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DIVORCE - HOUSE OF LORDS DECISION Miller v Miller - the divorce case that could reform matrimonial law

	A decision in the House of Lords could mean family law being turned around. On 24th May 2006 the House of Lords delivered Judgment in two much publicised divorce cases. Mrs Julia McFarlane’s appeal against the time limit imposed by the Appeal Court on her maintenance succeeded. Her former husband has been ordered to pay her maintenance for the foreseeable future. Mr Miller’s appeal against an award of £5m to his wife after a 2½ year childless marriage was rejected in judgments which highlighted how unusual the case was The ramifications of the two decisions are detailed below:
	Miller 1. Behaviour or conduct is not relevant in deciding what is a fair financial settlement unless it is ‘gross or obvious’. Adultery is considered neither gross nor obvious. 2. In a short marriage involving a childless couple, the decision on what is a fair division of the assets cannot be based on the hopes and expectations for the marriage at its beginning. Instead the focus should be on the standard of living during the marriage. The award should enable the wife to make a ‘gentle transition’ to independence. 3. It is right to consider the wealth acquired during the marriage or the increase in the value of assets acquired before it. The shorter the marriage the less likely it is that pre-acquired assets will be divided equally.
	McFarlane 1. Domestic and financial contributions are of equal value, particularly where there has been a career sacrifice on the part of the wife to bring up children. Sometimes wealth is only accumulated at the end of the marriage although the groundwork has been done during the marriage and both husband and wife should share the benefit. 2. It is important in all cases to see whether a clean break can be achieved. If there is insufficient capital, an ongoing maintenance award can be made. The maintenance can be capitalised (that is paid as a lump sum) if sufficient money becomes available at a future date. 3. An assessment of the wife’s maintenance needs following a long marriage during which she has sacrificed her career to bring up children may be increased to include an element of compensation and a fair share of future income.
	It is estimated that in one in six cases, one or other partner (statistically, principally, the male partner) hid or attempted to hide assets to stop them being taken into account in a split or separation. If conduct becomes a consideration factor in splitting the family wealth, the phenomenon is undoubtedly set to become more frequent. Past surveys show that 18% of couples involved in divorce cases in 2005 used an investigative professional to check up on their partners. As Private Investigators, we expect this percentage to significantly increase should the Miller ruling come into effect.

Financial Investigator Nigel Parsons has supported separating parties on hundreds of occasions. He comments: " Currently, behaviour in a marriage has little or no direct effect on a financial settlement. The rights and wrongs are difficult to comment on, however for every justice there seems to be an injustice. Consequently our client’s motivations for finding information are currently more often about empowerment than about evidence for the financial outcome The Miller ruling could move the goalposts, making obtaining evidence for financial reasons a higher priority There may be other consequences. Parties will often try to hide assets – and that is as the law stands now. It is easy to imagine that parties in a divorce will now be much more tempted to hide or conceal assets, especially where business owners are involved, or people who have stock options or pension assets. The preference in divorce, especially considering the far too often detrimental impact on families and children has to be to strive for common sense.

Legislation currently considers financial splits in the following criteria:

Where assets do not exceed needs:	Where assets exceed needs
Housing of the parent who has care of the children Then distribution of assets according to needs and in proportion to each party's ability to meet those needs	Needs of each party Contributions of husband and wife Non-financial contributions of a homemaker and/or child carer Money or capital brought to the marriage

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