In 1853 the Campbell Royal Commission1 had pointed out that a husband divorcing his wife by Private Act of Parliament2 had invariably been required to make some suitable (albeit ‘moderate’) provision for his former wife;3 and the Commission recommended4 that the Divorce Court should be ‘intrusted with a large discretion5 in prescribing whether any and what provision shall be made to the wife,6 in adjusting the rights which she and her husband may respectively have in each other’s property, and in providing for the maintenance of the children’.
In fact the 1857 Matrimonial Causes Act did not go anything like as far as the Campbell Commission had recommended. The Act provided, firstly, that the court might, in its discretion, order the husband to ‘secure’ to the divorced7 wife such ‘gross sum of money, or such annual sum of money … as having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties’ it deemed reasonable. Secondly, the Act provided8 that the court pronouncing a decree9 against the wife on the ground of her adultery could order a settlement, for the benefit of the innocent party and the children of any property (p.396) to which the wife was entitled whether in possession or reversion. Finally, the Act gave a husband10 the right to claim damages from the man who had committed adultery with his wife. This cause of action has a different historical origin from the other powers of the Divorce Court and was not dependent on the court making a divorce or judicial separation decree; and has therefore been dealt with in the chapter of this book dealing with conjugal rights and remedies.11The present chapter deals with the evolution of the law governing what is called ‘ancillary’ relief. (This term reflects the fact that the power to make orders only arose on or after making a decree, so that the court’s powers in this respect could correctly be regarded as subordinate to the grant of the principal relief afforded by the divorce or other decree.)
Ancillary relief under the Matrimonial Causes Act 1857
The powers given to the courts by the 1857 Act to make orders for family support after divorce were thus narrow in scope. Over the years gaps and obscurities revealed in litigation were spasmodically dealt with by both case law and amending legislation. For example, the courts (albeit at first rather grudgingly) held that the fact that a wife chose to divorce her adulterous husband did not debar her from seeking an order for maintenance against him.12 But not even a (p.397) much bolder approach to statutory interpretation than was acceptable in the latter part of the nineteenth century could overcome the problems caused by the clear statutory words which restricted the courts powers to make orders against a husband for income maintenance to orders forsecured13 provision. It followed that the court had no power under the 1857 Act to make any maintenance order against a man who had ‘sufficient income from his labour’ to support his family but lacked assets14 on which the periodical payments could be secured.15 Fifty years had to go by before the Matrimonial Causes Act 1907 gave the court an effective power to order a divorced husband to make unsecured weekly or monthly payments16 for the wife’s maintenance and support.17 In theory at least, the divorced but property-less artisan or clerk18 could thenceforth be made to support the wife he had betrayed.
The 1857 legislation had thus clearly been framed primarily in the context of the wealthier families who had at least some capital, but it reflected the Victorian belief that capital was to be used to provide income and not to be spent. For this reason, the Act gave the court no power to order a husband to pay or transfer capital to the wife:19 maintaining the ex-wife was one thing, but dissipating the family capital was quite another.
(p.398) There was, however, one important exception to the principle that the Divorce Court had no powers to adjust20 the parties’ capital entitlements.21 The 1857 Act clearly saw22 the typical situation as that of a husband divorcing his adulterous wife who would then remarry; and it seemed into lerable that the property preserved for her by the doctrine of the married woman’s separate estate should then pass to the seducer. As Lord Penzance subsequently proclaimed, it would ‘be an evil example if this Court were to decide that the entire fortune of a wealthy married woman was to be reckoned as part of the prospects of an adulterer, or the resources of a second home for a guilty woman’;23 and the Act accordingly24 provided25 that the court could direct such settlement of an adulterous wife’s property as it thought reasonable for the benefit of the husband or children.
Decisions on the exercise of this power required the courts to assess ‘the nature and extent of the pecuniary charge operated by the wife’s criminality’;26 and over the years the courts discharged this task with some enthusiasm. But a gap in their weaponry soon became apparent. The power to order a settlement of the wife’s property could only be exercised over property to which she was beneficially entitled;27 and did not allow the court to vary the trusts of the marriage (p.399) settlements which governed the financial arrangements of many middle-and upper-class Victorian families. The discovery of this omission was apparently28 something of a surprise;29 but the Matrimonial Causes Act 185930 hastily conferred power on the court to ‘enquire in to the existence of ante-nuptial or post-nuptial settlements, and … make such orders with reference to the application of the whole or a portion of the property settled whether for the benefit of the children of the marriage, or of their respective parents as to the Court shall seem fit’. This power31 came to be freely exercised.32
Narrow as the Divorce Court’s powers to make financial orders were, they remained substantially unamended until 1963; and major statutory reform only came with the acceptance of divorce for irretrievable breakdown of marriage under the Divorce Reform Act 1969.
(p.400) The principles upon which the court’s powers were exercised
The Matrimonial Causes Act 185733 directed the court in taking decisions about the wife’s maintenance to have ‘regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties’ and make such order as it deemed reasonable …’;34 and in this way (as judges constantly asserted) Parliament had vested in the judges ‘an unfettered discretion’ to be exercised ‘according to the particular circumstances of each case’.35
The existence of a wide discretion to do, within the framework of the law, whatever was just in each case was a characteristic of the Divorce Court and had many obvious advantages in facilitating the resolution of the financial consequences of divorce. It also had obvious disadvantages; but it must be remembered that in the early days of judicial divorce, the law was administered by a handful of men who no doubt developed habits and practices known to the select group of counsel who appeared before them but not necessarily articulated. As Lord Merrivale P put it36 there were certain ‘axiomatic matters’ (in that case the expectation that a wife would be awarded one-third of the husband’s income) ‘which a judge sitting here does not think it necessary to formulate in the presence of counsel of experience in cases of this kind’. For this reason, reported cases may not be as helpful as they might be37 in assessing the actual practice of the court; whilst the existence of unarticulated assumptions, coupled with a lack of empirical data about the orders which the court did in fact make over the years mean that it is difficult to determine quite what were the principles upon which the court worked and how far those principles changed over the years. The statements of principle which the courts did make are often couched in extremely broad language which raise as many questions as are answered;38 whilst the application of principles has ‘varied from decade (p.401) to decade’ since judges take into account the ‘human outlook of the period in which they make their decisions’. In the exercise of such a broad discretion, the law (it has been said)39‘is a living thing moving with the times and not a creature of dead or moribund ways of thought’. In fact, the breadth of the discretion enabled the courts, applying the same legislation, to make orders in 1957 which would have seemed outrageously wrong a century before.40
There were some recurrent questions, two of which merit discussion in some detail. How far should the parties’ conduct affect the outcome; and should a wife reasonably expect to be awarded a certain fraction of the husband’s income?
