Formative assignment PDF

Preview

Summary

formative assignment- criminal law ...

Description

Student Number: 189017719 Question Title: Miller v Miller, McFarlane v McFarlane [2006] UKHL 24 case commentary Total word count: 1499 (including suggested headings) 1484 (excluding suggested headings)

Miller v Miller; McFarlane v McFarlane [2006] UKHL 24 Facts: The conjoined case, Miller; McFarlane1, concerns complications with achieving fairness by dividing matrimonial property following divorce. Miller, comprises of a three-year childless marriage whereby the husband brought substantial wealth with a £17 million capital. Contrastingly, Mrs Miller’s assets were worth significantly less. Mr Miller ended the marriage, commencing a new relationship. He filed for divorce regarding unreasonable behaviour on the wife’s behalf. Nonetheless, she refuted and cross-petitioned, alleging adultery. At first instance, the judge awarded her a lump sum of £5million. Mr Miller appealed to the Court of Appeal(CA), which was dismissed. McFarlane, concerns a sixteen-year marriage with three children. Both parties obtained very successful careers. Prior to their second child’s birth, they agreed the wife would abandon her career, becoming a homemaker. When the marriage terminated, the assets valued £3million between them. However, insufficient capital complicated division of assets for a clean break between the parties. The Husband appealed to the High Court to reduce the periodical payments of £250,000 per annum to £180,000. Mrs McFarlane appealed. The CA restored the £250,000 award but limited the duration of periodical payments to five years. Mrs McFarlane appealed to the House of Lords(HL). Reasoning and decision: Miller; McFarlane formulates principles, in accordance with the Matrimonial Causes Act(MCA)19732, to achieve fairness in property division following divorce, with reference to short-term marriages. The rationale established: the needs, compensation, and the sharing principle. In Miller, the CA contended the husband’s new relationship, caused the marriage breakdown. Additionally, the legitimate expectation of Mrs Miller receiving a generous provision in the event of divorce, resulted in her £5million award. However, the HL rejected the arguments. It was erroneous to account conduct of ‘bringing the marriage to an end’ ,as the threshold of ‘regarding conduct as it would be inequitable to disregard it’ under s.25(2) (g)MCA3 was not met. Lord Nicholls held in short marriages, equal division of marital property should focus on acquirements during marriage, which Mrs Miller was entitled to. Mr Miller’s increasing wealth during the marriage renders her £5million award ‘a fair share’, dismissing the husband’s appeal. In relation to McFarlane, the CA were incorrect to consider surplus income over expenditure, which they submitted higher periodical payments allows Mrs McFarlane to accumulate a capital reserve. Furthermore, the extendable five-year periodical payment order was inappropriate as continual payments requires her justification. Such reduction 1 [2006] UKHL 24 2 Matrimonial Causes Act(MCA) 1973 3 S.25(2)(g)MCA 1973

should be Mr McFarlane’s burden to justify. Following separation, Mr McFarlane’s significant earnings exceeded the family’s financial needs. If equal division occurred, Mr McFarlane would be considerably wealthier which would not represent fairness. £250,000 constitutes fair compensation for her loss of entitlement to generous income provision, from abandonment of her career during the marriage, therefore her appeal was allowed. Critical analysis: Miller; McFarlane contributes improvement to the law by consolidating notions of ‘fairness’ in cases regarding equal division of matrimonial assets following divorce, first highlighted in White v White4. Essentially, three strands of fairness were elucidated: the needs generated by the relationship between parties, compensation and the sharing of fruits of the matrimonial partnership. These are mechanisms to achieve the overriding objective of a fair outcome. Elaboratively, the needs is paramount to fairness as this supports the first step to ‘independent living’ as suggested by Lord Nicholls and Baroness Hale.5 However, Miles claims in her article that the needs principle is advocated by some to seem “eminently fair”, in contrast to the compensation principle. It examines both party’s needs, not just the childcarer.6 However the article highlights a flaw to Lord Nicholls fairness principle is the deficient definition of “financial needs”.7 Despite considering the financial burden of either party’s children, besides this factor, the question arises as to how Lord Nicholls’ subjective interpretation of needs is generalisable to support judges in similar circumstances. Furthermore, Westlead highlights Miller; McFarlane being subject to criticism based on the perception, developed by the case, concerning short-term marriages. She contends the articulated fairness principles are rarely applicable to short-term marriages; Mr Miller’s wealth was not jeopardised by Mrs Miller and during their marriage no detriment was obtained which would require compensating. Albeit a happy decision for Mrs Miller, this invites pandemonium for prenuptial agreements of wealthy couples.8 Contrastingly, Miller; McFarlane vitally introduced the distinction of family/non-family assets, as the former may be shared and the latter may not be. The subsequent case, Rossi v Rossi9, signifies “nonmatrimonial property representing unmatched contribution…justifying, particularly where the marriage is short…,denial of entitlement to share equally…”. Whereas non-matrimonial property in long marriages will likely be classified as a matrimonial asset10. Consequently, the notion of fairness in Miller; McFarlane welcomes complexity and the Law Commission became respondent by proposing reformation of this legal area. They propose guidance on a non-statutory basis is an ‘easily accessible, clearly defined’ framework reflecting the parties various needs, essentially replacing the courts subjective standpoint with a new list of factors representing a more ‘rigorous and clear’ approach.11 Nevertheless, 4[2001]1 AC 596, HL 5 Miller; McFarlane(n 1) [140] (Hale LJ) 6 Joanna Miles “Making sense of need, compensation and equal sharing after Miller/McFarlane”[2008]CLFQ 378, 390 7 Law Commission, Matrimonial Property, Needs and Arrangements(Law Com No 343, 2014 para3.76) 8 Mary Westlead,(n 1) 18 Denning LJ 209 9 [2006]EWHC 1482 10 B v B(2012) EWHC 1482 11 Law Commission(n.7)3.94

