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Family Law

The leading authority on all aspects of family law

17 APR 2007

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 formula as it exists at present is a confusion of approaches. The question of non-matrimonial property has been opened up wide. Ultimately the criticisms that can be made of the position are not just academic: the decisions in big money cases trickle down to the high street and lead practitioner and client away from the objective of operating the principles of ancillary relief without recourse to litigation. For the full article see Child and Family Law Quarterly, Vol 19, No 1, 2007.

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