The significance of the parties’ conduct
Since it took a judicial decision to establish that a wholly blameless wife petitioning for divorce was entitled to claim maintenance from her former husband41 it is hardly surprising that the question of how the court should deal with cases where there was a dispute about responsibility for the breakdown continued to trouble the courts. The legislation specifically required courts considering maintenance to have regard to the ‘conduct of the parties’; and over the years the courts had to grapple with two distinct issues. First, how were they to seek to establish the relevant facts; and secondly, how far were the court’s findings to affect the actual outcome in financial terms?
Finding the facts
As we have seen, the Divorce Court (in contrast to the courts of common law)42 did not follow the adversarial mode traditional in English litigation. Rather, the courts were themselves to inquire into the facts alleged, so that their role (following the traditions of the Ecclesiastical Courts in which historically they had their origins) was essentially inquisitorial. Such being the theoretical basis, it might be thought to follow that the court would develop procedures whereby the statutory obligation to have regard to the parties’ conduct could be properly(p.402) discharged. But in practice the matter was, for two main reasons, much less straightforward.
The first complicating factor was that the court’s primary concern in divorce cases was whether it should dissolve the marriage or not. Only if a decree were granted did the court have power to grant what was ‘euphemistically’43 called ancillary relief in the form of periodical payments44 or orders varying or directing the making of settlements. Thus, the ‘auxiliary or supplementary jurisdiction’ to make financial orders could only be exercised after decisions had been made on the ‘more important’45 question; and this notion was reinforced by rules of practice which required applications for maintenance and other financial relief to be the subject of a separate petition46 only to be filed after the decree nisi had been made.47 Ancillary relief applications were thus dealt with (as the Denning Committee put it in 1947)48 at what was in effect a separate trial.
The second factor causing difficulty was that the decree itself seemed to conclude the question of who was guilty and who was innocent. The decree conclusively determined that the respondent had committed adultery; and in practice for many years the Divorce Court would decline to grant a divorce to a petitioner who had himself committed adultery. In this way the law reinforced the ‘binary concept’49 that the conduct of a successful petitioner had necessarily been blameless, and that responsibility for the breakdown of the marriage rested exclusively with the unsuccessful respondent.50 Of course, this had always been a crude simplification of the realities of human relationships and no doubt the conduct of the unsuccessful respondent was quite often much better than that of the successful petitioner,51 but at least the courts could determine the financial (p.403)consequences of divorce on the basis of who had been successful in the decree proceedings. However, after the World War I the courts became readier to grant a decree to a petitioner who had to seek the exercise of the court’s discretion to his or her own admitted adultery and this more humane approach towards allowing broken marriages to be terminated in law as they had been in fact no doubt considerably reduced the misery suffered by those involved. But it also increased the problems faced by the courts in deciding what financial consequences should flow from the dissolution. By 1950 Denning LJ could say52 that it was ‘common knowledge that, when parties are divorced, you cannot really tell which of the two was to blame merely by asking which of them obtained the decree’.53
The difficulty of determining the relevant facts was increased by a curious procedural practice. Since the financial consequences of divorce were in theory of subsidiary importance it made sense to allow them to be handled, not by the judges of the Probate Divorce and Admiralty Division,54 but by the Court’s Registrars55(whose jurisdiction in these matters grew steadily over the years).56 (p.404) In this way the Registrars became powerful judicial figures57 able to deal with the things that were of real importance to the parties.58 But not everyone believed this outcome to be satisfactory. In 1947, the Denning Committee59 thought it wrong to leave such matters to a ‘decision in chambers on affidavit when the parties are not present’60 and also believed that the system of adjudication of financial disputes failed to reflect the gravity of the issues for the parties.61 The Committee accordingly recommended that the ‘procedure in the Divorce court with regard to maintenance should be entirely changed’. The statutory duty imposed on the court to ‘have regard not only to the fortune of the wife and of the ability of the husband to pay’ but also ‘to the conduct of the parties’ was one which should be ‘tried by a Judge, and not by a Registrar’; and the Committee thought it should ‘be tried by the Judge who hears the divorce suit, because he is the person who hears the evidence as to the conduct of the parties and can better have regard to it than a Registrar who has only affidavits before him’. The Committee considered that to have all the issues heard on the same day by the judge on oral evidence with the parties present would give an ‘added sense of importance to the whole divorce process’;62 and that to have the assessment of financial matters made by the judge who had tried the divorce suit ‘would not only better carry out the intention of the legislature but would also save much time and money’ not least because there would only have to be ‘one hearing and one attendance necessary for those concerned and not two as at present’.
The Denning Committee’s recommendation was not implemented.63 Indeed, over the years the restrictions on the powers of Registrars—in 1990 transformed into District Judges64—to make financial orders were removed; and by the end (p.405) of the twentieth century it was they who handled the great bulk of what were still called ancillary relief applications.65
The division made between the proceedings leading to the grant of a divorce and the subsequent proceedings about the consequential financial orders exposed another difficult problem. Suppose a man who recognised that the marriage was at an end, and was indeed himself anxious for a divorce66 so that he could remarry, wanted to produce evidence about his wife’s conduct which could possibly affect the decision whether the court should grant the decree. Was he to be allowed to let the divorce petition go undefended and then seek to raise in the ancillary relief proceedings the matters which might have provided a defence to the petition, or did the doctrine of estoppel (or some variant of it) prevent him from doing so? Eventually67 the courts adopted the view that, whilst it was not permissible to question in the ancillary relief proceedings the basis upon which the divorce had been granted—for example, that the man was in desertion and that his wife’s conduct had not given him just cause for leaving68—the respondent would be allowed to rely on any other matters (for example, that there were extenuating circumstances which went some way (p.406) towards explaining or even justifying his conduct) which could be relevant to determining the financial consequences of the divorce.69 In this way the courts produced a tolerably satisfactory compromise between the competing considerations of public policy;70 but the difficulties were only finally removed in the 1970s as a consequence of the courts’ developing policy that considerations of conduct and culpability were, under the ‘irretrievable breakdown’ doctrine introduced by the Divorce Reform Act 1969, rarely relevant.
