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The Financial Consequences Of The Breakdown Of Status Relationships Notes

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THE FINANCIAL CONSEQUENCES OF THE BREAKDOWN OF STATUS RELATIONSHIPS Theoretical Issues, 'Fairness' and the s 25 ExerciseWhite v White [2000] UKHL 54"everyone would accept that the outcome on these matters, whether by agreement or court orders, should be fair. More realistically, the outcome ought to be as fair as is possible in all the circumstances. But everyone's life is different. Features which are important when assessing fairness differ in each case. And, sometimes, different minds can reach different conclusions on what fairness requires. Then fairness, like beauty, lies in the eye of the beholder" - Lord NichollsMiller v Miller; McFarlane v McFarlane [2006] UKHL 24"Fairness is an elusive concept. It is an instinctive response to a given set of facts. Ultimately I is grounded in social and moral values. These values, or attitudes, can be stated. But they cannot be justified, or refuted, by any objective process of logical reasoning. Moreover, they change from one generation to the next. It is not surprising, therefore, that in the present context there can be different views on the requirements in any particular case".Acknowledges predictability as part of fairness: "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, perforce, 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"

The Detail of the s 25 Exercise
- gives a massive list of things the courts should consider in making financial consideration - this is what Parkinson was talking about Computation.... s 25(2)(a) - Source of Assets and IncomeRobson v Robson [2010] EWCA Civ 1171The statute does not list those factors in any hierarchical order or in order of importance. The weight to be given to each factor depends on the particular facts and circumstances of each case, but where it is relevant that factor (or circumstance of the case) must be placed in the scales and given its due weight

No finality without an order:
- Wyatt v Vince [2015] UKSC 14 (discussed: Ferguson (2015) 27 CFLQ 195-208)
- two "hippies", lived in caravans, didn't have many worldly possessions. No order was made as to what should happen to their money. Years on the husband became entrepreneur worth millions, wife was not at all well-off so she sought a claim on his wealth

- court accepted that wife had needs, but that the needs required for compensation had to be generated from relationship. She was entitled to money for the child, but not just "look at me now, please give me some of your money" - she had to tie it to the marriage

2.3 COMPARISON WITH COHABITEES "In the light of the judgments in White v White [2000] 2FLR 98i and Miller v Miller and McFarlane v McFarlane [2006] UKHL 24, are the judges to be believed when they say they want increased legal certainty in determining financial provision on divorce and does it matter?"do judges want increased legal certainty i.e. do they want the law to be clearer on what the law is when divorces happen?Both talk about fairness, but in different sense i.e. White considers that fairness is desirable but subjective, and McFarlane focusses more on the elusiveness and impracticality (the latter is more negative). But essentially both fail to go anyway towards legal certainty and while they may both express a desire to move towards it, in reality the content of their judgments (that is, the expression that while fairness might be desirable but essentially unattainable and unhelpful in legal terms) are cyclical and void of any meaningful move towards increased legal certainty. o

If anything it seems like they've set a cyclical pattern which may in turn create a precedent of wistful discussions about fairness, but no practical move towards making this desirable "fairness" a legally certain principle

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While they acknowledge the subjective and therefore impossibility of fairness ending itself to legal certainty, in failing to offer ways around it, or alternative, they fail to acknowledge that realistically we might have to compromise fairness if we are to achieve increased legal certainty, and failing to offer a practical compromise is unhelpfulMiller; FcFarlane acknowledges the importance of predictability as a part of fairnessMiller; McFarlane also says "Fairness" discussed by Lord Nicholls in White v White meant it should be fair "between the parties" - this is blurring the lines bc we assumed fairness was our aim, but now it's being limited further? What about other important things i.e. state interest - CHILDREN'S INTERESTS???? Universal fairness?White v White set out 3 key principles for assessing orders (to reach overriding aim of fairness):o

Needs - mutual dependence in marriage creates obligations of support, fairness requires that assets are divided to provide for needs of other party (Lord Nicholls in Miller;McFarlane). However also draws line between needs generated by the marriage, but not all of them are. For example, needs arising from age or disability which are needs but which have not arisen from the marriage. These will therefore be an exception i.e. spouse won't have to provide for these needs. Generally speaking, need to tie the needs to the marriage (see Wyatt v Vince)

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Equality (non-discrimnation)

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Compensation

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Autonomy was then introduced as fourth key principle to be assessed in Radmacher v Granatino

White also placed emp

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