#1791 - Justifications For Financial Relief - Family Law

Why the system has no justification

Ferguson: We’ve lost touch with the old ideas

• Ancillary relief used to be about provision for wife during the marriage

  • When the couple married, the wife acquired a right to support during the marriage

    • Justified obligation on husband for the wife – could choose to give cash, land, food etc, but had to support her

    • Obligation attached to marriage and was during marriage

      • Current regime only kicks in when marriage ended

  • The obligation to support came from coverture – joining of legal personalities

    • All assets of wife became husband’s, so needed obligation to support

    • However, wife could not enforce this obligation even though it existed

      • But if she had need, she could operate the agency of necessity by taking things, and he would be billed for it.

  • Some statutes of this remain e.g. s.2 Domestic Proceedings and Magistrates Court Act 1978 (periodic payments lump sum orders under 1000) – now obsolete.

• We then extended the obligation to support after relationship breakdown if she was faultless

  • MCA 1857 = allows divorce on fault

    • Only if W is innocent that entitled to divorce on limited grounds

    • Lord Penzance:

      • Without this, H will triumph over sacred permanence of marriage will be complete

      • To him, marriage will have been a temporary arrangement

        • To such a man, can still say that must support woman first chosen and discarded

        • Injury against her, not for her own sake

• So far, so good. But then we extend W financial relief if she is at least partly at fault

  • Lady’s friend in Parliament was able to try and help her neogitate in divorce for some kind of relief

    • Ferguson: Guilty wife getting something is a problem if marriage is mutual obligation – she caused it to breakdown

• The death knell - No fault divorce

  • 1969-1984

    • Can decide to end legal status as no fault as matter of choice

    • But regime ties together financially

      • Going to respect legal status change, but not the financial consequences.. going to impose them instead

  • Can see this in different formulation

    • S.25 = obligation on the court was to place the parties as far as possible in situation as if marriage has not broken down

      • But this didn’t make sense b/c while we got rid of the dodgy justification (that we could give relief even when one party was at fault)

        • The checklist was left to be applied – with no new justification put in the place of the old justification.

    • Law com = somewhat difficult to have regime with no basis at all

      • Solution = introduce idea of “clean break” financial provision

      • What we should do is emphasise self sufficiency more, so consequences end sooner

        • But even if you do this, it’s part of the regime

        • Still forcing it, even if for small amount of time.

Can we find new justifications instead?

Spousal Support and Care of the children

• Herring:

  • Supporting the child will inevitably involve providing benefits to the residential parents

    • i.e. luxury house!

    • But included in the support for children must be an element to provide personal care for the child

  • So one ground for spousal support is to ensure a spouse is maintained to the level so they can care for the child

• Eekelaar and Maclean: Should equalise the standard of living of the two households, and thus of the children within them

  • This equalisation is not due to some kind of implied undertaking between the parties, but b/c of the moral claim of the child –

    • The child’s household should not be disadvantaged to the benefit of the non residential parent’s household.

• BUT Ferguson:

  • But if this is the case, all of this could be achieved by the child support regime – doesn’t justify financial provision regime.

    • Also, financial provision applies even if couple have no children.

Contract

• Herring: could be argued that one person has breached the marriage contract

  • So that the other person must pay “damages”

  • Each spouse promises to be a lifelong partner

    • So if a husband decides to divorce his wife, he must pay her damages so she is in the economic position she would have been during the marriage

• BUT Herring:

  • Law has given up trying to work out who breached the contract

  • Most people don’t see marriage as a contract in this way

Partnership

• For

  • Moge v Moge [CAN]: Marriage should be regarded as analogous to a partnership

    • The H and W co-operate together as part of a joint economic enterprise, each providing common benefits

      • E.g. H provides money from job, W makes the home

  • Lord Nicholls in Miller v Miller:

    • In marriage, the parties commit themselves to sharing their lives

      • When their partnership ends, each is entitled to an equal share of the assets of the partnership,

        • unless there are good reasons to the contrary - fairness requires no less.

• Against

  • BUT Eekelaar: Partnership does not necessarily lead to equal division

    • At the end of the relationship, investment each party has put in is one side of the balance sheet

      • And this is set against assets and the earning power which each has at that time

      • If there is disparity, an adjustment will be made to equalise the position – marriage is a joint enterprise demanding equal rewards for equal effort

  • Herring:

    • The partnership approach might be inappropriate in the absence of some express agreement to share the family assets

  • Ferguson: Division of the partnership in others contexts tends to be based on effort

    • If one party based on effort, than one person entitled to more or less on effort

      • But this doesn’t look like the financial relief regime though...

• Herring

  • Herring: Three difficulties

    • The partnership approach might be inappropriate in the absence of some express agreement to share the family assets

      • Although could say that marriage is a distinct relationship, so the relationship and responsibilities should arise even w/o express agreement

    • Where there are future earnings, what if H can prove that he would have advanced just as well anyway?

      • And if a friend helps us advance, we don’t generally think we should pay them. Why is marriage different?

    • Approach does not take needs into account – dividing assets to share may not adequately meet the needs of spouse who cares for children

  • BUT approach provides a sound basis for financial support – we’re not arguing that one spouse should transfer money to the other

    • But to consider the assets jointly owned.

  • Ferguson:

    • The problem with this is that it is circular reasoning – we can only imagine the partnership model b/c we assume it exists

    • Ellman: in short partnership principles have no content that actually directs a court to emphasize or ignore marital misconduct

      • What we’ve got is a “partnership” but nothing from that to say what should happen with it

    • Partnership idea does not make sense

      • Either we have a 50-50 split to begin with or we base the approach on effort

      • Can’t just jump to one or the other b/c we don’t like the start idea

Equality

• Eekelear:

  • Equality of Outcome?

    • i.e. a 50-50 divide

    • BUT Herring: the needs of the parties, particularly in relation to children, will be different

      • So giving the parties equal assets will not produce and equal standard of living

  • Equality of Opportunism?

    • Where each spouse has the opportunities to enhance his or her economic position in the labour market

    • BUT Herring: Prevailing social structures (which include discrimination against women in employment) mean that perfect equality of opportunity is impossible to achieve.

• Herring: Take into account the costs of raising children

  • Weitzman:

    • As long as women are more likely to not earn as much as men

    • And women are more likely to be involved in the main child rearing

      • Then we can’t say that men and women should be treated as equals in the divorce procedure

      • We need to find ways to safeguard and protect women – not only to achieve fairness, but to encourage and reward those who invest in our children.

Compensation

• Baroness Hale in Miller v Miller

  • This is the idea that we compensate for relationship generated disadvantage

• Herring: This can take two forms

  • (i) the non-earning spouse should be compensated for loss of earnings which she should have gained had she not been at home caring for the children or the home

  • (ii) The non-earning spouse should in retrospect be paid an appropriate wage for her work by H as if she had been employed

    • Perhaps halved b/c W also benefits from...