White v White

English Family Law

White v White
Image: ‘Land Girls Farming’ by Georgia Fowler

When a committed marriage runs its course and the two parties responsible have amassed an estate of significant worth, should the ‘Duxbury paradox’ find just approval or will the virtue of equality prevail?

After spending over three decades together as husband and wife, business partners and parents, the cross-appellants discussed not only invested exorbitant amounts of money into what was termed a ‘clean break’ divorce, but wound up fighting over percentages whilst losing sight of the objective first presented to the courts.

Having contributed roughly equal amounts of time and capital into a successful farming business it was felt by the wife that she needed to end the marriage and strike out alone in a similar field. While on paper the division of assets appeared straightforward, there were anomalies in the form of individual benefit to inheritance by the husband through valuable farming estate and his decision to continue operating the business shared by the two parties as opposed to liquidation in the wake of annulment.

During the original hearing the judgment passed disproportionately in favour of the husband, leaving the wife with less than one-fifth of the estate value. This was calculated  through the application of the Duxbury fund principle as first described in Duxbury v Duxbury. This antiquated approach to approximation of required financial assets is based upon the idea that in order to establish the requisite level of income for the wife in a divorce, the phrase ‘the longer the marriage and hence older the wife, the less the capital sum required for a Duxbury Fund’ will suffice.

Following an unsurprisingly swift challenge, the Court of Appeal sensibly reconsidered the previous judgement and increased her award to two-fifths of the estate upon grounds of equality and the principle that the increase in award had now provided sufficient funds (£1.5m) for the wife to not only start her new venture but have enough to live on without the burden of stress or discomfort. Similarly, the remaining estate was healthy enough for the husband to continue working, albeit with short-term financial help from his extended family.

While taken on it’s weighting the outcome would appear at risk of bias, however the ethos that divorcing parties should take steps to help each other start afresh is clearly present where the dissolution of the joint enterprise would have placed the husband at risk of suffering, while the wife enjoyed the benefit of excessive capital for the purposes of need despite making the choice to depart from a thriving and well-established business.

Key Citations

“In seeking to achieve a fair outcome, there is no place for discrimination between husband and wife in their respective roles.”

“…it should be possible to use equality as form of check for the valuable purposes already described without this being treated as a legal presumption of equal division.”

“It by no means follows that, in a case where resources exceed the parties’ financial needs, the older wife’s award will be less than the younger wife’s.”

“…equality should be departed from only if, and to the extent that, there is good reasons or doing so.”

“Financial needs are relative. Standards of living vary. In assessing financial needs, a court will have regard to a person’s age, health and accustomed standard of living.”

“…the only plausible reason for departing from equality can be the financial help given by the husband’s father. I agree, however, that the significance of this is diminished because over a long marriage the parties jointly made the most of that help and because it was apparently intended at least partly for the benefit of both.”

Thorner v Major

English Family Law

Thorner v Major
Image: ‘Farm’ by Denis Pannett

While of a strictly familial nature, this case relies upon elements of land law and principles of equity for its proximation of fact. After a decade-spanning relationship of trust and obligation observed by the appellant it falls to the House of Lords to lay to rest the true meaning behind the time shared between two cousins.

The core of this dispute rests within the subjective disparity of those seeking claim to the estate of a private farmer and the man who knew him probably better than anybody. After growing up and working on his father’s farm the appellant found himself extending his energies to his older cousin after witnessing him suffering loss both through death and divorce. Having no children of his own the cousin had continued to toil the land left him and in turn looked to the appellant to help manage the considerably extensive freehold.

For one reason or another the arrangement required no payment exchange and so it was that until the death of the landowner the two men worked the farm and developed it further through an intimate relationship based upon the appellant’s unique ability to understand the emotion and intentions of a man renowned for his narrow vocabulary and deep introspection.

When upon his death the appellant followed up on his understanding that the farm had been bequeathed him, the claim of succession was contested on grounds of proprietary estoppel and the ambiguity of true intention displayed by the deceased. There were principally two events that triggered the assumption of his entitlement namely (1) a gesture that indirectly disclosed the plans of the elder cousin in relation to deaths duties (2) the inherent nature of their close friendship and the disappearance and subsequent implied revocation of a will drawn up eight years prior to his passing.

Needless to say the appellant had over the passage of time made numerous adjustments to his own circumstances in order that the relationship could sustain the changes discussed and alterations incorporated into the estate; and there were a number of other minor events that further supported his interpretation that he would be the sole successor of his cousin’s farm. Unfortunately for the respondents the principle of proprietary estoppel relies upon the inability to identify the land discussed therefore the challenge brought against the appellant was fundamentally flawed; while it was more importantly noted by one of the presiding judges that by all accounts a constructive trust had by definition been created through the dealings and partnering of the two individuals during the lifetime of their relationship.

Key Citations

“If it is reasonable for a representee to whom representations have been made to take the representations at their face value and rely on them, it would not in general be open to the representor to say that he or she had not intended the representee to rely upon them.”

“Peter’s representation that David would inherit Steart Farm speaks, at least where Peter remained the owner of an agricultural entity known as Steart Farm, as from his death and if, at that time, evidence were available to identify Steart Farm with certainty, David’s claim to be entitled in equity to Steart Farm cannot, in my opinion, be rejected for want of certainty of subject matter.” 

“…this case would, on the factual findings made by the judge and accepted by the Court of Appeal have justified a remedial constructive trust under which David would have obtained the relief awarded him by the judge.”

“…however clear and unequivocal his intention to assure David that he was to have the farm after his death, Peter was always like to have expressed it in oblique language.”