Effect of findings on the assessment of financial orders
By marriage a wife acquired the right to be supported by her husband for the rest of her life, and the courts soon settled that the object of the legislature in giving her a right to apply for financial provision after divorce was to provide a substitute for the support to which she would have been entitled had the marriage continued.71 If it was the husband who divorced his adulterous wife she might well be required to settle property to mitigate the damage which had been done to the husband and children. This seemed for many years quite simple, but the question whether a ‘guilty’ wife should have any claim to continued support from the husband caused far more difficulty.
It certainly seems that in the early days a wife who had committed adultery or deserted her husband could expect no order against him for financial support:72 after all, she would have forfeited her common law right to be maintained73 and she had broken the terms implied by law into the marriage contract. But, as has already been pointed out, it had been the practice in the days of parliamentary divorce to ensure some provision for even an adulterous wife; and in 1883 the (p.407) Court of Appeal doubted74 whether the courts had been correct in departing from the old parliamentary practice. In 1902 the Court of Appeal (in Ashcroft v. Ashcroft and Roberts)75 finally accepted that the court did have an absolute discretion to make orders in favour of the guilty wife; but the discretion to do so was to be sparingly exercised. In the Ashcroft case:
After a three-day trial, the wife of a moderately prosperous76 Liverpool timber merchant was found guilty of adultery and the court dissolved the 23-year-long marriage (in the course of which the wife had born five children). The wife was absolutely destitute and entirely without means or relatives to whom she could turn for support, whilst her poor health made it impossible for her to earn her own living. The trial judge77 ordered the husband to ‘provide a small maintenance for her, so that she may not be turned out destitute on the streets’; and for this purpose £1 weekly (perhaps £50 in year 2000 values, and a sum significantly less than a manual labourer’s weekly wage) was considered sufficient. The husband, relying on the fact that there was no reported case in which the Court had given an allowance to the guilty wife unless there had been some fault on the side of the husband or he had received some financial benefit from the wife,78 appealed against this order. He was unsuccessful.
The guilty wife was therefore not to be turned out into the streets to starve79 but she could expect80 no more than what came to be described as a ‘compassionate allowance’ to save her from utter destitution.81 Even if her husband were also guilty and only able to obtain a divorce by the exercise of the court’s discretion in his favour the court’s approach at the beginning of the twentieth century was that payment of an allowance to the wife could be justified only as a way of making the wife ‘reasonably safe from the terrible temptation which might otherwise assail her’.82
This approach could not survive the increasing appreciation that divorce decrees often gave a misleading impression about the realities of the parties’ conduct and that in any event human behaviour was often more complex than had been appreciated by the divorce judges before the First World War. By the (p.408) late 1960s, some judges in the superior courts were able to say that the expression ‘compassionate allowance’ came ‘from a past age’ and had ‘no place’ in the contemporary law of maintenance;83 and that accordingly even a guilty wife was not to be deprived of her right to maintenance unless her misconduct had been of a ‘really serious nature, disruptive, into lerable, and unforgivable’.84
But theory as expounded by the higher judiciary and the practice of the courts up and down the country seem often to have been different. For example:
In Iverson v. Iverson85 the husband had deserted his wife. On two occasions after he had left her she committed adultery. Apparently86 ‘those exercising jurisdiction in maintenance matters in Newcastle’ shared the husband’s erroneous belief that an adulterous wife would not in any circumstances be awarded maintenance.
Even more remarkably:
In Porter v. Porter87 a 42-year-old woman, married for 23 years to a man who had refused to buy clothing for the children and habitually fell in to long and morose silences, admitted that she had committed adultery after the marriage had broken down.88 The County Court judge at Southend told her that she was accordingly in the position of a woman who had never married, and that she would be allowed only five pence a week maintenance. The Court of Appeal held that this was a fundamentally incorrect approach; and said that the judge89 appeared ‘totally unaware’ of the modern principles governing the award of maintenance, and that his expressed views were ‘decades if not generations out of date’.
Such cases suggest that the superior courts found it difficult to secure any uniformity of approach in relation to the impact of conduct on the assessment of periodical payments;90 and in practice:
‘The notion that a ‘guilty’ wife is virtually disqualified from obtaining an order for maintenance … persisted in the fact of strong authority to the contrary … [T]his … led to bitterly contested divorce cases in which the only real issue has been maintenance…91
In short, the judges found it difficult, even in the permissive 1960s, to make ‘conduct’ go away as a factor influencing divorce practice.
