Dividing up a ‘marriage partnership’

Press, 3 October 1979, Page 18

Dividing up a ‘marriage partnership’

Mr S. G. Erber, a Christchurch lawyer who has had considerable experience in cases concerning the new Matrimonial Property Act, considers how that act has been interpreted by the Court of Appeal. Some important aspects of the law, including

the sharing of debts and the effects of the division of property on maintenance orders or agreements, have not yet come before the Court of Appeal and are not discussed. The second part of Mr Erber’s article will appear tomorrow.

At the end of the Parliamentary session in 1976, the Matrimonial Property Act was passed. The act was a radical departure from the law as it had been; yet. when it appeared, many lawyers and members of the public felt they had been given little time to consider the act as it appeared in its final form. The act sought to remedy the unfairnesses of the 1963 act by recognising something Parliament assumed to exist namely, “the equal contribution of husband and wife to the marriage partnership.’’ There is no doubt that unfairnesses existed. Wives, in particular, had often been shabbily treated and their real contributions in the marriage less than adequately recognised. The purpose of this article is to examine as best as can at present be seen, some of the basic provisions of the act and the way in which the Court of Appeal seems to be approaching problems which have arisen. Is the act fair? Does it do justice—or is the cure worse than the disease was? When first the lawyers looked at it, the act seemed tolerably simple to understand. There were grey areas, but generally speaking lawyers appreciated that it was an act which was designed to change the law and also to reform it. It provided that a husband and wife whose marriage was of some substance and length would share the matrimonial home and chattels equally, unless there were exceptional circumstances where that rule should not apply. It was thought by many (but not all) • that those exceptional circumstances would be interpreted by the judges to suit each case, so that it need not necessarily follow that in every marriage the matrimonial home and chattels would be shared equally. Many lawyers thought that matrimonial property which was not in the special category of being the matrimonial home or chattels would, on the face of it, be divided equally, but that it would be tolerably simple to show that where one or other of the spouses had made a significantly greater contri-

bution to the acquistion of marital assets, the result would be that the property would be susceptible to unequal division. Lawyers thought that the judges would give wives a better deal than they had previously had, but that a spouse who could show that his or her contribution produced more for the marriage than the contribution of the other spouse, would be more generously treated by the courts. Lawyers thought then that the apparent equal sharing provisions of the act would not be stringently interpreted by the courts because of the intrinsic unfairness that would produce in certain cases. Shortly put, lawyers at first thought, “Plus ca change . . The public took much the same view. It might be fair enough that the wife should receive recognition for the fact that she may have kept home and borne and reared a family; nevertheless that was not the sort of stuff that produced family assets. While the wife might get a bit more

than she would otherwise have got under the old law, the lawyers would see to it that the unequal division of assets which had been a feature of the old law would be continued, although with a slightly greater bias in favour of the wife. From February, 1977, the judges had to look at the act. They had to say what the act was about and who was to get what. In those early days some of the judges agreed with the lawyers’ point of view’, that an equal division of property, which on the face of it was unfair, should be discouraged. However as time went by, the difference in approach among the judges became less marked. Early on. judges had come to the view that the act meant what it said, when it said that the home and chattels should be divided equally. Many of the judges however did agree that w'here one spouse had made a contribution to the marriage partnership w’hich was clearly greater than that of the other spouse by; for example injecting large sums of cash into the marriage, or working obsessively without holidays throughout the marriage, then such feats of financial ability or intemperate endeavour should be rewarded by the receipt by that spouse of the lion’s share of property which did not come within the special category of being the home or family chattels.

