Ancillary Relief: Complicating the Search for Principle

AuthorAlison Diduck
DOIhttp://doi.org/10.1111/j.1467-6478.2011.00543.x
Publication Date01 Jun 2011
JOURNAL OF LAW AND SOCIETY
VOLUME 38, NUMBER 2, JUNE 2011
ISSN: 0263-323X, pp. 272±300
Ancillary Relief: Complicating the Search for Principle
Alison Diduck*
Calls have been made for clarification of ancillary relief law in
England and Wales. The judicially created objective of fairness is said
by many to be indeterminate and to lack a principled foundation. This
paper examines judicial discourse in four recent decisions made by the
highest courts of appeal and suggests that a principle of equality may
be taking shape in the law. It goes on to suggest that while equality is
important in ancillary relief, there are both risks and advantages
associated with it, given that there is no clear consensus on its meaning
either in family life or family law.
INTRODUCTION
The Family Court takes the rights and obligations of the parties all together ±
and puts the pieces into a mixed bag. Such pieces are the right to occupy the
matrimonial home or to 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
out to the two parties ± some to one party and some to the other ± so that each
can provide for the future with the pieces allotted to him or her. The court
hands them out without paying too nice a regard to their legal rights or
equitable interests but simply according to what is the fairest provision for the
future, for mother and father and the children.
1
These words were written in 1981 but not much has changed in the scope
of the broad discretion given to courts to (re)distribute a family's wealth on
separation or divorce. For married or civilly registered partners, that
discretion is exercised in ancillary relief claims in England and Wales on the
272
ß2011 The Author. Journal of Law and Society ß2011 Cardiff University Law School. Published by Blackwell Publishing
Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*Faculty of Laws, University College London, Bentham House, Endsleigh
Gardens, London WC1H 0EG, England
a.diduck@ucl.ac.uk
My thanks go to Shelley Day Sclater, Michael Freeman, Felicity Kaganas, Robert
Leckey, and David Seymour for their generous discussion and thoughtful comments on
this paper.
1Hanlon v. Law Society [1981] A.C. 124, 147 per Lord Denning.
basis of the factors enumerated in the Matrimonial Causes Act 1973 (MCA)
and its judicially created objective of `fairness'.
2
But fairness is an `elusive' concept;
3
both its content and potential for
realization are contested. It is, nonetheless, a value that has great rhetorical
force. In political philosophy the Rawlsian ideal is of a fairness, charac-
terized by Sen for example, as impartiality,
4
as prior to or foundational for
justice.
5
While the idea of fairness as impartiality is not completely absent
from specific legal contexts,
6
in ancillary relief law its meaning has been
acknowledged to change from time to time and to be contingent upon the
facts of an individual case.
7
It is assessed according to principles derived
from established norms about `family' life:
The guidelines (to be laid down by appellate courts on the relative weights to
be given to various factors in different circumstances in ancillary relief
claims), not expressly stated by Parliament, are derived by the courts from
values about family life which it considers would be widely accepted in the
community.
8
According to Lord Hoffmann in 1999, then, the normative foundation of
fairness in this area of family law lies in community values of `family life'.
But neither community values nor family life, of course, remain static, and
so it is not surprising to observe shifts from time to time in how they, and
consequently fairness, are perceived by the courts. They suit from time to
time, said Sir Mark Potter in 2007, the society of their day.
9
In the last
decades of the twentieth century, for example, fairness was said to be
subjective as between the parties, emphasizing `moderation' in the bread-
winner's responsibility to meet the reasonable requirements of his
dependant.
10
In 2000, however, the House of Lords said that fairness, and
273
2 First in Piglowska v. Piglowski [1999] 2 FLR 763, then conclusively in White v.
3Miller v. Miller; McFarlane v. McFarlane [2006] UKHL 24, para. 4, per Lord
Nicholls.
4 A. Sen, The Idea of Justice (2009).
5 J. Rawls, Justice as Fairness: A Restatement (2001, 2nd edn.). The meaning and
place of fairness for a philosophy of justice is the subject of debate: see, for
example, R. Dworkin, Sovereign Virtue: The Theory and Practice of Equality
(2000); J. Wolff, `Fairness, Respect, and the Egalitarian Ethos' (19 98) 27
Philosophy and Public Affairs 97; T. Hinton, `Must Egalitarians Choose Between
Fairness and Respect?' (2001) 30 Philosophy and Public Affairs 2.
6 `Fairness' has specific meaning, for example, in administrative law.
7White, op. cit., n. 2.
8Piglowska, op. cit., n. 2, p. 785.
9Charman v. Charman [2007] EWCA Civ 503, at para. 106.
10 In the little-used form of a postscript to the final judgment in Charman, id., Sir Mark
Potter P, writing for the Court, reviews the changing law under the MCA before
calling for a comprehensive review of the law by the Law Commission. On the pre-
White case law he says (para. 106):
The applicant's reasonable requirements became the focus of the case, through-
out its preparation and its final determination. . . . The emphasis on the
ß2011 The Author. Journal of Law and Society ß2011 Cardiff University Law School

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