The quest for certainty: The One-Third Approach To Maintenance Assessment
The Ecclesiastical Court in granting what was called permanent alimony to a wife separated from her husband, would usually quantify the amount so that the wife would have one third of the joint incomes; and the Divorce Court at first was content to follow that precedent.92 Hence, although there was no hard and fast rule93 the court would normally94 allocate to a successful wife petitioner95 (p.410) such a sum as would bring her income up to one-third96 of the joint incomes.97
What was the justification for settling on one-third, rather than one-half or indeed any other fraction? The strongest influence seems simply to have been tradition: one-third was seen as the wife’s share in inheritance and other financial matters; but in 1966 the President of the Probate Divorce and Admiralty Division found a justification98 in the fact that ‘in a typical case the court was concerned with three groups of needs—those of the wife, those of the husband and those of children for whose support the husband was liable’.99
(p.411) Whatever the justification, the fractional approach continued to influence practice; and in 1947 the Denning Committee100 described the one-third ‘rule of thumb’ as ‘inveterate’.101 But such a crude approach did not escape criticism. It was certainly not universally applied;102 and indeed the superior courts repeatedly denied that the assessment of maintenance had become a matter of arithmetic rather than discretion,103 and one President of the Probate Divorce and Admiralty Division went so far as to claim that the ‘only principle to be observed is that [the court] should follow the statute’.104
One-third approach not applicable to the rich or the poor: the emergence of needs and requirements as a criterion
By the beginning of the twentieth century it had become clear that the courts would be reluctant to allocate to the wife an income greatly in excess of the amount needed to support her usual needs and standard of living:
In Kettlewell v. Kettlewell105 husband and wife had enjoyed a lavish standard of living with a joint106 income of some £20,000 (more than £1 million in year 2000 values). The court awarded the wife an annual sum sufficient to give her an income of £3,000 (£180,000 in year 2000 values). Although (said Sir FH Jeune P) (p.412) the ordinary rule would be to allow her a third of the joint income ‘no one would suggest’ an award of that size in this case. ‘It would [said the judge107] clearly be too much’.
Hence, in high income cases, the notion that £3,000108 was the maximum award ever to be made to a wife began to acquire some currency;109 and the courts applied the practice of fixing a sum which appeared to be ‘adequate, having regard to the wife’s position in life and necessities’110—in effect, what judges towards the close of the twentieth century were describing as the wife’s reasonable111 requirements.112 At the other end of the social scale113 the application (p.413) of any rigid arithmetical proportion also increasingly seemed unrealistic.114 More generally, changing economic and fiscal circumstances made the approach of the courts in nineteenth and early twentieth century England seem increasingly irrelevant to conditions after the two World Wars;115 and from this (p.414) dissatisfaction of some of the judges and others professionally involved there emerged a principle originally formulated in the context of the court’s powers to require a settlement of an adulterous wife’s property or to vary settlements: the court should seek to put the parties in the financial position (or at least to preserve the living standards)116 which they would have enjoyed had the marriage not been dissolved.117 As Lord Merrivale put it:118
‘I conceive that I must take in to consideration the position in which the parties were, and the position in which the wife was entitled to expect herself to be and would have been, if her husband had properly discharged his marital obligation …’119
The Financial Consequences Of Divorce: Reform, 1963–1984
It is rather curious that, although the question of the grounds upon which a marriage could be dissolved were throughout most of the twentieth century highly controversial, for many years (and certainly throughout the first half of the twentieth century) there was very little public discussion of the financial consequences (p.415)of divorce.120 It is true that after World War II the question whether a wife guilty of adultery121 should ever be entitled to financial support did arouse a certain amount of controversy,122 and it was sometimes said that the courts were over-reluctant to take a wife’s earnings (or, more frequently, her supposed earning capacity)123 in to account in making the necessary adjustments; but broadly speaking none of the official bodies which examined divorce and its procedures before 1956 gave any extended consideration to the principles upon which ancillary relief was granted. Such discussion as there was focussed on the desirability of amplifying and rationalising the scope of the courts’ powers.124
(p.416) The Morton Commission unwittingly opens Pandora’s Box
The 1956 Report of the Royal Commission on Marriage and Divorce was a conservative document; but one of its recommendations led albeit indirectly to a decisive change in the approach of the courts, the legislature and the community to divorce. The Commission recommended125 that the court be given an unrestricted power to order either party to the marriage to make provision by way of capital payment to the other, and the Matrimonial Causes Act 1963126 gave the court the power on or after127 granting a decree (whether of divorce, nullity or judicial separation) to order payment of a lump sum, unrestricted in amount.128 The long-term significance of this provision on perceptions of the nature of the divorce process is considerable: the courts and the legislature began to move away from thinking solely in terms of income maintenance,129 and towards making provision by way of capital adjustment. Of course, changing economic conditions (notably high rates of income taxation combined with a benign fiscal regime in relation to ownership of capital, and the emergence of the first signs of the inflationary pressures which so dominated English society in the 1960s and 1970s) were important factors in creating a climate of opinion favourable to the creation of a power whose scope would have seemed remarkable to Victorian130 and Edwardian judges and legislators.
The long-term impact of this extension of the court’s powers should not be understated. But initially the courts adopted a cautious and uncertain approach to the exercise of the newly acquired jurisdiction:
(p.417) In Davis v. Davis131 an actress—Dinah Sheridan, star of Genevieve and other now classic films—gave up her career at its peak to marry the exceedingly wealthy132 Chairman of the Rank Organisation.133 After 11 years she petitioned for divorce on the ground of her husband’s cruelty. The petition was a ‘lengthy document setting out a number of grave allegations, some of them of an extremely unpleasant nature’;134 but the husband135 filed no answer and allowed the case to go undefended. The Registrar (taking a ‘reasonably lenient’ view of the wife’s admitted adultery which had apparently occurred only after the husband’s conduct had reduced her to a state of considerable depression) awarded her periodical payments of £8,500136 (£85,000 in year 2000 values) and a lump sum payment of £10,000 (£100,000). Although satisfied with the periodical payments order137 the wife appealed on the ground that the lump sum award was much too low, and that she was entitled to such a sum as would suffice to enable her to buy and furnish a house of a standard commensurate with the accommodation she had enjoyed during the marriage. Orr J increased the award to £15,000; and the Court of Appeal—noting that a wife’s standard of living was recognised by precedent138 as a relevant factor—increased it further to £25,000 (a quarter of a million pounds in year 2000 values)139 compared with the£30,000 which the wife had claimed). The wife’s need for suitably furnished (p.418) accommodation was the dominant factor140 which weighed with the Court of Appeal: £15,000 would not ‘go very far towards purchasing house property in the sort of neighbourhood where a woman with this background can reasonably expect to live’; and accordingly the Appeal Court was ‘bound to interfere’. But the Court expressed the view that the question of making a lump sum order was not likely to arise ‘except in relatively rare cases’.
