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Child and Family Law Quarterly/2005, Volume 17/Issue 3, September/Articles/Case Commentary: Flirting with
academic categorisations - McFarlane v McFarlane and Parlour v Parlour - [2005] CFLQ 415

Child and Family Law Quarterly

[2005] CFLQ 415

1 September 2005

Case Commentary: Flirting with academic categorisations - M cFarlane

Katherine O'Donovan

Professor of Law, Queen Mary University of London.

This commentary ask s whether academic categorisations of the purposes of ancillary relief might aid the
judiciary in their creative interpretations of statute. It explores recent changes in judicial attitudes and academic
responses thereto.

Judging McFarlane/Parlour, Thorpe LJ, in the Court of Appeal said:

'My present view is that in this jurisdiction w e should not flirt w ith, still less embrace, any of the categorisations of the
defining purposes of periodical payments advanced by academic authors. The judges must remain focused on the
statutory language, albeit recognising the need for evolutionary construction to reflect social and economic change.'1

In this view, allowing one model, such as either the entitlement model, or the compensation model, to dominate
in the allocation of assets on divorce is 'to don a straitjacket' whereas 'the statutory checklist and the overall
circumstances of the case allow the judge to reflect factors' which are inherent in various models.2 Thus
discretion is preserved and, in terms of precedent and adaptability to each particular case, the overriding objective
laid down in the White case of 'a yardstick of equality' is observed.3 Determining the content of fairness is left
open. But therein lies the problem. Into this space come academic models of fairness, judicial attempts to
enunciate principles, and comparisons with other jurisdictions. The presence of models and principles remains
underlying the effort to be fair permitted by discretion conferred by statutory language.

Fairness does not necessarily demand equality, but views of its content change. Thus Wall LJ, in
McFarlane/Parlour, acknowledges 'the old "one-third" rule as discriminatory' saying it 'may well have caused
injustice to women payees'.4 Indeed, fairness to children may require that a large share of financial assets be
devoted to their upbringing. As John Eekelaar notes, various 'principles' have been tried and discarded since the
inception of the Matrimonial Causes Act 1973. 5 The judiciary are on the move but is there a map?

The appeals in McFarlane and Parlour were heard together. Both involved the question whether periodical
payments could exceed the needs of the payee to enable accumulation of capital, where there is insufficient
capital to achieve an immediate clean break. In both cases the payer's post-divorce income was sufficiently large

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to permit this. This can be construed as a postponed lump sum to be paid in instalments as part of a clean break
divisions of assets. The objection to such a possibility was the perceived principle, based on de Lasala, that an
award of capital is made once and once only and that the purpose of periodical payments is maintenance. 6 The
Court of Appeal found nothing in statute nor in the history of periodical payments from 1970 to support that
limited role. Thorpe LJ doubted 'the modern relevance of the distinction sought to be drawn between income and
capital',7 and asserted that the limitation of periodical payments to the needs of the payee is not supported by
evidence from other jurisdictions. A later transfer of capital may be agreed or judged to be fair consideration for
the surviving claims to periodical payments. To Latham LJ, 'reasonable requirements does not give effect to the
statutory provisions of sections 25(2) (b) and (f), which require the court to look to the future'.8

The cases

In McFarlane, the outcome was that the Court of Appeal restored an order given by the District Court for
£250,000, limited to an extendable period of 5 years from the date of the trial. Equal division of the family assets
of about £3 million, and the husband's responsibility for school fees of three children plus their support at
£20,000, had already been agreed. His net income £753,00 per annum was in question. The wife quantified her
spending needs at about £128,000 a year, a figure accepted by the district judge, although not by her ex-
husband, who placed them at £100,000. In the High Court, Bennett J made the interesting move of agreeing with
the district court judge's assessment of needs, but nevertheless allowing an increased figure of £180,000. The
reasoning was that an order such as the husband proposed (£100,000) would be 'thoroughly mean and unfair',
that limiting the order to the wife's needs (£128,000) would be to fail to take account of all the section 25 factors,
so the uplift of £52,000 in excess of needs was as near to perfection that a family judge can get. 9 The Court of
Appeal, in restoring, but limiting the term of, the district court order, enabled an accumulation of £122,000 per
year over 5 years, to be put aside to fund a clean break, whereas Bennett J did not place a term on the
payments. The House of Lords is scheduled to hear an appeal early in 2006. The District Court judge's order was
restored because the High Court's powers on appeal are limited to review of the original order.10 Only if there is
an error of law can a new order be substituted. The Court of Appeal disagreed with Bennett J's view that the
district judge had erred in subverting the principle that an award of capital is made once and for all. 11 By failing to
see that clean break is at the heart of the matter, and that a future surplus can fund that, Bennett J had himself
erred. It must be noted however, that the district judge also did not identify clean break as central.

