Miller/McFarlane: law in search of discrimination

Elizabeth Cooke University of Reading. The House of Lords' decision in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24 [2006] 1 FLR 1186 (Miller/McFarlane) is to be welcomed for the guidance it gives about matters such as conduct in ancillary relief cases. However crucial issues of principle were left unresolved in the House of Lords' earlier decision in White v White [2001] 1 AC 596 and what was needed from Miller/McFarlane was a decisive theoretical lead which would enable practitioners to predict the operation of the yardstick of equality in the face of new issues and in particular as it affects the average client of a high street law firm. The operation of s 25 of the Matrimonial Causes Act 1925 remains the subject of considerable uncertainty and ancillary relief principles cannot be applied with any assurance. This position and its various aspects are compared with systems elsewhere in Europe where the principles are far clearer. It is submitted that the ancillary relief system could involve a mid range discretion requiring a determination of defined factors. Despite the useful guidance given in Miller/McFarlane the...

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