White v White: the equality ‘yardstick’

In White v White ([2001] 1 AC 596, HL) a couple divorced after thirty years of marriage. The appeal concerned the ancillary financial relief proceedings. This was a case where the couple’s joint assets were more than sufficient to meet the needs of them both. The House of Lords had to consider how the discretion conferred on the courts by the Matrimonial Causes Act 1973 (‘the Act’) should be exercised in cases such as this. Mrs. White sought an order giving her an equal share in all of the assets. Lord Nicholls gave the main judgment. He pointed out that this was a case where there was an ‘equality of contribution’ by Mr. and Mrs White over the course of their marriage. This was an important feature of the case (at 602).

Section 25 of the Act requires the court to have regard to all the circumstances of the case when exercising its discretion; the welfare of children is of first importance. Section 25(2) contains a list of factors to which the court is to have regard. Section 25(2)(f) requires the court to have regard to, ‘the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after or caring for the family’. Lord Nicholls made the point that the need for the outcome to be fair meant that there was no place for discrimination:

‘But whatever the division of labour chosen by the husband and wife, or forced upon them by circumstances, fairness requires that this should not prejudice or advantage either party when considering paragraph (f), relating to the parties’ contributions … If, in their different spheres, each contributed equally to the family, then in principle it matters not which of them earned the money and built up the assets. There should be no bias in favour of the money-earner and against the home-maker and the child-carer ‘ (at 605)

A judge may be minded to order an unequal division of the couple’s assets :

‘Before reaching a firm conclusion and making an order along these lines, a judge would always be well advised to check his tentative views against the yardstick of equality of division. As a general guide, equality should be departed from only if, and to the extent that, there is good reason for doing so. The need to consider and articulate reasons for departing from equality would help the parties and the court to focus on the need to ensure the absence of discrimination.’ (605)

There is no presumption of equality (only a ‘yardstick’) but:

‘Today there is greater awareness of the value of non-financial contributions to the welfare of the family. There is greater awareness of the extent to which one spouse’s business success, achieved by much sustained hard work over many years, may have been made possible or enhanced by the family contribution of the other spouse, a contribution which also required much sustained hard work over many years. There is increased recognition that, by being at home and having and looking after children, a wife may lose for ever the opportunity to acquire and develop her own money-earning qualifications and skills.’ (605 – 6)

Judicial approaches that would give the wife enough to meet her needs but would allocate any surplus over needs to the husband mean that ‘discrimination would be creeping in by the back door.’ (608) Needs are only one factor and the court needs also to have regard to factors such as the available resources and the parties’ contributions (609).

‘In my view, in a case where resources exceed needs, the correct approach is as follows. The judge has regard to all the facts of the case and to the overall requirements of fairness. When doing so, the judge is entitled to have in mind the wish of a claimant wife that her award should not be confined to living accommodation and a vanishing fund of capital earmarked for living expenses which would leave nothing for her to pass on. The judge will give to that factor whatever weight, be it much or little or none at all, he considers appropriate in the circumstances of the particular case.’ (610)

The Court of Appeal had awarded Mrs. White two-fifths of the couple’s net wealth (almost doubling the amount awarded at first instance) and the House of Lords upheld this award.

Michael Lower



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