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The decisions of the House of Lords in White v White [2000] and Miller;McFarlane [2006] completely transformed the law of ancillary relief in the pursuit of gender-based equality between the parties. While this jurisprudence is to be welcomed, a range of uncertainties persist which means that future litigation is inevitable. Giving reasons for your answer, discuss the extent to which you agree with this statement.

The decisions of the House of Lords in White v White [2000] and Miller;McFarlane [2006] completely transformed the law of ancillary relief in the pursuit of gender-based equality between the parties. While this jurisprudence is to be welcomed, a range of uncertainties persist which means that future litigation is inevitable. Giving reasons for your answer, discuss the extent to which you agree with this statement.

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An essay for the 2011 Undergraduate Awards (Ireland) Competition by Monica McAloon. Originally submitted for Law with Politics at Queen University Belfast, with lecturer Miss Lisa Glennon in the category of Law
An essay for the 2011 Undergraduate Awards (Ireland) Competition by Monica McAloon. Originally submitted for Law with Politics at Queen University Belfast, with lecturer Miss Lisa Glennon in the category of Law

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Published by: Undergraduate Awards on Aug 31, 2012
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10/27/2013

 
The decisions of the House of Lords in White v White [2000] and Miller;McFarlane [2006]completely transformed the law of ancillary relief in the pursuit of gender-based equalitybetween the parties. While this jurisprudence is to be welcomed, a range of uncertaintiespersist which means that future litigation is inevitable.Giving reasons for your answer, discuss the extent to which you agree with this statement.
The Matrimonial Causes Act came into effect in 1973, however, the House of Lords firstopportunity to deal with this legislation only came about in 2000 in
White v White
1
. In this essayit will be argued that the decision in this case completely transformed the law of ancillary relief and that the decision in
 Miller;McFarlane
added to the transformation. It is principally due tothese decisions that such great strides have been made towards gender based equality in theancillary relief system. At first glance this jurisprudence was welcomed, but as the uncertaintieshave come to light the positive reception has given way to calls for reform. The mainuncertainties from the House of Lord’s decisions will be highlighted as well as their impact onthe likelihood of litigation. Any clarity achieved by subsequent case law will also be emphasised.One of the first points to note about the ancillary relief system is the scope of thediscretion it provides. As Lord Nicholls commented in the
White
case, “These wide powersenable the courts to make financial provision orders in tune with current perceptions of fairness.”
2
 However, this wide discretion from a piece of legislation that is “notorious” for having, “no starting point, no presumption, no goal, no hint as to what is a fair division of thefamily assets at the point of dissolution of the marriage.”
3
, has meant that its application has been
1
 
White v White
[2000] 2 FLR 981
2
Ibid at 9
3
E. Cooke, ‘White v White – A New Yardstick for the Marriage Partnership’ (2001)
CFLQ
81
1
 
fraught with difficulties for over thirty years. As Quazzani notes, “While this subjectivity canoften be particularly beneficial for aiding fairness, it can also be especially treacherous.”
4
It is due to this discretion in the system that gender-based equality was capable of beinginjected into the legislation almost 40 years after its enactment. The decisions in
White v White
and
 Miller;McFarlane
have been innovative in changing the ancillary relief system to onerespectful of gender equality. The greatest change resulting from the Law Lords’ decisions has been the removal of the ceiling on financial provisions associated with “reasonablerequirements” as elucidated in O’D v O’D(1975)
5
. Although section 25 of the MatrimonialCauses Act refers to needs, nowhere does it limit the award of the applicant to that of “reasonable requirements”, but for many years this has been basis for allowing the money-maker of the marriage to walk away with the surplus of the assets. As observed in Cretney’s Principlesof Family Law, “The reasonable-requirements ceiling was subject to criticism for its injustice,connotation of dependency and failure to give proper recognition to contributions to familywelfare.”
6
 While the welfare of any children and the possibility of a clean break are two of the first points that should be taken into consideration, as previously stated, needs became the focal pointof any award under the disguise of reasonable requirements. The effect of this approach onancillary relief was to preclude a claimant from receiving more than was necessary to satisfy hisor her needs, meaning that the other spouse ended up with a much larger share of the assets.This is no longer so as
White v White
laid down two concepts which replace the previousinterpretation, namely, non-discrimination and the equal sharing yardstick. These have
4
S. Quazzani, Ancillary Relief and the Public/Private Divide,’ (2009)
Family Law
842
5
 
O’D v O’D
[1975] 2 ALL ER 993
6
Masson, J., Bailey-Harris, R., and Probert, R., (2008)
Principles of Family Law,
London:Sweet & Maxwell, p. 357
2
 
completely transformed the approach taken to distributing capital and property on the breakdownof the marriage, and have created greater equality between the sexes on divorce.The non-discrimination principle enunciated in
White v White
established a new basis,which has strengthened the position of applicants as, “...there is no place for discrimination between husband and wife and their respective roles...There should be no bias in favour of themoney-earner and against the homemaker and child-carer.”
7
In the 20
th
century the general trendin ancillary relief proceedings was for the homemaker’s role to be overlooked, thus wivesreceived a much reduced share of the marital assets. The White decision now demands that thereis greater fairness for women in the distribution of marital assets. In Quazzani’s view the
White
decision,
minimised the systemic malignancy of patriarchy which has influenced ancillary relief law for so long,”
8
  by ensuring that the caring role undertaken by many wives in place of a career is no longer seen in a negative light. This is a huge departure from the old interpretation of the1973 Act, and shows the eagerness of the House of Lords to bring about gender-equality in thisarea of the law.To reinforce that non-discrimination should be kept in sight when making a judgement ondivision of financial resources the other principle expounded in the
White
case was the “yardstick of equality.” When determining an award for ancillary relief, it was suggested that the courtshould undertake a “cross-check” with equal division of all the assets to assess if the result is fair in all the circumstances of the case. Many feel that the ramifications of this approach are to beembraced as going a long way towards the laudable aim of gender based equality.The significance of the
White
decision for gender equality is aptly summarised byQuazzani when she writes, “
White
was the catalyst which began to diminish (though
7
 
White
v
White
[2000] 2 FLR 981
8
S. Quazzani, ‘Ancillary Relief and the Public/Private Divide,’ (2009)
Family Law
842
3

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