Twenty years forward - Twenty years back

This blog was first published in New Law Journal on 20 November 2020

30 November 2020

It is now twenty years since the landmark White v White decision which saw a move forwards for a divorcing party who was the home-maker and child-carer. White v White introduced a starting point, that “equality should be departed from only if, and to the extent that, there is good reason for doing so”. As Lord Nicholls summarised; “There should be no bias in favour of the money-earner and against the home-maker and the child-carer”. 


This was a celebrated decision at the time, considered a sign that the law was catching up with society. White v White focused on the need to ensure the absence of discrimination and as Lord Cooke observed, “it will do much to enable English matrimonial property law to meet the requirements of contemporary society”. The intent was that a decision made whilst the marriage was happy, for one party to work and the other to stay at home, should not financially backfire on the non-working spouse upon a later divorce, by restricting her (and it is usually her) to a financial award that meets her needs, with the working spouse scooping up the remaining pot. It is important to note however, that the starting point of an equal division applies only to capital, not to income where there is no such assumption of a husband’s income being shared equally with his non-working wife.

In the twenty years since White v White the law and has naturally developed both in terms of what will constitute a good reason for departing from equality and what is considered ‘fair’. The outcome will always depend on the specific facts of each case but there are established reasons why an equal split of the available assets may not be a fair outcome. For example, if the pot for distribution consists of pre-acquired assets or inheritance, then the party in receipt is likely to argue that the pre-marital or inherited element should be excluded and retained by them. Similar arguments are made when looking at post-separation assets which have been built up by one party’s efforts and work (rather than by passive economic growth) after the breakdown of the marriage. Harder to argue but often attempted, is that equality should be departed from due to one party’s special contribution and usually this is raised by the bread-winner to justify a weighting of the financial outcome in their favour. Conversely, there are arguments surrounding one party’s ’relationship generated disadvantage’ where compensation is sought, usually by a wife, for sacrificing her career in favour of being a ‘home-maker and child carer’.

These are just some of the commonly argued reasons why there should be a departure from equality and they will only have a chance of success if the needs of both parties and any minor children can still be met. None of these weaken the starting point of White v White which is still entirely applicable, two decades on. More often than not where parties have assumed very different roles during the marriage, it is the husband’s career that has continued and gained in momentum and the wife’s whose has been put on the back burner or stopped completely.Does the very fact that White v White is still so relevant today, twenty years on, show how little progress we have made in the way in which women’s careers are so frequently sacrificed?

There has been a shift in attitude in the last twenty years when it comes to the perception of England (and particularly London) as the divorce capital of the world due to big financial awards being made to wives in high value divorces. In addition the ‘meal ticket for life’ (lifelong spousal maintenance) which England has become known for awarding to wives has also come under significant scrutiny and criticism about the message this gives.

Since March, we have seen a disproportionate impact on women’s employment as a result of the Covid-19 crisis. One of the main reasons for this is that five times more women than men reduced their working hours during the pandemic to care for children when schools and nurseries closed, resulting in those women being less able to continue or properly balance their paid work. The Institute for Fiscal Studies and the UCL Institute of Education found that mothers were 47% more likely to have quit or permanently lost their job since the start of the crisis.  To many it is a real puzzle why both genders allow and condone such disparity and how society can enable the Coronavirus Pandemic to have such a devastating effect on gender equality, which could set women’s careers and position in the workplace back decades.

In a year which saw the 50th anniversary of the Equal Pay Act, we must look not only at how far we have progressed but also recent steps back. Women’s workplace equality is not where it should be at the best of times but thanks to Covid-19 many face an even starker two-tier work model, exactly as anticipated by White v White; where men go to work and women stay at home.

It seems then that White v White remains as applicable today as it was twenty years ago but whether that is a mark of anti-discrimination to be celebrated or a sign of inequality to be rectified, is for individual interpretation, for ‘fairness, like beauty lies in the eyes of the beholder’.

Read the article  first published in New Law Journal on 20 November 2020 here (subscription required).

About the author

Abby Buckland is a Partner in the Family and Divorce team who undertakes matters involving all aspects of private family law and in particular complex financial issues and private children cases. Abby gives clear, sensible advice and takes great care of her clients, working strategically and creatively to achieve the best possible outcome. She has particular expertise in cases involving complex financial disputes (often involving trust assets, family wealth or inheritance), farming divorces, pre and postnuptial agreements, all issues concerning the arrangements for children, and in cases involving international elements.

 

Further information

If you are affected by any of the issues covered in this blog, please contact a member of our team of family and divorce lawyers or click here to get started online and find out where you stand. 

Our team of family lawyers has considerable experience of farming divorces and the difficulties these cases can present

 

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