Some of the judges also thought that, where a predominating feature of a marriage was the financial aspect of it. a financial contribution of one spouse which was. on any view of the matter, vastly greater than that of the 'other spouse, should not only result in an unequal sharing of property which was not categorised as the matrimonial home, but also of the matrimonial home itself. Now. since March this year, the Court of Appeal has considered the philosophy behind the act, and set out the philosophy which it considers the judges and lawyers, and the public, should adopt when considering questions of matrimonial property. In most respects the recent judgments of the Court of Appeal have shown that the initial thoughts of the lawyers and the public were wrong; and some judges had been wrong. What the Court of Appeal says is very important, because for most people the law is what the Court of Appeal says it is. Certainly litigants who have means may carry their battles on to the Privy Council, but there is a very arguable case for saying that the Privy Council is not likely to overturn decisions of the Court of Appeal, particularly where those decisions are unanimous and where they bear upon the social structure of the country and the social philosophy of this country’s Parliament. However, what the Privy Council may or may not do in the future is impossible to tell. The decisions of the Court of Appeal would seem to show that it will construe the act in such a way as will best give strict effect to the statement in the introduction to the act which says that it is: “An act to reform the law of matrimonial property; to recognise the equal contribution of husband and wife to the marriage partnership. . .” The construction of the act adopted by the Court of Appeal is likely to be bad news for whichever spouse is on the paying end of matrimonial property litigation. Most people who have experienced any form of matrimonial disaffection which has resulted in them taking advice, know that in respect of the matrimonial home and the chattels in it the law presumes that the husband and wife will share equally. They will share equally unless there are extraordinary circumstances which in the opinion of a court would

render it repugnant to justice that there should be equality. As has been said, a liberal interpretation of this exception was hoped for by many —usually the husbands. The opposite happened. The court has held that the circumstances must truly be very extraordinary indeed if the matrimonial home is to be divided otherwise than equally. Mr Justice Woodhouse stated firmly that the language of the act in making the exception to equal sharing of matrimonial home and family chattels was “. . . vigorous and powerful language to find in any statute and I am satisfied it has been chosen quite deliberately to limit the exception to those abnormal situations that will demonstrably seem truly exceptional and which by their nature are bound to be rare.” The spirit of that statement was shared by Mr Justice Cooke and Mr Justice Richardson. Of course, it is often said that apparent guidelines laid down in an early case are interpreted in a later case by the Court of Appeal in a manner which might indicate to the ordinary person that the court had' changed its mind. This is the process which is known to lawyers as "distinguishing” the earlier case from the later case because the later case is in some way materially different. However what the Court of Appeal has said about the exceptions to the equal sharing provisions of the matrimonial home are clear statements of principle and, so far as one can look into the future, it seems unlikely that those indications of principle are going to be changed, at least to any significant degree. Now, there often arises the case where it is clear that one spouse had provided the whole, or substantially the whole, of the money which created the matrimonial home, or had in fact brought the matrimonial home itself into the marriage. Can this fact alone qualify as an extraordinary circumstance? Here the judges of the Court of Appeal have taken a firm view on the general principles. The judges have affirmed as their view that

a disparity of contribution might conceivably result in unequal sharing of the home, but there would have to be a gross disparity in all significant aspects of the marriage partnership for such a result to occur. Simply providing the matrimonial home itself and maintaining it was by no means an extraordnary circumstance. Turning away from the matrimonial home, the Court of Appeal has looked at “other'' matrimonial property, that is to say property being money, superannuation or whatever which has been acquired during the marriage by the husband and wife. If such property is to be shared unequally, the person who asserts that there should be inequality must prove it, and he must prove that his contribution to the marriage partnership had "clearly b n en greater” that that of his spouse. Whatever anybody may have thought the position to be in February. 1977, it is now clear that an argument designed to show that the contribution, of say a husband, to any particular asset was obviously greater than that of his wife, and that therefore he must have a greater share in that asset, is doomed to failure. What the husband must do is show that his contribution to the marriage as a whole, to the "marriage partnership” (whatever that term means) has clearly been greater than that of his wife. Well, you might say. that would be easy enough because all he has to show is that he did more in the marriage than she did. But that is not the way in which it is looked at by the Court of Appeal. “In weighing contributions to the marriage partnership the court will often have to compare what are more naturally incomensurables: non-monetary contributions, not necessarily even of a material kind, against monetary ones. (The act) excludes any presumption that the latter are more valuable.” That is the view of Mr Justice Cooke and indeed of the Court of Appeal. Exactly how this test is going to be applied, if indeed it is a test, is going to vary. (To be continued tomorrow.)