Parlour concerned the husband's income as a football celebrity, which was likely to diminish in the future. Again,
the division of capital between the parties had been agreed, and at issue was the quantum of the wife's periodical
payments order. The husband's net income was about £1.2 million. In the High Court, the wife's 'reasonable
requirements'12 were estimated at £120,000, with an addition of £30,000 for the three children together, but an
order of £212,500 per annum was given, taking account of all the factors of section 25, and because the husband
has an ability to pay far more. This was surpassed with an order by the Court of Appeal for £440,000 per annum
for a 4-year extendable term from the date from the trial. In both cases the Court of Appeal seems to have been
working from an order roughly equivalent to one-third of the payer's income, but limited to a term of years. One of
the odder features of the Court of Appeal decision is that, while Thorpe LJ asks why the White yardstick of
equality 'should not be applied as the measure for division of income', 13 this is not the order given. Rather,
provision is for reasonable needs for a limited term, with an accumulation of surplus to fund a clean break. 14

The creative, even radical, aspect of the Court of Appeal's approach means that a ceiling of 'needs' or 'reasonable
requirements' will not be imposed where there is an excess of income over need for both parties. This approach
will be used where there are insufficient assets to fully fund a clean break inaugurate, particularly where the
accumulation of income by the payee will enable self-sufficiency in a relatively short period. The logical inference
to be drawn is that in cases of sufficient capital to fund a clean break with capitalised periodical payments, this
will be done at the time of divorce.15 A further possible inference is that, where a pension order under section
25B-D of the Matrimonial Causes Act 1973, is not possible, accumulation of periodical payments in excess of
enhanced needs will be advised by the court. In McFarlane/Parlour, the Court of Appeal made clear that the
judicial attitude to further applications for periodical payments after the expiry of the term years will be that this
'savings lesson' is to be taken into account. There is a strong hint that failure to save will lead to a lack of
sympathy for further provision and the obligation and responsibility to invest is shared by both parties. 16 The goal

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for the payee remains financial self-sufficiency, an ideal drawn from the Law Commission Report of 1981 and
reflected in section 25A of the Matrimonial Causes Act 1973. 17

The similarities between these cases have been noted above. There are differences also. It can be readily
appreciated that each marriage is unique. However, at the risk of introducing academic categorisations, it is
arguable that two different models are present. McFarlane can be placed in the 'sacrifice' bracket, in that, when
the second of three children was born, the parties agreed that the wife would give up her career as a city lawyer.
Parlour might be said to involve 'exceptional contribution' in that Bennett J in the High Court said. 'I accept that
the wife's contribution (as I have found it to be) made a significant difference to the success of the husband'. 18
The husband had 'publicly praised the wife for all that she did to bring him back from the brink' to which his
'laddish behaviour' had led him. 19 Thus the wife can be said to have contributed to the husband's career and to
have enhanced his income by her efforts.

A sacrifice marriage occurs where one spouse gives up career prospects and income in order to accept a caring
role in marriage. By bringing up children, keeping house and acting as personal assistant, a contribution is made.
The point is that the development of self as a market-participant is abandoned, or at least reduced. The notion of
'sacrifice' is based on the theory of human capital investment, whereby persons are assumed to be potential
market participants, investing in themselves through education and training. There are clear judicial messages in
White and subsequent cases that no discrimination will be made based on roles in marriage. The parties in
McFarlane lived together in marriage for 17 years. It is from sacrifice that the idea of compensation may follow. 20

If Parlour is an exceptional case, it is not to be classified with the 'stellar contribution' case of Cowan, 21 which
justified an unequal distribution of assets to the earner and which was largely disposed of in Lambert.22 In
Parlour the marriage was for 3½ years, although the couple's relationship was stated in the High Court to have
lasted for 7 or slightly more years. Mrs Parlour acknowledged at the trial that she had not sacrificed career
prospects when she gave up work with her partner's encouragement on becoming pregnant with her first child.
The Court of Appeal did not say that her contribution was 'stellar', but accepted the finding in the High Court that
she had made a contribution 'over and above' thereby enhancing her husband's income. The Parlour case has
been interpreted in the specialist profession as one of contribution beyond the norm.

Parlour seems to illustrate an economic model of enhanced income of the earner due to efforts made by the non-
earner. The findings of Bennett J in the High Court, that by persuading the husband to move away from a drinking
culture then prevalent at his club, 'the wife did make a contribution to the husband's success as a footballer for
(Arsenal) and also for England', 23 and that she 'was part of the circumstances that persuaded the husband to
drop the laddish culture and, as she put it, "grow up"',24 were accepted by the Court of Appeal. So despite a
relatively short relationship, the enhanced income of the husband due to the wife's efforts is added to 'her
contributions to the home and children' (caring role) in an attempt at fairness.

