Closing Pandora's box

District Judge Susan Spencer discusses the implications of the Court of Appeal's recent ruling on ancillary relief

When a marriage comes to an end, no matter what the size of the assets involved, the party who believes he or she earned the bulk of those assets will use whatever ingenious arguments available to keep them.

Typically, the earner, often the sole earner in a family - be it big money or not - is the husband, and the person who stays at home with the children is the wife.

It is one of the jobs of the court, as charged by section 25 of the Matrimonial Causes Act 1973 to ensure that fairness prevails over any temptation towards discrimination, as in White v White [2000] 3 WLR 1571.

Since White, in so-called 'big money' cases there has been ample opportunity for consideration of what 'fairness' entails.

White established a 'yardstick of equality' test, but clearly did not interpret that as meaning actual equality of division of assets in all big-money cases.

While the wife no longer had to restrict her claim to her reasonable needs after White, the likely percentage share of a wife in big- money cases settled at around 37%, not 50%.

Special contributions

In Cowan v Cowan (2002) Fam 97, decided in May 2001, there was a long marriage of more than 30 years with two children.

The family had used hard work and ingenuity to build a considerable fortune from scratch.

The wife had worked, including alongside the husband for about the first 11 years of the marriage.

During this time the plastic bin bags which were the source of the family fortune were first developed.

Counsel for the husband said that making the fortune was down to the 'stellar quality of the husband's contribution', and therefore fairness required that he have more than 50% of the assets.

Lord Justice Thorpe was persuaded of this.

He said: 'Fairness certainly permits and in some cases requires recognition of the product of the genius with which one only of the spouses may be endowed.'

And he distinguished between the capacity of Mr Cowan to work, which he said was dependent in part on the wife's homemaking, and his creativity, which he said was not.

Of course, there were other complicating factors in Cowan.

Mrs Cowan received 38% of the assets.

There were no such complications in the recent case of Lambert v Lambert (2002) The Times, 27 November, which Lord Justice Thorpe described as 'textbook'.

The 23-year marriage produced two children and a fortune of 20.2 million, which was reasonably available for distribution.

At first instance, Mrs Lambert was awarded 37%.

The family money came from the sale of shares in a free newspaper business.

This business was started by the husband about nine months before he met his wife.

She said that not only had she been a full-time wife and mother throughout, but also that she had had a pivotal role in the early days of the company.

At first instance, this contribution was in fact found to be modest.

Mr Lambert was not described as 'stellar', but his efforts were characterised as being as 'really special', or 'exceptional' as those of Mr Cowan.

He was 'not merely a successful businessman but an exceptionally active, determined and innovative one'.

The wife's contribution overall was described as 'without any feature which can be described as 'really special'.

The wife's leading counsel asked at first instance what more the wife could have done.

The judge said: 'In the circumstances, probably nothing', adding: 'That, in my view, does not lead to the conclusion that an award of less than 50% is unfair...[the award departs from the yardstick of equality] in deference to the really special contribution of the husband as described'.

This was recognised by the Court of Appeal as raising 'the obvious danger of gender discrimination'.

In Lambert, Lord Justice Thorpe said: 'If the decision of this court in Cowan v Cowan has indeed opened what Mr Justice Coleridge describes as a forensic Pandora's box, then it is important that we should endeavour to close and lock the lid.'

He continued: 'A distinction must be drawn between an assessment of equality of contribution and an order for equality of division.

A finding of equality of contribution may be followed by an order for unequal division because of the influence of one or more of the other statutory criteria as well as the over-arching search for fairness.'

Equally, his condemnation of the costs of the minute examination of the parties' business conduct and activities during the marriage was clear.

Such investigations are part of what is being put back in the box.

What then of the special contribution? It is not gone, but Lord Justice Thorpe said: 'In sum (sic) I am much more wary of the issue of special contribution than I was in writing my judgment in Cowan...

I propose to mark time on a cautious acknowledgement that special contribution remains a legitimate possibility but only in exceptional circumstances.' He refused to speculate on what might be exceptional.

Modest means cases

White has had some impact on what is routinely submitted to the judge and addressed in the judgment.

Most divorces occur during the minority of the children.

Providing for those children, and in consequence also the person with care, is the first consideration.

There is often little scope for the practical application of White leading to a 50/50 result.

There is still less scope for a Cowan argument on wealth creation as by definition the wealth has not been created, which would provide the excuse for the debate.

All else being equal, a fully contributing homemaker can expect to be treated the same as a successful business person.

But what of the person with care who is homemaker and money-maker too? Or what of the person with care who for many years also cared for the moneymaker's sick elderly mother, now deceased?

These roles could occur in a marriage with assets of any size.

Should not the homemaker who has worked throughout the marriage, has been responsible for an important part of the family's finances, or has provided extra care as described have more than 50% to reflect this? The first example is certainly statistically exceptional, and the second morally outstanding.

The box may have been locked, but as yet no one has thrown away the key.

District Judge Susan Spencer sits at Leeds Combined Court