These are the notes that I took as part of my Family Law module and used to revise for the assessment, in which I scored a good First Class mark. The notes are easy to follow and well structured, with cases and academic commentary highlighted throughout.
Ancillary Relief
- Most ases ealthy ases as they e the o ly o es ho a affo d to litigate!
- Sums allow courts freedom to do what they want. But of little relevance to everyday average cases. Usually
sole focus is meeting needs. These are when the assets outstrip the needs.
- Hence huge discretion.
The Court’s discretion
- Statutory code set out in s.25 MCA 73
- Criticised: can create unfairness and unpredictability.
- Last year Law Commission published report critical at extent of discretion and proposed formula to limit
discretion. But nothing happened yet.
The Cases
- White v White [2000] 2 FLR 981
o Case stopped husbands arguing that wives should not only get their reasonable needs met. Not
objective is sharing.
o Made London divorce capital of the world. Immediate effect on wealthy husband and wives.
o FACTS: 30 year marriage. Farming family partnership. He wanted her reasonable needs met. Court
held oth had o t i uted to ealth, e e though she as just fa e s ife.
o … the e is o e p i iple of u i e sal 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
espe ti e oles … hate e the di isio of la ou hose y the hus a d a d ife, o fo ed upo
the y i u sta es, fai ess e ui es that this should ot p ejudi e o ad a tage eithe pa ty.
per Lord Nicholls
o Case also famous for introducing non-matrimonial property that is not available for division. Since
fa ought y hus a d s fathe .
o Should easu e agai st ya dsti k of e uality.
o Case raised many questions:
What is non-matrimonial property?
Should be division of income as well as capital?
When do we depart from equality?
- Cowan v Cowan [2001] 2 FLR 192
o FACTS: Long marriage, husband amassed fortune with draw-string bin liners. Because he made a
stella o t i utio ie had illia t idea fo usi ess a d eati e ge ius, he was awarded more
than half of capital. But CA emphasised must be at a high level to justify departure.
- Lambert v Lambert [2002] EWCA Civ 1685
o FACTS: Long marriage, assets of £20m. Husband had business before marriage, argued stellar
contribution. But CA held not had stellar contribution, no fantastic idea, just worked hard. CA held if
husband merely had to create wealth would lead to discrimination since wives cannot demonstrate
this when working in the home.
- Miller v Miller; McFarlane v McFarlane [2006] UKHL 24
o Miller FACTS: wife got £5m even though only married for 3 years, but husband had increased wealth
considerably and wife given up job.
o HL held that stellar contributions can only be taken into account if inequitable to disregard it.
Nicholls: Disparity in contribution has to be obvious and gross. (same wording as conduct which is
hardly used, so shows HL trying to limit its use).
o McFarlane FACTS: division sharing already agreed. Issue was income. Husband on about £900k a
year. Wife argued should get share as given up job as lawyer to look after children. Awarded her
250k per year expressed as percentage of future income as COMPENSATION for given up
opportunities.
- Charman v Charman No. 4 [2007] EWCA Civ 503
o FACTS: husband amassed over £31 from business. CA held stellar contribution as transformed
prospects of business. CA held when stellar contribution, must be a significant uplift on share. Held
husband range could get between 55 and 66% of assets.
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, Computation stage: decide which of the assets are relevant to division of property for a fair
outcome
Distribution stage: establishing need, compensation and sharing in the light of the available
resources and any circumscribing factors
Equality the starting point which can now be departed from in some circumstances
- Rossi v Rossi [2006] EWHC 1482 (Fam)
o FACTS: Couple separated 30 years earlier. Wife generated wealth by turning around family antique
business. Court held non-matrimonial property since she had generated wealth since separation.
- S v S [2006] EWHC 2793
o For there to be stellar contribution, it must induce a gasp not a gulp.
o In this case just a gulp, bit boring as a chartered surveyor only generated £1.2m as business
surveyor, but did get some credit as financially successful for a long time before the marriage.
- Robson v Robson [2010] EWCA Civ 1171
o CA refined approach to inherited assets.
o Long marriage (over 20 years), £20m assets. But most inherited by husband, including estate in
Oxfordshire. Court gave her £8m. She appealed. CA gave her less! £7.
o Ward LJ held inherited assets can be ring-fe ed ut do t al ays have to be, depends on nature.
Eg inherited farm will be dealt with differently than ancestral castle.
o Also depends on length of marriage ie if used for longer, less likely to be ring-fenced.
o Held no set percentages, formulas and no correct answers. An a t ot a s ie e .
Hence no consistent principles.
Summary
- Needs
- Sharing/compensation
- Departure for stellar contribution
o Capital
o Income
Position even less clear. Conflict over which objective to pursue.
Generous reasonable needs or income sharing orders?
Income Provision
- Child maintenance (CSA 91)
o PWC always entitled through CMS (formerly CSA)- dealt with by CMS
- Spousal maintenance (MCA 73)
o At discretion of court – dealt with by court
- Most people do t get spousal ai te a e.
Child maintenance
- Child Maintenance Service (formerly the CSA)
o Can get information from Inland Revenue rather than parents.
- Court has no jurisdiction unless parties agree
o Even then after a year, court order will lapse and either party can apply through CMS
o Even if court does make an order, still uses same calculation from Child Support Regulations.
o Simple calculation – percentage of gross income depending on amount of children there are.
‘e ei i g pa e t ho has ost of ti e gets the pay e t.
1/7 reduction for each night of contact
Percentage reduction if paying parent has other children.
- Departure regulations
o If paying parents has high costs of making contact, debts from relationship etc regulations can give
court discretion to depart from regulations (very limited circumstances).
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