The statement that lump sum awards would only be made in ‘exceptional’141 circumstances was evidently intended merely to reflect the obvious truth that there is no point in making an order to hand over substantial capital unless the husband owns such capital;142 but although the courts did begin to show a willingness to exercise their lump sum powers in cases involving families of much smaller means in order to achieve specific objectives143 for a decade the typical scenario continued to involve the very rich, as in the last case on the issue to come before the Court of Appeal prior to the enactment of the Divorce Reform Act in 1969:
In Brett v. Brett144 the husband was an extremely wealthy businessman and underwriting member of Lloyds. He persistently failed to make proper disclosure about his finances, so that it was never clear exactly how wealthy he was. But the case proceeded on the basis that he might well have assets in this country worth half a million pounds (perhaps £5 million in modern values) as well as substantial assets in overseas tax-havens. Certainly in the course of the five and a half months for which the marriage lasted Mr and Mrs Brett lived lavishly, spending a honeymoon in Mexico and the West Indies and three holidays in Switzerland. The 23-year-old wife left the husband complaining of his revolting sexual demands and practices—allegations which he did not deny—and, having established that the case was one of exceptional hardship or exceptional depravity,145 obtained the leave at that time necessary to present a cruelty petition (p.419) notwithstanding the fact that three years had not elapsed since the marriage. The husband’s conduct reduced the wife to a severe anxiety state, and (although she had qualified as a solicitor) she was at the time of the hearing unable to work; and would in any event not expect to earn more than about £1,250 a year.146 She had virtually no capital. The Registrar awarded Mrs Brett a lump sum of £15,000 which, on appeal to the judge, was increased to £25,000. The Court of Appeal rejected the husband’s argument that £15,000 would suffice to provide the wife with appropriate housing, and made a lump sum award of £30,000147 (£300,000 in year 2000 values) together148 with periodical payments.149 In reaching that decision, the Court of Appeal applied Lord Merrivale’s Ν ν. Ν principle, ie ‘the test of taking in to consideration the position in which the wife was entitled to expect herself to be, and would have been, if the husband had discharged his marital obligation, the marital obligation being, of course, an obligation to maintain her on the scale appropriate to his station in life’.150 True it was that the marriage had only lasted a very short time, but, given that it was the husband’s conduct which had the effect of driving the wife out, this was not a factor on which the husband could rely.151
The Divorce Reform Act 1969 and the effect of divorce on the financial position of women
On one view, the Brett decision reflects a judicial perception of a husband’s obligation to keep his divorced wife supplied with ‘every conceivable luxury’;152 but it was the financial damage which divorce might cause to married women in general and ‘innocent’ wives in particular which had become an important factor in debates on the ground for divorce. The fact that divorce might deprive a woman of the pension expectations she would have enjoyed as the husband’s widow under the (at the time, increasingly common) Occupational Pension Schemes153(p.420) was a particular grievance,154 as were the restricted rights which a wife seemed to have in the family home.
The story of how the campaign for reform of the ground for divorce almost foundered in 1969 on opposition from those claiming that the proposed new law would be a ‘Casanova’s Charter’ enabling blameless wives to be repudiated by their husbands and left in penury has been told elsewhere in this book; and we have seen that the Government effectively bought off opposition by giving an undertaking155 that the new law of divorce would not be brought in to force unless and until legislation had been brought in to deal comprehensively with the financial consequences of divorce. We have also seen how the amending legislation was a disappointment to those who sought far-reaching reform of the property rights of married women156 but the Government decided to call an election, and the Matrimonial Proceedings and Property Bill was hurriedly pushed through the necessary parliamentary stages after only a truncated debate in the House of Commons on 27 May 1970.157 In this way the issues which could well have proved troublesome were never fully discussed in Parliament.
Financial matters to be a matter of discretionary adjustment rather than entitlement
The Matrimonial Proceedings and Property Act effectively rejected the introduction of community of property between husband and wife in to English law. Instead, the court’s powers to make orders on divorce, judicial separation and nullity were extended and its discretion accordingly increased. The Act was (p.421) based on a Bill drafted in the Law Commission;158 and the Commission’s recommendations on the court’s powers in divorce and other matrimonial proceedings159 fell into two main groups.
First, the Commission recommended rationalising the powers of the court to make orders for financial provision: old fashioned terminology (such as ‘alimony’) should be modernised; and there should be no distinction between the powers of the courts in relation to husbands and wives or petitioners and respondents.160 The Commission also recommended ‘some extension and a considerable rationalisation’161 of the court’s powers to adjust property entitlements: in addition to the power to order a lump sum payment the court should also have power to order settlements or transfers of property for the benefit of either spouse or any children.162
Secondly, the Commission recommended163 that statute provide ‘a uniform and more detailed set of guidelines to which the court should have regard’ in exercising its discretion to make financial orders on divorce than existed in the Matrimonial Causes Act 1965 (which in its turn incorporated legislation dating back to 1857). The Commission thought this to be ‘requisite especially having regard to the wider and more flexible powers which we have recommended in relation to property adjustments’; but with two exceptions the Report did not discuss the policy to which these guidelines were to give effect. These exceptions were (a) that the guidelines should include164 a specific reference to the ‘extent to which each [spouse] has contributed to the welfare of the family, including not only contributions in money or money’s worth … but also the contributions made (normally by the wife) in looking after the home and family’;165 and (b) the Commission gave it as its ‘considered opinion’ that the courts should be (p.422) readier than they had been in the past to make orders for the payment of a lump sum.166
In one respect the Commission had to admit defeat: the Bill contained no provisions empowering the court to adjust the parties’ pension expectations. The Commission recorded that the ‘problem remains unsolved and, after full consideration, we believe it to be incapable of direct and complete solution’.167
Ancillary relief under ‘irretrievable breakdown’ divorce
(1) The court’s powers168
The Law Commission’s Report169 had talked of ‘considerable rationalisation’; but it was soon evident that the powers to make financial provision170 and property adjustment orders171 had been widened so as to allow the court to redistribute virtually all the parties’ economically valuable resources, whether capital or income, if it considered it appropriate to do so. The decision whether to take a restricted or broad view of how the powers should be exercised was one for the courts to determine in the exercise of the discretion which the Act conferred; and it would have been open to the courts to follow a policy similar (p.423) to that adopted between 1963 and 1970 in respect of the power to make orders for the payment of a lump sum, that is to say that reallocation of capital should only be ordered in exceptional circumstances.172 In fact (as we shall see) the courts soon decided to adopt a very broad approach in order to achieve whatever result it believed to be fair just and reasonable in the circumstances.173
(2) Guidelines for the exercise of the court’s powers
The Law Commission’s Report174 recommended that there be substituted for the sparse legislative guidance given in the existing legislation ‘a uniform and more detailed set of guidelines to which the court should have regard’ in the exercise of these very wide powers. The 1970 Act adopting175 the draft Bill annexed to the Law Commission’s Report, provided that it should be the duty of the court in deciding whether to exercise its powers and, if so, in what manner ‘to have regard to all the circumstances of the case’ (including a number of matters specifically referred to, such as contributions to the welfare of the family)176 and ‘so to exercise those powers as to place the parties, so far as it is practicable and, having regard to their conduct just to do so, in the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other’.
