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Sandra Davis: Equal Sharing: A Judicial Gloss Too Far?

Date:10 JUN 2008

Sandra Davis, Partner, Mishcon de Reya

In McFarlane, Mrs McFarlane had had a promising career as a city solicitor. During her second pregnancy, 13 years prior to their divorce, she and Mr McFarlane agreed that she would give up her career to become a full-time mother. Following the breakdown of their marriage, their assets were divided equally in accordance with the Law Lords guidance in White. The issue that the couple litigated to the House of Lords was the quantum and term of the maintenance to be paid by Mr McFarlane to Mrs McFarlane out of his annual net income of 750,000. The House of Lords upheld the first instance decision that Mrs McFarlane should receive maintenance of 250,000 per annum until she died or remarried. Justifying an award that exceeded Mrs McFarlanes needs, the House of Lords said she was entitled to compensation to redress the significant prospective economic discrepancies that arose because of the way the parties had conducted their marriage. Mrs McFarlanes entitlement arose because, having given up work to care for the family, the potential fruits of her career had been lost forever.

In this article Sandra Davis argues that as a result of the decision in McFarlane, a working wife suffers the relative detriment of being compelled to work until her retirement. By contrast, the non-working wife is rewarded for not working (and therefore contributing less than the working wife) with a maintenance award including a compensatory element. This, she argues, operates as a disincentive against the non-working recipient entering the employment market.

For the full article, see May [2008] Family Law journal.

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