awaited with anticipation. Would we be shown the 'stairway to certainty'? It came in the shape of Cowan v Cowan (2001) 2 FLR 192 – the plastic bin liner case.
Again, reams were written and hours spent on digesting 52 pages of the judgment. We looked for clarity, but we may as well have been hopping on the misty mountain.
Despite the assertion that Mrs Cowan could have done no more within the marriage – she had made a major contribution to the business, brought up the children, looked after the home – she didn't get the 50 per cent that the Lords seemed to suggest wives should get, but got just 38 per cent. The court accepted that Mr Cowan's contribution had been “stellar” in creating “an almost unchecked progress to success in business and with it, affluence”.
The difficulties created by this judgment were that it opened the door for husbands with successful businesses to argue that they had created the wealth and they were entitled to more than 50 per cent.
It also seemed to fly in the face of one of the major parts of the White case – that there should be no discrimination between the money-earner and the homemaker and child-carer.
This case showed that it is easier to establish an exceptional contribution in the business field than in the domestic workplace. A point which was followed in the later case of L v L [Financial Provision: Contributions] 2002, where Mr Justice Connell referred to the husband's contribution as exceptional and awarded him 63 per cent of a £20m pot. Leave to appeal has been given to the wife.
However, in October last year, a solo artist, who has hitherto produced some very worthy pieces, provided us with what could be his definitive album – his Blonde on Blonde. Mr Justice Coleridge in HJ v HJ (2002) not only recognised that times they are a-changing, but banged a drum for practitioners when he said: “This is an area of jurisprudence which is in a state of uncertainty.”
Unhampered by other band members, he provided a clear, concise and understandable judgment, spawning a number of notable hits including: if there is a full and equal contribution to a long marriage then it should be 50-50 and the court should be slow at “nibbling at the edges”; if children need to be funded – in this case there were children at university – the cost should be met by the husband if his earning capacity is greater; no account should be taken of children from further relationships – in this case the husband had a 13-month-old child with his new partner.
In a case where after a 25-year marriage the value of assets was £2.7m, where the husband had created the wealth while the wife, after the birth of the first child, had stayed at home, Judge Coleridge awarded 50/50.
This became the first reported case since White where a wife had actually received an equal share. It remains to be seen whether this will be a defining piece of work.
There are many other very able solo artists yet to make their own album in this area. Nevertheless, for now we have a judgment which gives weight to what the House of Lords was trying to achieve: Section 25 factors are ranked equally; cases are decided based on the basic premise of fairness; fairness is a subjective standard; the results are checked against the desirable aim of equality; there is no discrimination between the money-earner, the homemaker and the child-carer; reasonable requirement is no longer the guideline which restricts a wife's entitlement.
Martin Loxley is a partner and head of family law at Irwin Mitchell