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Miller Notes

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Miller; McFarlane [2006] UKHL 24 House of Lords Facts In Miller, H had been a successful fund manager. When he got married, he negotiated a move and was very successful, vastly increasing his wealth. After three years the marriage broke down and W claimed ancillary relief. In McFarlane, both H and W had lucrative careers until they agreed W would give up to look after children. They later divorced and W applied for ancillary relief. Held Lord Nicholls

The requirements of fairness o Fairness is an elusive concept. It is an instinctive response to a given set of facts. o Ultimately it is grounded in social and moral values which can be stated, but they cannot be justified, or refuted, by any objective process of logical reasoning.
? It is not surprising therefore that in the present context there can be different views on the requirements of fairness in any particular o Implicitly the courts must exercise their powers so as to achieve an outcome which is fair between the parties.
? But an important aspect of fairness is that like cases should be treated alike. So if there is to be an acceptable degree of consistency of decision from one case to the next,

the courts must themselves articulate, if only in the broadest fashion, what are the applicable if unspoken principles guiding the court's approach

Where do we go?
o The starting point is surely not controversial. In the search for a fair outcome it is pertinent to have in mind that fairness generates obligations as well as rights.
? Each party to a marriage is entitled to a fair share of the available property. The search is always for what are the requirements of fairness in the particular case o The statute provides that first consideration shall be given to the welfare of the children of the marriage.
? Beyond this several elements, or strands, are readily discernible.

The first is financial needs. o Marriage gives rise to interdependence - when marriage ends, we should try to divide fairly to satisfy housing and financial needs
? taking into account a wide range of matters such as the parties' ages, their future earning capacity, the family's standard of living, and any disability of either party.
? Most of these needs will have been generated by the marriage, but not all of them. Needs arising from age or disability are instances of the latter

In most cases the search for fairness largely begins and ends at this stage

Another strand, recognised more explicitly now than formerly, is compensation o This is aimed at redressing any significant prospective economic disparity between the parties arising from the way they conducted their marriage.
? Suppose the parties have said that W be the carer and H the earner, and this has vastly increased H's earnings.

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