critically evaluate the impact of the decision by the House of Lords in White v White1 in relation to division of assets and financial provisions on divorce. In particular, this paper critically reviews the White decision and considers the extent to which the decision has actually culminated in a revolutionary change in the law relating to matrimonial property and financial provision on divorce. Moreover, I shall comparatively analyse the UK legal position with the approach in other jurisdictions where appropriate.
From a family law perspective, the issue of rights to the family home have continued to be problematic and decisions in ancillary relief proceedings were addressed by the House of Lords’ decision in White v White2. This decision changed the approach to assessing financial settlements on divorce and introduced the “yardstick of equality” principle as a means to ensure fairness in the division of assets between divorcing couples. Whilst heralded as a welcome decision in introducing some much needed clarity to the division of assets on divorce3, it has been argued that such an approach is inherently dogmatic in failing to specifically address the division of rights to the family home particularly where children are involved4.
Although the reasoning in White v White specified that there was no presumption of equality on divorce, if the court intended to depart drastically from an equal splitting of assets they should have satisfactory justification for doing so. Furthermore, the governing legislative provision in this area of law is the Matrimonial Causes Act 1973 (MCA) and section 25 of the MCA provides the court with a very wide discretion of factors to take into account on division of assets, with the welfare of a child being paramount5.
As such, it is submitted that the overriding statutory requirement to consider the interests of the child inherently limits the application of White v White to cases where children are not involved as the