“…it is unprofitable, in view of the retrospective nature of the assessment which the doctrine of proprietary estoppel requires, to speculate on what might have been.”

AI v MT (Alternative Dispute Resolution)

English Family Law

AI v MT (Alternative Dispute Resolution)
Image: ‘Moses with the Ten Commandments’ by Rembrandt

With the introduction of Alternative Dispute Resolution (ADR) in 2010 the essence of divorce and family proceedings became less governed by the rigours of litigation and one more attuned to continuous and considered discourse between parties on provisional terms that embraced the welfare of children and respect for individual rights.

After marrying relatively young and moving quickly into starting a family, two devout members of the Jewish faith found themselves in stark opposition to how best they could live their lives and in turn seek to end the marriage and occupy different countries.

When the matter of how contact could be set between the father and the two small children it soon became a matter of contention and one that ultimately drew guidance from the Jewish community but overall authority from the English courts. When adopting ADR strategies the emphasis is typically placed upon expedience and reduced costs; however due to such vast geographical differences and intrinsic religious constraints, the process of divorce ran over a period of years versus months and was certainly not without its frustrations.

What eventually emerged however, was that through a combination of delicate communication, respect for doctrinal traditions, cohesive written agreements and the balancing of the needs of the children, it was possible to overcome the potential pitfalls of cross-jurisdictional conflict and move matters to a much more mature and objective conclusion; an outcome that had at times seemed unlikely given the inclination by the parties involved to build walls between them that served only to harm the children and drain financial resources more than was necessary.

Thankfully it all came down to a successful collaboration of the Jewish authorities, domestic courts and continued willingness of the parents to collectively work toward a resolution that now stands as testament to the transcendence of ideology in favour of a united family even after the dissolution of marriage.

Key Citations

“…save where statute provides otherwise, when considering issues concerning the upbringing of children, it is the child’s welfare that is the paramount consideration.”

“…the parties are able to select the arbitrator as opposed to litigation where the parties are obliged to accept the judge allocated to hear the case.”

“…primary responsibility for children rests with their parents who should be entitled to raise their children without the intrusion of the state save where the children are suffering, or likely to suffer significant harm.”

“…at a time where there is much comment about the antagonism between the religious and secular elements of society, it was notable that the court was able not only to accommodate the parties’ wish to resolves their dispute by reference to their religious authorities, but also buttress that process at critical stages…“’

“So far as the financial settlement was concerned, the terms of the agreement were unobjectionable. The parties’ devout beliefs had been respected. The outcome was in keeping with English law whilst achieved by a process rooted in the Jewish culture to which the families belong.” 

Fitzpatrick v Sterling Housing Association Ltd

English Family Law

Fitzpatrick v Sterling Housing Association Ltd
Image: ‘Time Clock Houses’ by Sunita Khedekar

The phrase ‘family’ has seen a number of changes over the last century, and so it is that the common law of the United Kingdom is expected to accommodate cultural shifts and the cosmopolitain nature of intimate relationships when reaching a fair and balanced decision.

In this appeal case the relationship between a private tenant and potential successor was that of two men, and upon the death of the elder partner it was found that despite their twenty-year history and the deeply caring bonds between them, the wording of the Housing Act 1988 prevented the surviving party from inheriting the assured tenancy and thereby remaining in occupation of the home they had shared together.

Because of the widening of interpretation concerning the proximity required to uphold succession it became possible to appeal to the original judgment and while the appellant relied upon two sections of the legislation namely (1) para.2(1) which placed importance on the spousal aspect of relationships, a section which further relied upon the assumption that the two parties were of opposite genders and (2) para.3 which extended the right to succeed where those in occupancy at the time of the others death could show such living arrangements over a minimum two-year period while under the scope of ‘family’.

The issue presented to the judges was not one of spousal qualification but rather agreement that despite the non-traditional relationship between the two men there did exist an intimacy that by all accounts could be construed as familial. By applying a number of past and recent precedents it fell to the five judges to subjectively determine if the statute prescribed by parliament contained within it an ability to embrace the post-modern image of the family unit without the need for statutory review.

In its conclusion and somewhat expectedly, there was a fine division of judicial opinion that thankfully provided grace to the appellant and allowed him to enjoy the home shared with his partner in the years before and leading up to his passing.

Key Citations

“…for the purposes of this Act, two people of the same sex can be regarded as having established membership of a family, one of the most significant of human relationships which both gives benefits and imposes obligations.”

“…legislation would fail to cover the whole of the target intended to be protected if family were given a narrow or rigid meaning. Such a meaning would fail to reflect the diverse ways people, in a multi-cultural society, now live together in family units.”

“…there can be no rational or other basis on which the like conclusion can be witheld from a similarly stable and permanent sexual relationship between two men or between two women.”

“Contrary to what seems implicit in this form of question, the expression family does not have a single, readily recognisable meaning.”

“…the morality of a lawful relationship is not now regarded as relevant when the court is deciding whether an individual qualifies for protection under the Rent Acts.”

“I do not accept the argument that the inclusion of a tenant’s homosexual partner within the ranks of persons eligible to qualify as member of his family is a step which should be left to Parliament.”

“The elements of free mutual choice of a close intimate relationship and the voluntary determination to spend one’s life with another is one form of a family bond.”

“The formal bond of marriage is now far from being a significant criterion for the existence of a family unit.”

“It would be wrong to regard the present case as one about the rights of homosexuals. It is simply a matter of the application of ordinary language to this particular statutory provision in the light of current social conditions”

“It does not seem to me that the recognition that a person living together with another in a homosexual relationship may qualify as a member of the other’s family is likely to lead to any significant uncertainties in the application of the statutory provision.”