The difficulties for the courts lie in searching for principles on one hand and fairness to parties on the other.
Accepting 'contribution over and above' leads us back to looking to behaviour/conduct in marriage, from which the
courts have tried to escape. As is obvious the discretion created by the provisions of section 25 of the
Matrimonial Causes Act 1973 enables the court to treat each case individually. But in so doing, it seems
inevitable, despite judicial attempts to evade this, that contribution to the marriage will be argued and may affect
the outcome of the ancillary proceedings. Yet there is judicial unanimity that it is undesirable that details of the
nature of contribution in the home be probed. In Lambert, Thorpe LJ indicated that the courts wish to 'close and
lock the lid' on the minute examination of contributions. 25 This seems to be an unexceptionable principle, which
not only limits the length of hearings, but also enshrines the 'yardstick of equality', as the adoption of either
breadwinner or carer roles in marriage leads to contributions that are incommensurable. 26 The idea of contribution
over and above the norm might be thought to undermine the respect for privacy implicit in avoidance of detailed
investigation.

Search for principles or stick with practice?

In White, Lord Nicholls of Birkenhead stated that principles 'should be identified and spelled out as clearly as
possible'. 27 Lord Cooke saw the statement of guidelines from time to time as part of the function of the House of
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Lords. But the reality is that the courts are wary of tying their own hands. Given the particularities of each
marriage this is understandable, but inconsistencies occur. Despite careful enunciation in recent cases of
interpretations of the statutory guidelines, words such as non-discrimination between husband and wife as a
'principle of universal application' (White); of fairness not necessarily meaning equality (McFarlane/Parlour); of 'a
yardstick of equality of division' to be applied before a final decision on the outcome of division of assets, but
equal division not to be a 'starting point';(White) 'equality should be departed from if, and only to the extent that,
there is good reason for doing so' (White); that contributions to family welfare are to be judged equal regardless of
source (Lambert); of a wife as 'building up' over many years of marriage an 'entitlement to compensation' through
a share in income maintenance (SRJ v DWJ (Financial Provision))28, are imported as judicial views on fairness
and are not found in the statute. So despites protestations to the contrary, statutory language has to be filled in
with judicial notions of principles.

Not everyone is happy with these attempts to provide principles. In Dart, prior to White, it was suggested that it
was not for the Court of Appeal to 'set the cat amongst the pigeons' by departing from well-established
practice.29 However, amid the pragmatism of trying to find a solution to the ending of a particular marriage, a
search for principles has taken place from the inception of the Matrimonial Proceedings and Property Act 1971. It
is the evolution of these principles to a notion of equality that is interesting. McFarlane/Parlour falls into the 'big
money' category of cases. As has often been observed, in the majority of divorces the problem is to keep a roof
over everyone's head and to provide for children. 30 It is unlikely that practice in these cases will alter much.
Nevertheless, the enunciation of principles of fairness must be welcomed as messages about justice, however
contested.31

It is the content of fairness that poses problems. The legal profession attempts to use 'models that emphasise
entitlement based on past contribution or continuing compensation for a sacrificed career or for the loss of
benefits which the payee would have enjoyed but for the breakdown of the marriage'. 32 Discrimination between
the sexes has been disavowed by judiciary and academics alike, with a consequent valuing of work in caring for
family and home as a contribution to the welfare of the family equal to that of income earning. But certain issues
remain.

Taking a broad brush approach to contributions

What if one spouse earns most of the income and also takes care of house and children? This is the question
posed by Lipson and endorsed by Scully.33 Taking the presumption contained in recent cases that equal division
of assets will lead to fairness to task, Scully argues that formal equality 'is problematic in the sense that it
reflects and perpetuates the traditional gendered divisions of labour within marriage'. 34 This appears to be an
argument for more than an equal division of assets where one spouse undertakes roles of both carer and
breadwinner, on the implicit basis that where a woman does both her work at home is taken for granted. In
contrast to the judicial view of a general presumption that contributions are equal but incommensurable, Scully
favours the carrying out of a section 25 exercise. As a principled argument about fairness this may appeal, but
against that can be placed the distaste for detailed examination of the parties' life together, and the costs of
litigation.

