“(7) McFarlane was a paradigm case for an award of compensation in respect of the significant future economic disparity sustained by the wife, arising from the way the parties conducted their marriage. Equal division of the capital was not enough to provide for needs or compensate for disadvantage but unusually the husband’s very substantial earning power was far in excess of the family's financial needs after separation. The wife, having given up her own highly paid career for the family, was not only entitled to generous income provision, including sums which would enable her to provide for her old age and insure the husband's life, she was also entitled to a share in the very large surplus, on the principles both of sharing and of compensation. The Court of Appeal had been wrong to set a 5-year time limit on the order, on the basis that the wife would save the whole surplus above her requirements and that she would have the burden of justifying continuing payments at the end of the order, especially given the high threshold. The burden should be on the husband to justify a reduction, at which stage the court could consider whether a clean break was practicable, which would depend on the amount of capital generated by the husband. ”
“ No, it was never an all consuming passion or obsession as it appears to be becoming to [ the husband ]. I had other interests, have other interests. I was successful at what I did. I found it stimulating, I found it interesting. I was well remunerated but it was a job, I didn't view it as the whole of my life ”
“ It was a joint decision. It was something that we'd always ---- I mean, it was just sort of taken as read, really, as something that we had discussed. We discussed when it would be appropriate, decided it would only be appropriate when [the husband] had his partnership because up until then my earnings formed at least half of our family income. Because the reason that I had to go back to work after J’s birth. We couldn't afford for me not to go back to work. And as soon as [the husband] got his partnership and I had my second child decided it was then time, time was appropriate for me to give up paid work and put all my energies into the family and into the children. Q Were you happy with that decision? A Yes. I love being with my children. I find them stimulating, interesting, exciting. There are things about it that I don’t particularly enjoy but I think that's the same with every job. I work hard at it. Again, I think I have been very successful at it, and I do not regret having made that decision. ”
“ In terms of contributions, from 1991 to date the husband has been the breadwinner for this family. He has worked extremely hard and has been and continues to be very successful. In 1991 the parties made a joint decision that their children would be brought up by the mother on a day-to-day basis and she would abandon her career. It has been suggested on behalf of the husband that the wife did not enjoy her work and found it stressful; that she willingly gave up her career; implying thereby that it diminished the value of her contribution in running the home and protecting the husband from the day-today stresses of child rearing. I reject this argument. The value of the wife's contribution is derived from what she did and how well she did it, rather than her motivation for doing it and, in any event, she disputes that she did not enjoy her job. There has not been a scintilla of criticism of the wife, either as a partner or as a mother. The parties contribution to this long marriage has been different but of equal value.”
“[10] What then, in principle, are these requirements? ------------------- The first is financial needs. [11] This element of fairness reflects the fact that to a greater or lesser extent every relationship of marriage gives rise to a relationship of interdependence. The parties share the roles of money-earner, home-maker and childcarer. Mutual dependence begets mutual obligations of support. When the marriage ends fairness requires that the assets of the parties should be divided primarily so as to make provision for the parties’ housing and financial needs, taking into account a wide range of matters such as the parties’ ages, their future earning capacity, the family's standard of living, and any disability of either party. Most of these needs will have been generated by the marriage, but not all of them. Needs arising from age or disability are instances of the latter. [12] In most cases the search for fairness largely begins and ends at this stage. [13] Another strand, recognised more explicitly now than formerly, is compensation. This is aimed at redressing any significant prospective economic disparity between the parties arising from the way they conducted their marriage. For instance, the parties may have arranged their affairs in a way which has greatly advantaged the husband in terms of his earning capacity but left the wife severely handicapped so far as her own earning capacity is concerned. Then the wife suffers a double loss: a diminution in her earning capacity and the loss of a share in her husband's enhanced income. This is often the case. Although less marked than in the past, women may still suffer a disproportionate financial loss on the breakdown of a marriage because of their traditional role as home-maker and childcarer. [14] When this is so, fairness requires that this feature should be taken into account by the court when exercising its statutory powers ---------- [15] Compensation and financial needs often overlap in practice, so double counting has to be avoided. But they are distinct concepts, and they are far from co-terminous. A claimant wife may be able to earn her own living but she may still be entitled to a measure of compensation. [16] A third strand is sharing. --------- [32] In particular, I consider a periodical payments order may be made for the purpose of affording compensation to the other party as well as meeting financial needs. It would be extraordinary if this were not so. If one party’s earning capacity has been advantaged at the expense of the other party during the marriage it would be extraordinary if, where necessary, the court could not order the advantaged party to pay compensation to the other out of his enhanced earnings when he receives them. It would be most unfair if absence of capital assets were regarded as cancelling his obligation to pay compensation in respect of a continuing economic advantage he has obtained from the marriage. Mrs McFarlane's appeal [91] A third feature is that the high level of the husband's earnings after the breakdown of the marriage was the result of the parties’ joint endeavours at the earlier stages of his professional career. The wife gave up her career to devote herself to making a home for them both and for the children. As Bennett J noted, the husband was able to reap the benefits of the wife's contribution not just during the marriage. He continued to do so after the separation and after the divorce. [92] --------------- A fifth feature is that, as primary carer of the three children, the wife continued to be at an economic disadvantage and continued to make a contribution from which the children and, indirectly, the husband benefited. He was relieved of the day-to-day responsibility for their children [93] ----------------- This is the paradigm case for an award of compensation in respect of the significant future economic disparity, sustained by the wife, arising from the way the parties conducted their marriage. [96] ------------------ I agree with the Court of Appeal that when the husband has repaid the mortgage on his new home, and the wife’s earning capacity has revived, the time may be right for a reassessment of the parties’ position to see if a deferred clean break is practicable. A clean break might then be achievable by the court exercising its powers to order the husband to make a lump sum payment to the wife as consideration for discharging his liability to make further periodical payments. ----------- [97] This is something which will merit careful consideration at a suitably early date. [99] --------------------- When a review takes place the court will consider, in the light of the prevailing circumstances, what further amounts shall be paid by way of periodical payments, or capitalised and paid as a lump sum if that is practicable, in respect both of needs and compensation. As to needs, the claimant's resources are always a matter to be taken into account. And claimants for financial ancillary relief are expected to manage their financial affairs sensibly and responsibly. Thus far I agree with the Court of Appeal. But the wife’s claim for compensation stands differently. Her compensation claim is not needs-related; it is loss related. So the compensation element of her claim is not directly affected by the use she makes of her resources.”