Is equal always fair?

8 September, 2017
by: Cripps Pemberton Greenish

It appears not, according to the Court of Appeal’s recent ruling in Hart v Hart. Despite a long marriage of 23 years, assets created between the couple during this time were not equally shared between them on divorce. The court awarded the wife £3.5m of a total of almost £9.4m.

This ruling appears to put the progress of case law since White v White in 2000 into reverse.  In that case, the Supreme Court had made clear that, in deciding how matrimonial assets should be fairly distributed between a couple on divorce, there should be no discrimination made between the contributions made by the money maker and the home maker. Particularly, that where there are resources available beyond what a couple needs, that the division of the family resources should be checked against ‘a yardstick of equality’.

This has been accepted as an obviously fair principle to be applied, after decades of unfair and discriminatory case law before White. Hart turned on the fact that much of the wealth created by the husband pre-dated the marriage and so should be retained by him.  If Hart is now to lead the way, the question is begged again at how a domestic and family contribution can ever ‘outweigh’ a financial contribution to the marriage. How can that inequality be fair?

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