Question:

"A footballer who earns 100,000 per

week earns that because he is on the
pitch playing football. Certainly, the
skills he was born with, and the
development of those skills (which may
well have happened during his marriage)
are all reasons why he can command his
salary, but he will not get paid unless he
plays football. The footballer has to fill
the unforgiving minute with sixty
seconds worth of a distance run [after
the marriage]." - Mr. Justice Mostyn
Discuss financial provision after divorce
in light of this quotation.
By: Roshan Melwani
Date: December 14, 2014
Teacher: Mrs. Helen Reece
Word Count: 2364

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The issue of whether ex-spouses ought to bear continuing financial

responsibilities for each other after divorce is highly contented and is subject
to a wide spectrum of opinions in judicial literature. On the one hand, feminist
schools of thought utilise the arguments of female economic dependency on
men and structural inequalities in society to justify a division of assets largely
in their favour. Yet the clash of mindsets is evident in the case of BvS, where
Mostyn J firmly outlines his repudiation towards the sharing principle of
financial assets and income advocated by Lord Nicholls in the landmark case
of White v White. The aforementioned quote reflects his belief that postseparation income and earning capacity should be left untouched because
ultimately, it is most likely the husband (or potentially the wife) who puts in the
hard-work to earn their own income, especially if there is a special
contribution from one side. Scrutinising feminist critiques and the principles
from contemporary case law and, this essay will highlight how the law on
financial provision in its current shape requires serious reform.
In contrast to the dicta in McFarlane v McFarlane, the argument that women
ought to be compensated for no longer having their income earning capacity
prior to their marriage seems all too hypothetical. While one can sympathise
with Mrs. McFarlane for forgoing a career in a city law firm, the principle of
compensation unjustifiably turns a blind eye to a difficult life-choice that she
ultimately made. In a contemporary and pluralistic world where divorce is
increasingly prevalent, it should not come to Mrs. McFarlanes surprise that
marriages do not always last forever. In making an intentional decision to
prioritise her children at the expense of her economic prospects, the law
ought to hold Mrs. McFarlanes ability to make her own life choices to
account. Anything otherwise suggests the law makes the presumption that
women arent individuals who should be taken seriously as agents of their
own fate. Consequently, there seems to be inexcusable legal doublestandards for Judges to continue issuing maintenance orders, entitling wives
to escape often harsh economic realities after divorce, while husbands enjoy
no such luxury. As Scottish Law Commissioner Eric Clive points out, there is
something fundamentally repulsive about the whole idea of dependent
women since economic independence is largely the cornerstone" of the
women's movement. Therefore, while the respective principles of equality and
compensation in White and McFarlane can be lauded in their noble intentions
to counterbalance societal gender discrimination towards women, in the long
term these intentions are directly undermined because maintenance ultimately
perpetuates female economic dependency on men. Since the nature of
maintenance is a retrospective, redistributive order, allowing increasingly
generous sums will not solve the wider issues of discriminatory employment
practices in the labour market. Therefore, Katherine ODonavan reckons that
abolishing a Courts power to issue maintenance under section 23 of the

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Marital Causes Act 1973 through renewed legislation is a more pragmatic

solution in catalysing change in social norms towards financial provision and
gender inequality. This is because it will incentivise both spouses to engage in
sensible discussion at an earlier stage of their marriage to figure out ways to
ensure their own individual financial security in the event of divorce.
Ultimately, since each married couple know their own financial situation best,
Eric Clive points out that such reform should be encouraged if it will lead to
financial independence, where married partners would secure more equitable
and comprehensive financial arrangements for themselves that privately
tailored to their own specific needs.

