Home Comforts - Miller v Miller & McFarlane v McFarlane 10 years on...

8th November 2016 Family Law

The concept of the family home is an integral part of marriage. Whereas some couples wait until they’re engaged or have exchanged vows married before they buy a home, in many other cases one spouse will be moving into a property already owned by the other.

All is well, good and domestic – or it is until things go wrong, as they sadly often do.

Over the last decade, remarks made by a Law Lord in arguably one of the most notable double-headed divorce cases of recent times have had what I and my colleagues in JMW’s Family department believe to be a very significant impact across the country.

Lord Nicholls was speaking in May 2006 in a judgement which found in favour of Julia McFarlane and Melissa Miller (http://news.bbc.co.uk/1/hi/uk/5010888.stm).

When it came to dividing joint marital assets and meeting the issue of the needs of the less well-off spouse which is so important in determining a divorce settlement, he said that as the family home enjoyed a central place in the relationship, it should be classed as the property of both husband and wife, regardless of whether it had been owned by one or other before they tied the knot.

The difficulty is that just as ‘need’ is one of the critical points of emphasis in divorce, so too is ‘fairness’.

Numerous commentators have argued that merely including the place where a couple lives in a package of items to be divided fails to take account of the nuances in a couple’s financial circumstances and can lead to an eventual outcome being regarded as distinctly unfair.

That’s not least because the starting point of the asset division formula is a 50-50 split.

I can understand fully how, in a long marriage, the importance of who bought the family home blurs into the background over time. Children may have been raised and much time spent together in the house.

Familiarity make it seems so much more of a joint asset than a property bought by a spouse before a short marriage which ends in divorce. The question of ownership (and who pays the mortgage) is much fresher in the memory.

During the last 10 years, judges in both the High Court and Court of Appeal have given their own interpretation of Lord Nicholls’ comments, departing from his suggestion of an equal split of a property’s value. However, other courts have stuck more rigorously and rigidly to his words.

That difference is now being seen as positively demanding clarity, especially as the House of Lords’ role as the highest court in the land has been assumed by the Supreme Court.

Making the position simpler would certainly not dilute the correct emphasis on providing a settlement to meet the ongoing needs of the less well-off spouse. Nor would it, in my opinion, appear as anything but fair to those who are literally able to provide home comforts so helpful to married couples at the start of their lives together.

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Holly Tootill is a Partner located in Manchesterin our Family department

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