Taking account of contributions

The wife's 'spadework' leading to increases in the husband's earnings was mentioned as a factor by the District
Court in McFarlane and not disputed in the Court of Appeal, as giving a claim on the increased income of the
husband.35 John Eekelaar sees a contradiction between clean break and the idea of spadework, pointing out, 'on
that basis, it would not matter whether or not the wife should seek to improve her earning capacity, or use her
share of the income to achieve self-sufficiency'. 36 His solution is to look retrospectively to capital assets acquired
during marriage and prospectively to clean break: the first is the 'earned share' reflecting 'the relative contributions
of the parties' to the acquisition of capital assets, bearing in mind that contribution as earner or carer are to be
treated as being of equal worth, and taking account of the duration of the marriage. The second is an order
against post-divorce income 'primarily to compensate for detriments undergone (if any) as a result of the
breakdown', expressed in the language of 'needs', but taking the receiving party on the way to self-sufficiency. 37 If
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the earned share is distinct from post-divorce transformation into self-sufficiency, then 'spadework' is not an
argument to increase the second element. From this it may be surmised that sacrifice marriage deserves
compensation, but that spadework does not merit additional rewards. Eekelaar's distinction has the merits of
clarity, and provides an academic categorisation of the purposes of periodical payments, 38 but it does not take
account of the sense of fairness displayed by the District Judge and by Bennett J ('thoroughly mean and unfair'),
nor of models from other jurisdictions where the early lean years of marriage can be balanced against the
enhanced income of later years

Needs or reasonable requirements?

In McFarlane/Parlour, Thorpe LJ attempted to dissuade the legal profession from using the term 'reasonable
requirements' as a term for the post-divorce basis for the allocation of periodical payments, on the grounds that
the statutory language is of 'needs'. 39 The ceiling of reasonable requirements has been broken through. This
becomes 'enhanced needs', rather than aliment or bare needs, but as Thorpe LJ interrogates himself, in big
money cases: 'how is the surplus above needs to be defined or assessed?'. 40 This is answered by asking why
Lord Nicholls of Birkenhead's 'demonstration in White of the discriminatory nature of the reasonable requirements
measure in capital awards (should) not apply equally to income awards?'.41 The trouble with this is that anti-
discrimination principles might be considered to have displaced practical questions of self-sufficiency. It becomes
clear that keeping contributory efforts in marriage away from the post-divorce income of the earner, and from the
'deserts' of the ex-spouse seeking self-sufficiency is difficult, if not impossible, particularly since 'fairness' is the
goal. Elizabeth Cooke makes a further point. After McFarlane/Parlour should the court not attempt to achieve a
clean break at the point of divorce by allocating more than half the marital capital assets to the claimant in lieu of
periodical payments?.42 Where there is sufficient capital this is one way of avoiding the difficult issues posed by
periodical payments.

Entitlement built up through the durational element

Some commentators argue that a minimum of 20 years of marriage (or possibly of relationship) is necessary
before the 'yardstick of equality' is applied to marital assets. This might be thought to be a gendered viewpoint,
given the restrictions on income earning suffered by those who take up a caring role in marriage. On that basis
Mrs Parlour's share of capital assets (roughly one-third) might be considered generous, although this was agreed
prior to trial. John Eekelaar argues that, given the judicial distaste for a minute examination of contributions
during the marriage, the length of the marriage should be central. 'Parties who share their lives together earn a
share of one another's assets relative to the length of time they have shared their lives'. 43 The durational element
might also affect post-divorce claims on income. A proposal in the USA is for a year's support to be provided for
every 2 years of marriage.44

Judicial activism

Doubts have been expressed about the effects of the latitude given to the courts by Part II of the Matrimonial
Causes Act 1973. 'The legitimate role of the courts in formulating social policy by means of interpretation of
existing statutory provisions' may be questioned.45 Stephen Cretney writes of 'the dangers that the lack of
obvious democratic legitimacy inherent in judicial legislation may provoke strongly hostile reactions, possibly
putting the respect essential for the administration of justice into question'.46 But does the attempt to be fair
undermine the legitimacy of the courts? To say it does presupposes that that statutory guidance has been
ignored. Claiming that recent decisions in the Court of Appeal and House of Lords introduce a regime of deferred
community of property on marriage into English law, Cretney sees this as 'essentially a matter of social policy to
be remitted to the legislature', 47 but as remediable at the hands of Parliament. Allowing the parties to a marriage
to stipulate their own views as to the purposes of periodical payments on divorce through pre-nuptial contracts is
his solution.48 This may be the answer for big money cases, but as the evidence from other jurisdictions where
such contracts are enforced shows, contests over periodical payments continue.