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In conjunction with the above arguments, a theoretical point must also be

made about the message the law on financial provision projects to society.
Since the law holds an emblematic function to encourage citizens to do the
right thing, it ought to be concerned when the law projects a norm to women
suggesting that a life absent of ambition is acceptable. Although spouses can
still have the choice to stay at home, this does not mean the law should be
systematically encouraging financial reliance on men, especially to younger
generations. Social commentators such as India Knight finds it unsettling that
the law on financial provision concomitantly encourages women to become
career homemakers, who are able to get by in life by leeching of their
husbands. "Accordingly, Charles Js reasoning in G v G that the lifestyle
enjoyed during marriage should set the benchmark for a wifes financial
provision is the exact principle that India Knight finds troublesome as it
explicitly discourages female empowerment. An overly generous periodical
payment order provides an unmerited security net that can be exploited, whilst
discouraging the payer to pursue their careers for fear of increased future
income claims. This is not even to mention the injustice to second-wives who
may have to work in order to maintain her husbands ex-wife. As J Patyna
succinctly summarises, it is about time women ask themselves why do they
believe they have a right to walk out of a marriage with a handsome profit.
The second argument against the laws current state on post-separation
financial provision is highlighted from the faults of the equal contribution
principle in divorce. Belinda Fehlberg neatly describes equal contribution as a
theory where Courts are required to treat the marriage as a Joint Economic
Enterprise, where each partner is entitled to an equal share of the profits
upon the dissolution of their partnership. This principle is applied by Lord
Nicholls in the case of Miller v Miller, arguing that fairness implies equal
division since both spouses jointly contributed to their marriage for their
mutual gain, even if such contribution is made in their own separate spheres.
While the argument conceivably justifies an even redistribution of assets on
the surface, the law has simultaneously imposed its own attitude on marriage

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by making the presumption that spouses view each other as equal

contributors. The partnership model is also based on the debatably flawed
assumption that breadwinning and homemaking are activities equal in value.
For instance, a spouse's actual contribution within the household will
significantly vary from person-to-person in each case, whereas the
contribution from a money-making spouse can be directly quantified and
measured. One wife may be working relentlessly to take care of the familys
children, while another may simply be sitting upon her powdered bum, as
Katherine ODonovan puts. Based on the example, it is thus unreasonable not
only to assume that every homemaking spouse puts in an equal effort, but
also to conclude that these domestic contributions arbitrarily equates to 50%
of the financial assets earned by their partner. As Stephen Cretney asks, isnt
it rather simplistic and far-fetched for home-making contributions to be
equated in economic value with a commercially-motivated money-making
activity? Consequently, the partnership model may sound equitable in theory,
in practice its only a romantic and symbolic ideal, where as Rebecca Harris
argues, fails to achieve "substantive equality of outcome" for the spouse most
"prejudiced by the circumstances of marriage".
Moreover, an additional problem with the partnership model is exposed when
comparing big money cases like Miller and Charman with more ordinary
cases where assets do not meet the financial needs of both parties. In
applying the model, it seems inconsistent to suggest Mrs. Charmans housemaking contributions should be valued at 48 million pounds, whereas that
provided by the wife of an impoverished blue-collar worker may only be worth
a paltry few thousand. Mostyn Js concerns in the quote are directly
addressed when professors Caroline Frantz and Hanoch Dagan further
develop this line of argument that the sharing principle could extend to
intangible future earning capacity. This is best exemplified with Mostyn Js
footballer" example, finding it problematic to assert that a footballers
income is a product out of marriage, as opposed to being a result of his own
footballing skills, talent and hard work. Housework is ultimately limited to
relatively basic and fundamental skills, but not everyone can play in the
English Premier League. The marriage as follows is of little relevance, if none
at all, when the footballer is expected to perform well on the pitch to justify his
prolific 100,000 per week salary. The link of how housework or child rearing
contributes to a footballers passing or shooting abilities is obscure at best.
This can be said for many other professions, so the law ought to be subject to
serious reassessment to qualify what a dependent spouse has done to merit
half the profits, potentially accumulated over decades of hard-work and talent
by their money-making partner.

