Possession is two halves of the law

Last November there was a revolution in the arena of family law following the judgment in the House of Lords in the case of White v White. It was the biggest shake-up of divorce law in 30 years and, not surprisingly, the courts are still working out what it all means.

Payne Hicks Beach family law partner Ian Airey, together with associate Simon Beccle, represented Pamela White in her legal battle for a half share of the family's £4.6m farm business. The Law Lords stopped short of saying that a couple's assets should be split on an equal basis, but ruled that equality should be regarded as the yardstick.

“It's a complete sea change in the way that these cases are approached or dealt with,” says Airey, adding that it heralds “a concept of equality and fairness” that was not present in divorce law before.

He expresses surprise at the boldness of the Law Lords' ruling. “They've not just said that there had to be this yardstick of equality,” he says. “They've also made it absolutely plain that the contribution of the wife, as mother and homemaker, should be viewed as equal to the contribution of the breadwinner, and to view it in any other way is sexual discrimination.”

The four-year legal battle saw Pamela White and her former husband fighting for an equal share in a farm business which they had built up over 33 years. The court allowed her to keep the £800,000 payment that her husband made when they divorced in 1996, and the £700,000 that the Court of Appeal had awarded her two years later.

This is the first time that the Law Lords have ruled on an interpretation of the Matrimonial Causes Act 1973, Section 25, which sets out the factors that a court should consider when dealing with a spouse's financial claims. In the past, financial settlements have been assessed in large-money divorces by looking at the needs of the wife and thereafter allocating a sum of money to buy a house and another sum to provide an income. Airey says: “Once her needs have been dealt with in that way, then the rest of the capital that might have built up during the marriage would usually be left with the husband.” According to Airey, the Law Lords ruled that this approach was “flawed” and that reasonable requirements were “not the starting point and finishing point of these cases”.

They ruled that the correct approach was to consider all of the factors in the legislation, especially the contributions that parties had made. Airey says: “Having reached a preliminary view as to what was the appropriate division of the matrimonial assets, this has to be checked against the yardstick of equality and only departed from with good reason.”

Family lawyers predict years of satellite litigation as the courts work out the consequences of the ruling.