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Among commentators on the line of cases from White to McFarlane there is a consensus on the failure of the
legislature to act on equality or fairness, despite the words of the document Supporting Families.49 The
government's proposal that a presumption of equal division in the absence of special circumstances, as exists in
Scotland, be introduced has not been acted upon. Some academic commentators believe that this presumption
has been introduced, not through legislation, but by the Court of Appeal's decision in Lambert. Rebecca Bailey-
Harris questions 'the legitimate role of the courts in formulating social policy by means of interpretation of existing
statutory provision.'50 Whatever the views of judicial creativity, the reality is that the law is evolving. But is this
something new?

Given the breadth of section 25 this is hardly the first example of activism. The words of the statute on their own
are not enough. Lord Denning's one-third rule in Wachtel,51 admittedly drawn from previous practice, is an
example of activism. Eekelaar gives examples of the early approaches to section 25 such as the interpretation of
conduct, 'the so-called "two-thirds" rule', the principle keeping the parties in the standard of living to which they
had become accustomed, the preference for maintaining a home for the children, to which he adds the yardstick
of equality proclaimed in White.52 Not only has judicial activism been a feature of financial allocation on divorce
since the Matrimonial Proceedings and Property Act 1971, but from the beginnings of the divorce jurisdiction in
1857, 'statute has deliberately given the courts a wide discretion to deal with financial matters'. 53 And even where
principles are laid down, as in White, Lambert and McFarlane, we find:

'Betw een principle and outcome... there is sometimes a substantial margin of appreciation - in places w ide enough to
enable the judge to elect betw een outcomes. In such cases... it is not necessarily healthy to pretend that the
conclusion has been inexorably determined by prior principle.'54

Kate Malleson in The New Judiciary argues that the 'process of judicialisation whereby the courts have edged
their way into the political arena, is an experience common to all liberal democracies to a greater or lesser
extent'. 55 As early as 1972, Lord Reid qualified as 'fairy tales' the suggestion that judges do not make law. 56
Although consensus among the higher judiciary as to the extent of their law-making function is lacking, most
agree that choice is exercised at the boundaries. Where issues are so controversial that Parliament is unlikely to
tackle them, where there are gaps or ambiguities in legislation, where choices between conflicting values occur,
and where an assessment is made of the consequences likely to flow from alternative decisions, these are areas
of policy-making decisions.

Internationalisation and the experiences of interpreting human rights documents are changing the role of the
judiciary. A spirit of adventure and openness has entered the higher courts; the distinction made by Lord Devlin
between judicial activism and dynamism holds good. 'The former described the process whereby judges develop
the law in line with the changing social consensus - a judicial function which Devlin considered to be quite
legitimate. By contrast, dynamism arose when judges pushed the boundaries of public opinion by giving: "a touch
of the whip to hasten laggards"'.57

The trouble with validating the efforts of the judiciary to be fair is that these depend on individual values. Since the
sense of fairness in the 2000s is discernibly different from that of the 1970s, it may change again. Judicial
activism is not so much to be criticised as a usurpation of the legislative function, as dependent on the sense of
fairness of a small college of the legal elite.

So will academic categorisations help?

As argued so far, judicial activism enters into the space left open by the language of section 25 of the
Matrimonial Causes Act 1973 and by Parliamentary silence. However judicial attempts at fairness have been
criticised as internally inconsistent, with movements, for example, between ideas of sacrifice marriage

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(McFarlane) and of contribution beyond the norm (Parlour). So, can academic categorisations help, despite the
variety of arguments and opinions documented above? The answer seems to be that models of justice in divorce,
whether phrased in terms of earned share, compensation, sacrifice of investment in personal human capital,
enhanced income due to spadework, contributions over and above the norm, loss of benefits, or analogised to
commercial partnerships, aid understanding. However, if one is preferred to the exclusion of others, fairness may
not be achieved. The courts may be wise to avoid committing themselves to one model, or even a combination of
models. Nevertheless human capital theory as explicated by academics can be identified as underlying attempts
at fairness.

Human capital theory posits that humans can make educational investments in themselves and in their children.
The wealth produced in return is the investor's expected future earnings. Lying behind human capital theory is a
notion of the individual as having capital in the self. If this theory is applied then marriage is presented as two
property-owners coming together, two independent agents, owning human capital in themselves, voluntarily
agreeing on a relationship of joint economic endeavour. If the earning power of one is reduced as a result of
marriage and childrearing, then property rhetoric may enter into arguments about division of assets on divorce.
The conception of marriage assumed is of an economic partnership with a strategy to maximise household
income. Milton Regan sees two approaches as a consequence of this conception. The first argues 'that an ex-
spouse is entitled to the future financial gain that she expected to enjoy as a result of her efforts' in marriage.
This appears to be based on an assumption that marriage involves a joint investment, including the earning or
caring capacities of the other spouse. 'Loss of benefits' is the term often used to cover this. The second
maintains that an ex-spouse 'is entitled to compensation for her direct contributions and for the diminution in her
own earning power that she suffered for the sake of enhancing her spouse's'. 58 This suggests that compensation
is owed for the personal sacrifice of investment in self. This covers a decrease in personal human capital. In both
approaches market metaphors are called upon to construct a model of the non-earner's activities.

