In the last installment I talked about the facts of the case. The Judge Lord Justice McFarlane was keen to emphasise that consistent and established principles are the “welcome fruit of a jurisdiction founded upon clearly understood principles” and that he was not looking to rock the boat in this area of law. This statement at the outset of this judgment is crucial to note when considering the implications of this decision going forward.
In coming to his conclusion, Lord Justice McFarlane considered whether what has become known as the ‘sharing principle’ was established. He considered the ‘Equality’ section of Lord Nicholls’ speech in White, commenting that “Lord Nicholls expressly disallowed the establishment of a ‘presumption’ or ‘starting point’ of equality” and considered his use of the word “yardstick” when discussing equality as an indication that fairness will sometimes require an outcome not based on equal shares. When addressing Lord Nicholls’ comments about there being no bias in favour of the money-earner over the home-maker, Lord Justice McFarlane said that this was only relevant in this case in the final few months of the marriage when Mr Sharp left work to project-manage the renovation work of their new home. In addition to this, Lord Justice McFarlane considered Lord Nicholls’ judgment in Miller where he said that the “yardstick of equality is to be applied as an aid, not a rule… A short marriage is no less a partnership of equals than a long marriage. The difference is that a short marriage has been less enduring. In the nature of things this will affect the quantum of the financial fruits of the partnership.” This is crucial as, while it recognises the principle of an equal partnership in all marriages, it highlights where judicial discretion can be exercised in short marriage cases where the facts merit a departure from the sharing principle in order to achieve fairness.
Moving on to discuss Hale LJ’s speech in Foster, Lord Justice McFarlane noted that she said the consideration should be what each of the parties had contributed to the assets. The assessment of the contributions highlights the fact that both parties worked during the majority of the marriage and did not have any children. This meant there was an equal level of contribution to the welfare of the family for most of the marriage. Considering that Mrs Sharp’s financial contributions to the marriage were so much greater than Mr Sharp’s, the minimal difference in contribution to the welfare of the family was not seen as enough to offset the financial disparity, along with the fact that the husband had an affair. Lord Justice McFarlane held that in this case:
“The husband made no contribution to the source of the wife’s bonuses and this is not a case where, save in the final year, the husband is said to have contributed more to the home life or welfare of the family than the wife. This case is, therefore, a ‘non-business partnership, non-family asset case’ where the bulk (indeed effectively all) of the property has been generated by the wife.”