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Family Law

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05 FEB 2010

Compensation Culture: the latest <i>McFarlane v McFarlane</I>

MARGARET HATWOOD, Partner, Anthony Gold Solicitors

In Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 1 FLR 1186 described as the paradigm case for an award of compensation, the House of Lords said that not only did the court have to have regard to the s 25 Matrimonial Causes Act 1973 (MCA 1973) criteria but to three additional strands namely needs, compensation and sharing. This article seeks to examine how the second strand, compensation, is relevant in substantial asset cases, those with more modest assets and claims for variation of maintenance. In Miller/McFarlane Lord Nicholls said (at para [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.'

So how have the courts dealt with compensation post Miller? Is the principle limited to exceptional cases like McFarlane? Or is it possible that the average professional woman who gives up a career for a family could make a claim?

To read the rest of this article, see January [2010] Family Law journal.

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