Regan argues that, as marriage is no longer for life, but rather for the fulfilment of personal happiness, support
after divorce must rest on 'fair economic exchange' rather than on the fact of marriage. Clean break is the
outcome of the search for happiness in marriage, or divorce. However, there is no evidence to suggest that
individuals enter marriage with divorce in view. Investment in the marriage as a joint endeavour, rather than in
oneself as separate, characterises intentions at the outset. The doctrine of unjust enrichment and 'a more general
duty of economic justice that all individuals have towards one another',59 are the foundations for post-divorce
support, according to Regan. But this argument does not depend on marriage as such and may equally well be
applied to partners of various kinds where one takes on a less economically active role in order to free the other
to earn. Nevertheless, in English law, the fact of having been married is what gives rise to the court's jurisdiction.
If Mrs Parlour had continued in her relationship as a partnership rather a marriage, her claim to a share of assets
after splitting up would have been much more difficult to establish. Consistency is hard to find. As Regan notes
there are problems with an over-reliance on property rhetoric. Where the images of persons as self-investors are
accepted, the nuances of a shared life which starts out with hopes for the future and joint plans, not to mention
love, are lost. Economic justice is an important value. At the same time the impoverished images we have of
intimate relationships is evident.

Many other metaphors for marriage can be conjured up. It can be portrayed as a sacramental mystical union, as
a companionate relationship, as an arrangement between families for genetic immortality, as a duty. To Regan,
writing in the US context, marriage conceived as an economic partnership fails to capture the way in which a
companionate relationship becomes part of the spouses' identities, with a communal economy, mutual care,
shared experiences, a special relationship. On divorce justice must reflect these commitments, and presentation
in terms of charity by the earner to a dependent fails to reflect the nature of the relationship. Precise accounting
is inconsistent with the spirit of marriage. And the post-divorce financial arrangement, for example in clean break
or spousal support, should reflect the transition that takes place.

Turning to the USA for help in defining the purposes of periodical payments does not simplify the academic
cause. A potential source of guidance offered by counsel in McFarlane, the New York case of O'Brien,60 where
the husband's excess income over average earnings was capitalised for award to the wife, was rejected by
Thorpe LJ. But human capital theorists offer a variety of arguments, not consistent with one another. The claimant
spouse may be characterised as an investor either in the marriage or in the other spouse's earning capacity; or
as having an interest in a commercial partnership which the other spouse buys out; or as having a separate
property in her own human capital which has decreased through occupation in the home, which is a debt on
marital assets; or as entitled to reimbursement for the diminution of her human capital, with her compensation to
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be determined by the difference between her actual earning capacity and what she might have earned if she had
remained single. 61 Marital assets can be defined as including the future earning capacity of both spouses. These
arguments are based on assumptions about each individual, untouched by love, acting as rational economic
man.

If we look to the American Law Institute's Family Dissolution Principles, 62 drafted by academics, we find that the
language of post-divorce need has been transformed into compensatory payments on a principle of loss.
Compensation for the following losses is available: loss of living standard, loss of earning capacity due to caring
for children or other family members, loss through failure to realise investment in the other spouse's earning
capacity, and, in the case of short marriage, disproportionate disparity in the ability of the spouses to recover
their pre-marital living standard. An arithmetical formula is applied according to the duration of the marriage, and
spousal support orders may be indefinite where the claimant is over 50 years. 63 The likelihood abolition of
discretion in English law by legislation containing similar principles may be doubted. Experiences of the Child
Support Act 1995 suggest otherwise. However, legal advisers would have a backdrop against which to advise
clients and to negotiate a divorce settlement.

Conclusion

Lord Justice Thorpe is unwilling to flirt with or embrace academic categorisations of the defining purposes of
periodical payments. If he should change his mind there are many to choose from. As we have seen consensus
amongst academics is lacking. Sticking with the statutory language is, on the surface, the right way forward. The
broad discretion conferred by section 25 is being cut with the scissors of judicial notions of fairness. We may
have moved on from the 1970s in terms of gender justice, but the old problems of palm tree justice, and principles
v pragmatism remain. This is hardly surprising, given that the form of section 25 has been little altered. Those
who wish for precision and clarity may be dismayed, but one important change has occurred. A message about
the nature of marriage as a sharing relationship and a partnership of equals is contained in judicial notions of
fairness.

