Ancillary Financial Relief and Fat Cat(tle) Divorce

AuthorMary Hibbs,Chris Barton
Publication Date01 Jan 2002
DOIhttp://doi.org/10.1111/1468-2230.00367
CASES
Ancillary Financial Relief and Fat Cat(tle) Divorce
Chris Barton and Mary Hibbs*
Introduction
Any policy informing ancillary financial relief (AFR) on divorce is unlikely to
obtain for very long nor even be met with overall satisfaction during its tenure.
There are too many pressures, new and old, for it to be otherwise. These include:
the place of marriage in society; the parties’ high emotions, which are possibly
unique to intra-family litigation; popular misunderstanding of the policy; gender
imbalances; the ease (if only perceived) with which a party can ‘cheat’; the on-
going needs of children, which cannot normally be segregated from those of the
resident parent; the needs of second or more families; a subsequent wish to re-open
matters; and the pressure on the public purse. (It is therefore ironic that some
people would now make AFR available to unmarried couples, and/or make
marriage available to more sorts of pairs – and even more remarkable that, under
existing domestic partnership law, Mrs White might have got at least as much had
she never married Mr White).1
The litigation
The business of agriculture is the dominant feature in White. Both Martin and
Pamela came from farming families, and they themselves were in business as dairy
farmers during their thirty-six year marriage (1961 wedding – 1997 decree absolute
of divorce) during which time their two surviving children reached their majority.
By the time the House of Lords decision was reported, Pamela was 65, Martin 63.
Following their nuptials, the couple jointly bought Blagroves farm in Somerset. It
cost them £32,000, which was made up of a £21,000 mortgage and an interest-free
£11,000 loan from Martin’s father. It was worth £3.5 million at the time of the first
instance hearing in 1996. But Blagroves was not to be the only property to be
farmed as part of their business partnership. In 1971 White pere bought Rexton
farm, ten miles from Blagroves, later transferring it into the joint names of himself
and his three sons. Martin’s contribution to servicing the borrowing debt came
from his and Pamela’s farming partnership. By 1993 Rexton was in his name
alone, but still subject to mortgage. Never treated as belonging to the couple’s
farming partnership despite the two farms being run as a single unit, Rexton was
ßThe Modern Law Review Limited 2002 (MLR 65:1, January). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 79
* Centre for the Study of the Family, Law and Social Policy, Staffordshire University.
1 In the Court of Appeal (White vWhite [1999] 2 WLR 1213, 1219), Thorpe LJ re-produced thus the
argument of counsel for the wife, Paul Coleridge QC, ‘She would not have been exposed to such
treatment had she not married her partner’. Counsel’s exact words were, ‘In this case the wife would
have been far better off if she had merely farmed in partnership with the husband (for 33 years) but
never married him. That is the bizarre result achieved by the misapplication of the court’s
discretionary powers’.

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