It soon became clear that many practitioners found it difficult to give confident advice177 about how the legislation would be interpreted by the courts, whilst ‘divergences of view and of practice between judges’178emerged (some taking the view that the new legislation did no more than codify the existing law and practice179whilst others favoured a much more radical approach). The situation was not eased by the lack of any extended discussion of principle either in the Law Commission’s Report or in parliamentary debate. It was necessary for authoritative guidance to be given, if only to provide a basis upon which lawyers could advise clients as to the likely outcome of any proceedings and thus, in most cases, enable the parties to reach a settlement of the matter rather (p.424) than being forced into adversarial litigation. In Wacbtel v. Wacbtel180 the Court of Appeal set out to lay down authoritative guidance on some of the matters which had given rise to problems. Of these, a particularly difficult problem was that of how far the fact that one party to the marriage was to some extent ‘at fault’should influence the decision about the exercise of the court’s financial powers.
We have seen that in the declining days of the matrimonial offence doctrine an assessment of the conduct of the parties was often still a significant factor in the determination of the financial consequences of divorce; but that there was a difference of opinion about quite what weight such an assessment should have. Under the Divorce Reform Act, however, the availability of divorce did not depend on whether one or the other party was ‘guilty’ or ‘innocent’ but (in principle at least) on whether or not the marriage had broken down irretrievably; and the question of the extent to which an assessment of the parties’ responsibility for the breakdown or of their conduct in other respects was relevant to settling the financial consequences of divorce became controversial.
There seems little doubt that the ‘breakdown’ legislation was put forward on the basis that conduct should continue to be relevant to the assessment of financial provision.181 The Law Commission’s 1966 Report on the ground for divorce182 accepted that the conduct of the parties ‘must remain an important element in the courts’ decisions about financial matters;183 and the parliamentary debates on the Matrimonial Proceedings and Property Act 1970, also support the view that it was assumed that conduct would continue to be relevant to the assessment of financial provision.184 But did it follow from this that (as it was put in one of the early decided cases on the interpretation of the new law):
‘if a wife’s conduct were found to a given extent to be worse than her husband’s she would be placed in a financial position, compared with the hypothetical position, to that extent lower than his position, similarly compared?’
The fact that such an approach would be completely inconsistent with the objectives of the reformed divorce law was soon dramatically exemplified:
(p.425) In Ackerman v. Ackerman185 the President of the Family Division held that the legislation required the conduct of both parties to be taken into account, at least if it was ‘of a really serious nature, falling within the category of the disruptive, the intolerable, the unforgivable’ and a contributory cause186 of the breakdown. The President therefore heard evidence (including evidence from the couple’s 17-year-old daughter) over several days. The wife alleged that her husband had assaulted her (and been convicted by a magistrates’ court of causing her actual bodily harm) that he had called her a prostitute and a slut, engaged in unusual sexual practices and then lectured her on sex; and that he was wedded to his work and neglected his wife. For his part the husband complained that the wife had confessed to committing adultery in the Spiritualist church in Hitchin, that she was neglectful of the home and family, was obsessively jealous and suspicious, and that she had threatened him on one occasion with a knife. The President concluded that, although hers was not the major responsibility for the breakdown, it was quite impossible for the wife to escape some responsibility for it; and a discount of 25% from the periodical payments which would otherwise have been payable would be justified.187
If this approach were correct, the court would have to make an investigation into the responsibility for the breakdown of the marriage188 in a great many cases, and this would almost inevitably involve a wide-ranging investigation into the parties’ conduct. Every item of conjugal unkindness which could be dragged out of the memory would have to be embodied in an affidavit upon which the parties would be subjected to examination and cross-examination. (In one decided case189 the pleadings occupied 66 pages, the hearing lasted more than a month, and the judge’s findings occupied 64 pages of transcript.) The policy of minimising bitterness distress and humiliation was thus in serious danger of being defeated, since questions of fault would merely be transferred from the (p.426) hearing at which the grant of the decree was in issue to the hearing at which financial and other matters were decided.
In Wachtel v. Wachtel190 the courts firmly decided that this should not be allowed to happen: the notion that there should be a discount or reduction in what a wife was to receive by reason of her ‘supposed misconduct, guilt or blame’ would (said Lord Denning)191 in the ‘vast majority of cases’ be ‘repugnant to the principles’ underlying the new legislation. Since in most cases both parties had contributed to the breakdown there should be no necessity for the judge to hear the parties’ mutual recriminations and go into their petty squabbles, not least because (as Ormrod J had put it at first instance) the forensic process was ‘much too clumsy a tool for dissecting the complex inter-actions which go on all the time in a family. Shares in responsibility for breakdown could not be properly assessed without a meticulous examination and understanding of the characters and personalities of the spouses concerned, and the more thorough the investigation the more’ likely it was that husband and wife would eventually be found to bear an equal responsibility for what had happened.