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The laws only response has been in the inadequate form of Cowan v Cowan,
where Thorpe LJ was willing to depart from the yardstick of equality in very
limited circumstances where a spouse has brought an extra-ordinary
contribution to the marriage. While a football-playing husband may be able to
apply the ratio, there is still no guarantee since the principles are applied ad
hoc and success is largely at the Judges discretion. Robson v Robson
indicates it is appropriate for a Judge to redistribute a husbandss nonmatrimonial property to meet needs, in this case Mr. Robsons inherited
ancestral castle, because the intertwining of lives in a long-term marriage
effectively makes the nature of the husbands original assets become
irrelevant. However, the same cant be said for affluent wives. The
inconsistency is apparent in K v L, where Judges accept the argument that a
wife can ring-fence her inherited wealth to the exclusion of her husband,
despite having been in a long-term marriage. Evidently, judicial law-making
has led to unpredictable and inconsistent outcomes because there is minimal
statutory guidance and structure as to when Judges ought to apply which
principles. For the law as a whole, this is a challenging problem that must be
tackled if the purpose of a legal system is to provide a systematic and
predictable mechanism for resolving disagreements.
However, this is not to say that female spouses may be left with unjustified
financial burden, especially if children are involved. M v B demonstrates that
in certain cases, fairness may require the wife to have more than half of the
assets because if she is responsible for their childrens upbringing from the
divorce onwards. Where financial resources are thin, its logical to conclude
that the law give effect to the child-rearing divorcees additional financial
requirements. Since children are the product of a partners marriage, a
husband shouldnt be able to abandon his parental responsibilities, leaving
the wife to unjustified economic burden. Yet this once again demonstrates the
inflexibility of the partnership model as it not only fails to adjust to the
technicalities of each case, but also does not provide any indication to a
husbands non-financial obligations to his children. Katherine ODonovan
raises the important problem that current debate on ancillary proceedings is
predominantly limited to financial questions, without valuing the importance of
the emotional and developmental care for children. The idea that one spouse
can effectively pay-off their normal parental responsibilities through
maintenance or periodical payment orders is detestable. In turn, financial and
non-financial obligations should not be compartmentalised into two separate
issues when a couples children are at stake, as an effective legal outcome
entails a holistic and smooth arrangement for the parties livelihood after the
marriage. This is especially true if the Law Commissions policy objectives of
divorce law require interests of children to be of overriding importance.

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As such, the question that follows is, how should the law change? On a
theoretical level about the law, the problem in upholding post-divorce
maintenance is that it is arguably out of place to utilise abstract social policy
concerns to justify and dictate the principles used in particularly personal,
relationship breakdowns. However, from the vehement discussion above, it
evidently remains unavoidable. Therefore, in accordance with Rebecca Harris
viewpoints, if social policies are to underpin the distribution of assets on family
breakdown, they at least ought to be clearly defined. Apart from a list of
factors in section 25 of the Marital Causes Act 1973, the statutory regime
does not provide direct guidance on how Courts should make awards in
different familial circumstances. The post-White landscape effectively renders
the statute to be irrelevant. This means that Judges have thus been left with
no choice but to formulate legal principles from case law as seen above,
decision-making power on complex and controversial issues of social policy
such as gender inequality and financial provision should not be left by default
in the hands of the Judiciary. Rebecca Harris contends that a pluralistic
society requires a holistic rather than a piecemeal vision of legal regulation of
the family. Therefore, the indeterminate nature of the Marital Causes Act
1973 means that it fails to provide clear identification of the proper function of
the law in ancillary relief proceedings. The question of how to distinguish the
financial consequences for different types of relationship breakdowns should
be the task of the Law Commission to answer. The Law Commission even
recognises that statutory reform is desirable as litigants oftentimes fail to
reach agreements outside the judicial arena because they are hampered by
a lack of awareness of the laws aim on financial provision. From there,
Thorpe LJ points out in Dart v Dart that the reformation process should ideally
be "followed by Parliamentary debate and legislative articulation of policy.
Legislative clarity will lead to more effective, holistic and consistent outcomes
in ancillary relief proceedings; thus hopefully reducing costly litigation and
disruptive legal intervention, whilst saving valuable court resources.

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On a final note, an alternative solution to maintenance following Radmacher v

Granatino is through the Law Commissions recommended introduction of
legally-enforceable, qualified nuptial agreements (QNAs). Not only will it
provide the platform for couples to privately govern and tailor their financial
arrangements to their individual and familial needs, but will also encourage
autonomy and financial independence from an earlier stage. In fact, it is
logical to assume that QNAs will result in more fair outcomes since the parties
are more likely to agree to mutually favourable terms at a stage where the
relationship is still stable. Consequently, the legal and financial certainty from
a QNA will be mutually beneficial upon breakdown because it will result in
decreased litigation and reduced hostility between the parties.