the Law Commission highlighted such guidance may be disregarded by the courts which endures an ‘inconsistent…discretionary’ approach. Arguably, the Law Commission’s amendments appear insignificant, relating to the fairness principle. The objective in financial disputes regarding divorce is already highlighted in current law to achieve independence and the ‘single’ objective proposal is somewhat a replicate of current legislation12. Supposedly, the question is whether the Law Commission even advocated to achieving independence due to their unsupportive nature with achieving the objective as no broad assistance is provided. Despite this, the proposal initiates a good approach to defining needs of the parties. The law has made an extensive change following Miller; McFarlane, relating to the party’s needs. Analysis ‘requiring consideration of assets available for division’, the principles ‘to achieve fairness in division of…assets’ ,dealing with ‘excess income of one party over the family’s needs’ and a shift from the ‘needs-based approach’ signifies the laws developments13. Eekelaar approves of this shift, observing the move towards a welfare-style dependency excluding focus on contributions to centralising an entitlement approach.14 Essentially, this assists the courts in the form of the ‘yardstick of equality’ 15 and the breadwinner no longer provides the child-carer with their assets as the courts divides the couples joint assets. Moreover, Miller; McFarlane contributes to family welfare, not just the accumulated assets, to eliminate breadwinner/homemaker discrimination. Cooke, states “fairness means nondiscrimination”16. Additionally, Ryznar highlights “the courts perception of fairness plays a lesser role in…average divorce case…whereas big money cases present…challenges to… courts”17. Ryznar claims the difficulty is encountered when the courts are over-awarded discretion in deciding fairness in big money cases, and questions whether differential treatment of big money cases is fair. Fortunately, big money case Miller; McFarlane, extrapolated revolutionised principles and accommodated cases involving lower valued assets. Despite, efforts to clarify principles, the wide discretion granted to courts makes predictability of outcomes increasingly difficult.18 Additionally Miller; McFarlane, impacted division of matrimonial property in other countries such as Germany.19 In Germany, following divorce, initial assets and final assets are calculated to determine equalising the matrimonial property20. Despite Miller; McFarlane principles not being a universal phenomenon, Germany’s approach resembles Lord Nicholls’ and Baroness Hale’s view, implying Miller; McFarlane’s influential credibility outside England. 12 Ministry of Justice, Report on the implementation of the Law Commissions proposals,[HC 613, 2017]13 13 Jeffrey Green Russel Ltd, ‘Miller and McFarlane (2006)UKHL 24 What does it all mean? 14 J.Eekelaar, ‘Back to basics and forward to the unknown’[2001]Fam Law 30. 15 J.Eekelaar, ‘Miller v Miller: the descent into chaos’ [2005]UKHL 16 Elizabeth Cooke:“Miller/McFarlane: law in search discrimination”[2007]Child and Family Law Quarterly, Vol19,No 1,[98, 100] 17 M.Ryznar,”All is fair in love and war: But what about in Divorce? The fairness of property division in America and English big money divorce cases”North Dakota Law Review[2010] 115, 141 18 Anne Barlow, ‘Community of Property- The logical Response to Miller and McFarlane’(2007)39 B L J 19 19 Jens Scherpe(2007) Matrimonial Causes for Concern? comparative analysis of Miller; McFarlane(n 1),King’s Law Journal 20 S.1375 BGB

Conclusively, it transpires that Miller; McFarlane is a guidance judgement to equal division of assets following divorce. Lord Nicholls aims to perpetuate the overarching principle of fairness, despite the elusive concept devaluing this area of law, triggering the Law Commission’s proposals for reformation. Nonetheless, ambiguity remains in defining ‘fairness’ and inconsistencies in judicial discretion are still present. Although the rationale of fairness in Miller; McFarlane is not a universal phenomenon, the case has immense significance transferring focusing to a welfare-based approach. The question arises as to whether obtaining enriched legal certainty in multitudinous financial division cases is possible, under the courts discretion, without jeopardising flexibility- a hallmark to the nature of Family Law in England and Wales.21

21 Jens Scherpe(n 19)...