In the light of this decision, the trend in practice moved towards ignoring questions of conduct in all but exceptional cases;192 and this came to be accepted by the courts193 and the legal profession. However, the courts faced considerable difficulties in defining the ‘exceptional’ cases in which misconduct might be relevant194 and also in solving the dilemma of how to resolve that issue without ‘costly, indecent, and time-wasting investigation’.195 Moreover, although the Wachtel decision may have satisfied the judges and others concerned with the administration of the law it was much more questionable whether the general public was prepared to accept the removal of blameworthiness from the factors relevant to the assessment of financial orders. Indeed in 1981 the Law Commission196 reported that many of those involved in divorce proceedings ‘felt a considerable sense of injustice because the court had not been prepared to take account of the other spouse’s behaviour, especially as this was for the parties the most important single factor in assessing financial provision’. Eventually the Law Commission concluded that the basis upon which the court exercised its financial powers on divorce merited re-examination. But that re-examination was required in part because of controversy about an even more fundamental issue, the underlying objective to which the court should seek to give effect.
(p.427) Ancillary relief: the policy objective?
The Matrimonial Proceedings and Property Act 1970197 stipulated a two-stage process for dealing with ancillary relief applications. Having considered ‘all the circumstances’ the court was ‘so to exercise its powers as to place the parties, so far as it is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other’.
But what was this intended to achieve in practice? Surprisingly, the wording was scarcely explained in the Law Commission’s Report, and was hardly discussed in the parliamentary debates.198 It appears that the Law Commission, in putting forward what became known as the ‘statutory hypothesis’ or ‘minimal loss’ principle, was intending simply to codify the principle stated by Lord Merrivale in the 1928 case of Ν v. N;199 and as we have seen it is clear that in that case Lord Merrivale was seeking merely to discourage application of the so-called one-third principle and to encourage the courts to have regard to what latterly was called the parties’ ‘reasonable requirements’. However, the literal meaning of the words might suggest that the formula gave effect to the principle that divorce, although terminating the marriage, did not terminate the financial ties which it had created, and that the primary objective of the law was that the parties’ financial position should so far as possible be unaffected by the divorce. In 1980 the Law Commission marshalled evidence suggesting that it was rarely possible in practice200 to give effect to such a requirement;201 but it seems that the direction—rightly described202 as an ‘elusive concept based on a difficult hypothesis’—was sometimes203 given the more literal interpretation by the (p.428) courts. This was seen by groups claiming to represent the interests of divorced men204 as creating injustice; and the controversy was fuelled by the ready availability of divorce, the unwillingness of the courts to consider the impact of any save ‘gross and obvious’ conduct and the greatly increased readiness of the courts to make orders in relation to capital.
This last factor is particularly significant: the question was whether the court’s objective was to ensure the wife was adequately maintained, or was it intended to achieve an equitable re-distribution of all the assets to which the two parties were entitled?
Although the 1970 legislation, as a matter of strict economic analysis, did not really extend the court’s powers (the true break-through having been made in 1963 when the courts were given power to order a capital payment, unlimited in amount against either party) it could have been plausibly argued that whilst the courts’ powers had indeed been rationalised and made more flexible—so that, for example, settlements of the family home (or other property) could be ordered—no great change of policy about the principles on which the amount of awards were to be based could have been intended. After all, it had increasingly been accepted205 that the rigid demarcation between capital and income traditional before World War I was no longer valid in a world of inflation and high taxation; whilst the explicit reference in the new legislation to the significance of contributions made to the family welfare would have reinforced the trend to order transfers where the ‘family capital’ consisted of the family home.206 On this view there was no indication that the courts were to change the traditional view of their function as being concerned with ensuring the family an adequate standard of living rather than focussing on re-distribution of capital. As we have seen, the evidence of the parliamentary debates is that the introduction of what would amount to community of property was specifically rejected at the time.207
(p.429) Here too, the judgments in Wacbtel v. Wacbtel208 had a decisive impact. The Court of Appeal,209upholding a decision to allocate to the wife a sum sufficient to allow her to fund the purchase of a house for herself,210 proclaimed that the 1970 Act was not in any sense a merely codifying statute but that it was a ‘reforming statute designed to … accord to the courts the widest possible powers in readjusting the financial position of the parties and to afford the courts the necessary machinery to that end’; and that it was intended to ‘remedy the injustice’ whereby a wife’s contributions to the welfare of the family211 were given little recognition in determining entitlement to family property. In the light of that decision, it was even possible for Lord Denning to claim212 that the court’s function on divorce was
to take ‘the rights and obligations of the parties all together and put… the pieces into a mixed bag. Such pieces are the right to occupy the matrimonial home or have a share in it, the obligation to maintain the wife and children and so forth. The court then takes out the pieces and hands them to the two parties—some to one party and some to the other—so that each can provide for the future with the pieces allocated to him or to her. The court hands them out without paying any too nice a regard to their legal or equitable rights but simply according to what is the fairest provision for the future, for mother and father and the children’.
After the Wacbtel decision it was clear that the court would use its powers to ensure that the wife and children were adequately housed; and in order to achieve this they would sometimes resort to complex settlements.213Moreover, (p.430) there could be no dispute about the extent of the courts’ powers; and it soon became accepted that these powers were not to be restricted to so-called ‘family assets’214 and that all the parties’ resources215 were to be taken into account in making the allocation. But in one vital respect the Wachteldecision was unclear: it did not give any real guidance about the underlying principle to be applied in exercising the court’s powers. Indeed, in that case the Court of Appeal had seemed to favour a fractional allocation216 of both income and capital, at least as a ‘flexible starting point’; and for a time the courts tended to fall back (certainly in relation to income payments)217 on to the one-third principle.218 But ultimately the courts moved against219 adopting a fractional approach.220 So (p.431) what (other than a general notion that the order should be fair and reasonable)221 was to be put in its place?