Economic arguments may provide principles to justify a transfer of assets or income from one ex-spouse to the
other. Paradoxically it is the increased participation of women in the labour market that seems to have led to
valuing of work done in the home. Messages may be understood in different ways according to those who receive
them. Some commentators speculate that judicial recognition of the traditional role of married women in the
home as equal to income earning may be regarded by other women as demeaning dependence. Others may
regard marriage as a financial partnership, a conception which challenges the devaluation of household work
Some see gender stereotypes as having been reinforced. As yet there is no evidence that the judicial sense of
fairness stops at gender, and is not applicable to roles undertaken by either partner in marriage.64 If a couple
agree on a division of roles within the family, it seems likely that the courts will consider it fair that the agreement
should be noted. The most positive message is that to the children of a broken-down marriage. Their parents are
equal. Power in marriage is more likely to be shared as a result.

1 McFarlane v McFarlane; Parlour v Parlour [2004] EWCA Civ 872, [2004] 2 FLR 893, at [106].

2 Ibid.

3 White v White [2001] 1 AC 596, at [13](5).

4 McFarlane v McFarlane; Parlour v Parlour [2004] EWCA Civ 872, [2004] 2 FLR 893, at [135].

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5 J. Eekelaar, 'Shared Income After Divorce: A Step Too Far?' (2005) 121 LQR 1, at p 4.

6 De Lasala v de Lasala [1980] AC 546.

7 McFarlane v McFarlane; Parlour v Parlour [2004] EWCA Civ 872, [2004] 2 FLR 893, at [107].

8 Ibid, at para [116].

9 J v J (Ancillary Relief: Periodical Payments) [2004] EWHC 53 (Fam), [2004] 1 FCR 709, at [58]-[62].

10 Family Proceedings Rules 1991 (SI 1991/1247).

11 See n 5 and n 6, above.

12 The term continues to be used despite the insistence of Thorpe LJ that the statute makes reference only to needs.

13 McFarlane v McFarlane; Parlour v Parlour [2004] EWCA Civ 872, [2004] 2 FLR 893, at [4].

14 See further, E. Cooke, 'In Practice - Playing Parlour Games: Income Provision After Divorce' [2004] Fam Law 906.

15 McFarlane v McFarlane; Parlour v Parlour [2004] EWCA Civ 872, [2004] 2 FLR 893, at [66] and [114]. At para [53] Thorpe
LJ states that the amendments to the Matrimonial Causes Act 1973 that introduced s 25A and s 31 (7A)-7(F) have the effect
first, of imposing a duty on the court to attempt a clean break, and secondly, 'to empow er the court to compensate the payee
for the discharge of the periodical payments order w ith additional capital'.

16 Ibid, at para [66]: 'The payee must invest the surplus sensibly, or risk that her failure so to do might count against her on
an application for discharge under s 37 (7A) and (7B). Given the mutuality of the obligation, the opportunity and responsibility to
invest should ... be shared' per Thorpe LJ.

17 Law Commission Report No 112, The Financial Consequences of Divorce (1981).

18 J v J (Ancillary Relief: Periodical Payments) [2004] EWHC 53 (Fam), [2004] 1 FCR 709, at [105].

19 McFarlane v McFarlane; Parlour v Parlour [2004] EWCA Civ 872, [2004] 2 FLR 893, at [30].

20 Some commentators express compensation in terms of detriment suffered due to the ending of the marriage, and as a
means to establishing self-sufficiency after divorce.

21 Cowan v Cowan (2001) EWCA Civ 679, [2001] 2 FLR 192.

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22 Lambert v Lambert [2002] EWCA Civ 1685, [2003] 1 FLR 139.

23 J v J (Ancillary Relief: Periodical Payments) [2004] EWHC 53 (Fam), [2004] 1 FCR 709, at [31].

24 Ibid, at para [105].

25 Lambert v Lambert [2002] EWCA Civ 1685, [2003] 1 FLR 139.

26 R. Bailey-Harris, 'Case Commentary Lambert v Lambert - Tow ards the Recognition of Marriage as a Partnership of Equals'
[2003] CFLQ 417.

27 White v White [2001] 1 AC 596.

28 [1999] 2 FLR 176.

29 Dart v Dart [1996] 2 FLR 286, at 305, per Butler-Sloss LJ.

30 E. Cooke, 'A new yardstick for the marriage partnership' [2001] CFLQ 81.

31 Of course, the message may be understood by the rich as 'don't get married', advice alleged to have been given by a
leading family law solicitor to his male clients. But it may also be read by the children of the marriage as examples of gender
equality.

