Do family courts discriminate against husbands, or wives?
Family Law is an extremely informative publication, billed as essential reading for family law professionals. As with all legal journals, some contributions are so esoteric they require more concentration and stamina than others, but I still persevere. An exception would be a detailed article I read many years ago, about the intricacies of Child Support before its reform. It was written by a mere barrister then, now Mr Justice Mostyn and frankly, I gave up trying to understand it part way through…
Reading the June 2012 edition of Family Law, however, left me with a wry smile. There are two articles, appearing almost back-to-back, by two different sets of lawyers who pose the same, perfectly valid question – but from differing perspectives.
The first duo asks: Do family courts discriminate against husbands? Their conclusion: “The authors consider that it is tempting to draw the conclusion that there is still a degree of gender discrimination within the court system.”
Unwittingly the second duo provides an answer too, in another article titled Till death or remarriage do our finances part? They ask if, in cases of post-divorce spousal maintenance, “there is the start of the pendulum away from the receiving party (still usually the wife) and back towards the paying party (still usually the husband)?”
I do not doubt that if asked, many of my readers would state without hesitation that the law is biased. I also suspect that some would say that it favours women, and others would argue as firmly that it favours men. In fact, does it favour either of them?
Arguing that husbands are discriminated against, the authors of the first article cite the case of K v L  EWCA Civ 550 , which I have previously covered on the blog. This is the case where the wife inherited £57 million from her late grandfather in the form of shares, thirteen years before the parties married. The shares were always kept separately in the wife’s name and the family lived modestly. On divorce the husband received £5 million, which more than covered his stated needs. He appealed, contending that he was entitled to about £18 million given the length of the marriage and that he had only received 10 per cent of the assets. He argued he was entitled to share in all the assets. His appeal was dismissed in a beautifully succinct judgment of Lord Justice Wilson (now Lord Wilson) in the Court of Appeal.
The authors then go on to discuss the case of S v AG  EWHC 2637 (Fam), which I have also covered here. This concerns a lottery win, where the husband’s needs were just met and he too was denied any share in the wife’s win, which had occurred post-separation.
They then go on to compare and contrast with the earlier case of Miller v Miller  UKHL 24, where the marriage was less than three years old but the wife was awarded a lump sum of £5 million out of a marital acquest of £12-17 million. (Acquest is the wealth acquired during the marriage.) The husband’s total wealth amounted to more than £30 million.
I respectfully disagree with the authors’ tentative conclusion that “there is still a degree of gender discrimination within the court system.” Since the Miller judgment in 2006, there have been far more applications of the sharing principle in White v White  UKHL 54, and far more cases involving ring fencing of non-matrimonial assets such as inherited or pre-acquired assets.
The Lords’ judgment in White v White in 2000 was when the concept of equal sharing, of surplus assets after needs had been taken into account, became the accepted starting point. For many it became the finishing point when the assets had been accrued during the marriage, for financial settlements between a wealthy divorcing couple, irrespective of one party’s role as the bread winner and the other party’s role as the homemaker. Nevertheless in that same judgement it was made clear that where needs could be met without recourse to non-matrimonial assets, they would likely remain in the hands of the recipient. So the ability of the court to ring-fence non matrimonial assets was also made clear.
Miller v Miller was a case in which the principles of sharing the marital acquest made the news, but equal sharing is nothing new in jurisdictions where community of assets is the law. It was news in our jurisdiction where matrimonial assets were being equally shared, because a large sum of money was earned during the marriage, albeit a very short marriage. So on the face of it, the wife was entitled to an equal share in the marital acquest because it had been earned during the marriage. Nevertheless the outcome of the case, which was finally heard by the House of Lords in 2006, did not divide the marital acquest equally, and still ring-fenced the assets brought into the marriage. It was the amount itself (£5 million to the thirty-something wife) which was staggering, rather than the principle. To argue that there was gender bias is, I think, to ignore the basis on which the division actually occurred and was approved by the House of Lords.