There was particular difficulty where the assets had been inherited from one side of the family or the other, or for some other reason there was no clear link between the wife’s contributions to the family and the acquisition of the family capital. For example, in Trippas v. Trippas:222
The husband was a partner in his family’s business. A year after the break-down of the marriage there was a take-over bid, and he received £175,000 (perhaps something over £2 million in year 2000 values). The Court of Appeal held that the wife’s contributions to the family did not entitle her to ‘claim a share in the business as such. She did not give any active help in it. She did not work in it herself. All she did was what a good wife does do. She gave moral support to her husband by looking after the home. If he was depressed or in difficulty, she would encourage him to keep going’. That (said Lord Denning223 bluntly) does not give her a share.224
This and similar cases exemplify the weakness of the two-stage process envisaged in the legislation: no indication was given of the relationship between the court’s duty to ‘have regard to all the circumstances of the case’ and its duty to place the parties in the financial position in which they would have been had the marriage not broken down. One eminent Lord Justice pointed out:225
The Wachtel case was one of two people starting their married life with ‘little or nothing but their earning capacities, and together founding a family and building up by their joint efforts such capital as they were able to save. Typically their main capital asset was the matrimonial home, bought on a mortgage and paid for out of income. These cases are true examples of equal partnership and such expressions as ‘family assets’ and ‘the wife earning her share’ are wholly apposite to them. In other cases the situation is different. One or other, or perhaps both, spouses may bring into the marriage substantial capital assets, or may acquire such assets during the marriage by inheritance or by gift from members of their families … In these cases it is necessary to go directly to the terms of [the legislation] for guidance’.
The reality may be that the terms of the legislation did not really provide this guidance; but the cases began to evidence some judicial support for inferring that the objective was no more than to meet226 the family’s ‘reasonable needs’ or perhaps their ‘reasonable requirements’.227 Towards the end of the twentieth century such an approach increasingly seemed demeaning and unfair, especially to the wives of successful businessmen. But it was discontent on the part of divorced men (and, sometimes, their new partners) which influenced the Law Commission’s decision in 1980 to review of the policy of the law. The allegation was that divorce routinely cost the husband his home and children; and resentment was likely to be particularly strong if the husband believed his wife to have been responsible for the breakdown of the marriage, and exacerbated if he believed his wife was capable of working but refused to do so or that she was being supported by a cohabitant.228 It may be that these allegations were to some extent based on a misunderstanding about the courts’ interpretation of the statute; but even a requirement limited to satisfying the wife’s ‘reasonable (p.433) requirements’ would (save in the case of the truly wealthy) often in practice mean that it would be the wife who would have first claim to occupation of what had been the family home. Whatever the truth, the feeling that the 1970 Act gave rise to serious injustice was sufficiently widespread, and articulated in letters to Members of Parliament and the Press, to lead the Law Commission to act.
The Matrimonial and Family Proceedings Act 1984: A Change of Emphasis?
The Law Commission’s 1980 discussion paper The Financial Consequences of Divorce: The Basic Policy229 was the first attempt by any official body in this country230 to analyse the principles upon which the financial consequences of divorce should be determined. In 1981 the Commission made recommendations231 based on the response to the 1980 discussion paper. It appears that there had been a substantial consensus in favour of change; and the vast majority of those who had commented on the matter considered that the direction to ‘place the parties in the financial position in which they would have been if the marriage had not broken down’should be removed from the law as being undesirable even in the few cases in which it might be practicable of attainment. The Commission accepted the need to retain a wide discretion but favoured legislation indicating certain changes of emphasis in the way in which the courts exercised that discretion. Specifically, the law should emphasise as a priority the (p.434) necessity to make such financial provision as would safeguard the maintenance and welfare of the children;232 greater weight should be given to a divorced wife’s earning capacity and to the desirability of both parties becoming self sufficient, and the courts should be more clearly directed to the desirability of promoting a smooth transition from the status of marriage to the status of independence and to the ultimate severance of financial obligations between the parties.233
Eventually, after lengthy parliamentary debate and enquiry,234 the Matrimonial and Family Proceedings Act 1984 gave effect to the Law Commission’s recommendations.235 The Act236 was not a fundamental restructuring of the law, and retained the requirement that the court considering making an ancillary relief order should consider all the circumstances, including a number of specified matters which required particular attention. It directed the court to give first consideration to the welfare while a minor of any child of the family. It contained provisions directing the court’s attention to the desirability of limited term periodical payments and once-for-all settlements in appropriate cases (the so-called ‘clean break’).237 It removed the direction requiring the court to seek to place the parties in the financial position they would have been in had the marriage continued without replacement.238 Detailed analyses of the law will be found in family law textbooks;239 but the following three general points are significant for the historical evolution of the law.
Law continues to be based on wide discretion
First, the law remains firmly based on a preference for discretion over formula and rule. It can be argued that the 1984 Act, by removing the direction to the courts to seek to place the parties in the financial position they would have been in had the marriage not broken down without substituting any alternative, has increased the ambit of the discretion. But, apparently, those administering the (p.435) law240 (an increasingly specialist practising profession and judiciary)241 believed they had been able to use this statutory framework to develop principles on the basis of which242 bespoke solutions to fit the infinite variety of individual cases and to do fairness between the parties were tailored.243 And according to the District Judges who deal with more than 85% of all the cases these principles were ‘well-known to family lawyers’ who could accordingly advise clients ‘in the confident knowledge that the litigation is likely to be disposed of fairly’.
There can be no dispute that the existence of a wide discretion has enabled the court to deal with cases against the background of changing social and economic facts (such as the inflation of house prices in the 1970s and 1980s, the emergence of negative equity in the late 1980s, the transformation of the United Kingdom from a country in which income taxes were amongst the highest in the world into one which ranks as a tax haven in respect of such taxes, and the consequences of membership of the European Union including such arcane matters as the effect of ‘milk quotas’ on a financial relief application).
Considerations of misconduct rarely relevant
Although the legislation244 directs the court to have regard (as one of the relevant circumstances) to the ‘conduct of each of the parties, if that conduct is such that it would … be inequitable to disregard it’ the courts seem still to discourage attempts to rely on allegations of misconduct.245 Equally clearly, there is some popular discontent about the way in which the courts and legal advisers have in this way given a restrictive interpretation to those provisions which direct the court. In 1996 backbench MPs forced onto an unwilling Government(p.436) an amendment of the law which was intended to give greater prominence to considerations of conduct; but that provision (along with the other provisions relating to divorce contained in that Act) has not been brought into force. It can be argued that the law as it is currently administered does not adequately reflect the community’s perceptions of what is fair and just.