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Bibliography
Books:

1. S Gilmore and L Glennon, Hayes and Williams' Family Law (3rd,

Oxford University Press, Oxford 2012)
2. J Herring, R Probert and S Gilmore, 'Division of Assets on
Separation' in Great Debates in Family Law (1st, Palgrave Macmillan,
Oxford 2012).

Articles:

1. E Clive, Family Law, Report on Aliment and Financial Provision,

(Scot. Law Com. No.67, 1981)
2. K ODonovan, Should All Maintenance Be Abolished?, Modern
Law Review Vol 45. [1982]
3. I Knight, 'Mugged by a toxic wife', The Telegraph [2004]
4. J Patyna, Why Must Men Pay this Fine?, London Evening News
[August 9, 1978]
5. B Fehlberg, With All My Worldly Goods I Thee Endow?,
International Journal of Law, Policy and the Family 176 [2005]
6. S Cretney, Black and White, 31 Family 3 (2001)
7. S Clarke, The Law Commissions Report on Matrimonial Property,
Needs and Arrangements, FamilyLawWeek.co.uk [2013]
8. R Bailey-Harris, Dividing the Assets on Family Breakdown: The
Content of Fairness, M. Freeman: Current Legal Problems [2001]
9. C Frantz and H Dagan, Properties of Marriage, 104 Columbia Law
Review 75 [2004]

Cases:

1. B v S (Financial Remedy: Marital Property Regime) [2012] All ER D

2. White v White [2000] 3 FCR 555
3. Miller v Miller; McFarlane v McFarlane [2006] UKHL 24
4. G v G [2002] 2 FLR 1143
5. Charman v Charman [2007] EWCA Civ 503
6. Cowan v Cowan [2007] EWCA Civ 679
7. Robson v Robson [2011] QSC 234
8. K v L [2011] EWCA Civ 550
9. M v B [1998] 1 FLR 53
10. Dart v Dart [1996] EWCA Civ 1343
11. Radmacher v Granatino [2010] UKSC 42

Notes
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6 Jan 2015 12:22, Helen

of
6 Jan 2015 12:22, Helen

The quotation can just about bear this interpretation but in context it's clear that Mostyn J is talking more
narrowly.
6 Jan 2015 12:22, Helen

Closer but still too strong.

6 Jan 2015 12:22, Helen

Unclearly expressed
You also needed to set this up in the previous paragraph.

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6 Jan 2015 12:22, Helen

having forgone
6 Jan 2015 12:22, Helen

This is quite a deep point:

Even if marriages don't last forever, does that mean that we can't hold people to their promise?
And do we want people to behave as if their marriages were contingent?

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6 Jan 2015 12:22, Helen

j
6 Jan 2015 12:22, Helen

?
6 Jan 2015 12:22, Helen

o
6 Jan 2015 12:22, Helen

Too casual
6 Jan 2015 12:22, Helen

c
6 Jan 2015 12:22, Helen

are
6 Jan 2015 12:22, Helen

Too casual
6 Jan 2015 12:22, Helen

s
6 Jan 2015 12:22, Helen

from pursuing
6 Jan 2015 12:22, Helen

I am really not liking these hyphens

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Notes
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ii

6 Jan 2015 12:22, Helen

it
6 Jan 2015 12:22, Helen

'
6 Jan 2015 12:22, Helen

which
6 Jan 2015 12:22, Helen

Yes, and a premier league footballer will certainly be able to pay a nanny and housekeeper.
6 Jan 2015 12:22, Helen

bring himself within

6 Jan 2015 12:22, Helen

Too strong
6 Jan 2015 12:22, Helen

Before adopting this cynical explanation, you should at least consider the explanation the Court of Appeal
gives.
6 Jan 2015 12:22, Helen

with
6 Jan 2015 12:22, Helen

of
6 Jan 2015 12:22, Helen

Note the date of her article.

6 Jan 2015 12:22, Helen

Therefore
6 Jan 2015 12:22, Helen

.
6 Jan 2015 12:22, Helen

;
6 Jan 2015 12:22, Helen

An interesting conclusion - you are basically saying "if I'm going to hate the law, at least make it clear.'
Are you happy with that?
6 Jan 2015 12:22, Helen

it
6 Jan 2015 12:22, Helen

wr
6 Jan 2015 12:22, Helen

Is there such a thing?

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