Personally, I objected to the outcome in Miller v Miller on more straightforward grounds. I think the wife’s needs could have been met for less and, once her needs were met, I would have found in favour of the husband, accepting his arguments for good reasons to depart from equality.
Six years later the jurisprudence now seems clearer still. Non-matrimonial assets that are ring-fenced will be preserved and protected, provided needs can otherwise be met. It is unlikely there will be sharing of such non-matrimonial assets, and this has nothing to do with the favouring of a wife over the husband. Consider the case of AR v AR  EWHC 2717 where, out of £25 million, the wife’s needs were assessed at circa £4 million and the rest remained with the husband. A similar result occurred in the case of Grubb v Grubb  EWCA Civ 976. If minded to do so, you could strongly argue the husbands benefitted rather than the wives.
But I don’t think this is gender discrimination at all. Rather, it is a clear determination on the part of the court to allow a non-matrimonial asset to remain with the party to whom it originally belonged.
Compare and contrast, however, with the second article in Family Law. Here, the new case of L v L  EWHC 2207 is considered. This article focuses upon the financial subject that seems to excite readers of my blog most of all: namely, continuing maintenance and when and if there should ever be a cut-off point post-divorce for wives who receive a maintenance order without a term being imposed at the start.
The authors of the article look at the law and at this particular case, in which the amount of maintenance was reduced on appeal, and a non-extendable time bar imposed. They ask if some sort of turning point has been reached in favour of the paying party (usually the husband). These authors, too, hark back to the Miller days, when the cases of the Arsenal footballer Ray Parlour and the accountant Ken Mcfarlane were also heard. In those cases, no capital clean breaks were possible and because of the facts, no term bars were imposed – although the Court of Appeal did state that they would expect Mrs Parlour to become self-sufficient within a certain time frame. So even if there was gender discrimination (which I don’t think there was), is there gender discrimination now against the payee?
Again, I don’t think so.
I believe each case comes down to the individual judge’s interpretation of the partie’s needs, and nothing more. In L v L the wife was a successful business woman in her own right and had other resources. In fact the judge in the case, Mrs Justice Eleanor King, expressly stated it was not necessary for her to consider the current state of the law as to extendable terms. Instead, presumably on the case’s facts, she stated that “it cries out for a term order.”
I don’t think that the law discriminates between husbands and wives in this way. Instead I believe that judges interpret “need” in different ways, at different times in different cases. Argument currently abounds, however, as to how to calculate needs and to what extent sharing in all the assets surplus to need, particularly non matrimonial assets, should thereafter occur.
In 2011, Baroness Hale gave the Audrey Ducroux Lecture to members of the International Academy of Matrimonial Lawyers, of which I am a member. Exploring this vexed subject of “the principle of equality”, she concluded:
“I think that I would rather allow couples who wanted to do so to contract out of the sharing principle than engage in a wholesale review of the principles of ancillary relief which might well result in the abandonment of that sharing principle even for those who are happy with it.”
To my mind, observations in one or two cases do not amount to a valid argument for “gender discrimination”. What can be argued, however, is that the law requires simplification and how that should be achieved. This subject is currently occupying the brains at the Law Commission and I am eagerly awaiting their proposals.
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Marilyn Stowe is the senior partner in Stowe Family Law, which has offices in Yorkshire, Cheshire and London. With more than 30 years’ experience handling divorce cases and family law proceedings she is regarded as one of the most formidable and sought after divorce lawyers in the UK. In 2012, Marilyn became one of the first solicitors to qualify as a family law arbitrator.
All persons mentioned in the scenarios are fictitious: details have been deliberately changed in order to protect identities and other confidential circumstances of my clients. All advice and information on this blog including posts written by guest authors, is given only as a general guide to the operation of the law on the date of publication. Readers must place no reliance whatsoever on the content of this blog and must always obtain their own legal advice. Marilyn Stowe, Stowe Family Law LLP and guest authors accept no liability whatsoever arising as a result of reliance upon its content.
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