32 McFarlane v McFarlane; Parlour v Parlour [2004] EWCA Civ 872, [2004] 2 FLR 893, at [49] (Thorpe LJ).

33 A. Scully, 'Parra v Parra - Big money cases, judicial discretion and equality of division' [2003] CFLQ 205, at p 214, citing J.
Lipson (2002) 16 (47) The Lawyer 17.

34 Ibid, at p 212.

35 McFarlane v McFarlane; Parlour v Parlour [2004] EWCA Civ 872, [2004] 2 FLR 893, at [18] (Thorpe LJ). The district court
judge said: 'the w ife's contributions enabled the husband to create a w orking environment w hich has produced greater
rew ards, in respect of w hich she should have her fair share'.

36 J. Eekelaar, 'Shared Income After Divorce: A Step Too Far?' (2005) 121 LQR 1, at p 4. Perhaps a reference to retail
therapy might have been more appropriate. It is interesting that the argument is couched in terms of property, w ith w ords such
as 'ow ner' being used.

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37 J. Eekelaar, 'Shared Income After Divorce: A Step Too Far?' (2005) 121 LQR 1, at pp 1 and 2.

38 What if the payee goes to the races w ith his earned share, or to Gucci and Versace? Will this affect judicial attitudes to
claims on post-divorce income of the payer?

39 McFarlane v McFarlane; Parlour v Parlour [2004] EWCA Civ 872, [2004] 2 FLR 893, at [98] and [102]. But see the
concurring judgment of Latham LJ w ho continues to talk of reasonable requirements.

40 Ibid, at para [102].

41 Ibid, at para [104].

42 E. Cooke, 'In Practice - Playing Parlour Games: Income Provision After Divorce' [2004] Fam Law 906.

43 J. Eekelaar, 'Asset Distribution On Divorce' (2001) 117 LQR 552, at p556. Section 25(2)(d) makes this a factor to w hich
the court must have particular regard.

44 M. Regan, Alone Together (Oxford University Press, 1999), at 192, citing J.B. Singer, 'Divorce Reform and Gender Justice'
(1989) 67 NCLRev 1103, at pp 117-118.

45 R. Bailey-Harris, 'Case Commentary Lambert v Lambert - Tow ards the Recognition of Marriage as a Partnership of Equals'
[2003] CFLQ 417.

46 S. Cretney ,'Community of Property Imposed by Judicial Decision' (2003) 119 LQR 349, at 352.

47 Ibid. But see S. Cretney, 'The family and the law - status or contract' [2003] CFLQ 403 w here 'the practical reality' that the
legislative timetable is overcrow ded, is accepted as leading to inactivity unless a crisis arises.

48 Ibid, at pp 413-414.

49 Supporting Families, A Consultation Document (Home Office,1998), at pp 37-38.

50 R. Bailey-Harris, 'Case Commentary Lambert v Lambert - Tow ards the Recognition of Marriage as a Partnership of Equals'
[2003] CFLQ 417.

51 Wachtel v Wachtel [1973] Fam 72.

52 J. Eekelaar, 'Shared Income After Divorce: A Step Too Far?' (2005) 121 LQR 1.

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53 S. Cretney, 'The family and the law - status or contract' [2003] CFLQ 403, at p 416.

54 J. Sedley, 'Autonomy and the Rule of Law ' in R. Raw lings (ed), Law, Society and Economy, (Clarendon Press, Oxford,
1997), at p 318.

55 K. Malleson, The New Judiciary (Ashgate, 1999), at p 7.

56 Lord Reid, 'The Judge As Law Maker' (1972) 12 SPTL Journal 22.

57 K. Malleson, The New Judiciary (Ashgate, 1999), at p 15.

58 M. Regan, Alone Together (Oxford University Press, 1999).

59 Ibid, at 141.

60 (1985) 66 NY 2d 576. During the marriage, w hile the husband trained as a medical student, the w ife largely supported the
couple and sacrificed her ow n opportunities to train as a teacher. The husband w as required to take out life insurance to
protect his former w ife from his untimely death, leading to the loss of 11 payments totalling US$188,000. The life insurance
aspect answ ers one of Thorpe LJ's objections to this approach. The case can be interpreted as combining the notion of
sacrifice w ith loss of future benefits from the increased earning capacity of the husband. The w ife had invested in the
husband's future earning capacity rather than in her ow n.

61 M. Regan, Alone Together (Oxford University Press, 1999), Ch 7.

62 American Law Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations (2002).

63 For a number of other proposals in the USA see, M. Gordon, 'Spousal Support Guidelines and the American Experience:
Moving Beyond Discretion' (2002) 19 Canadian Journal of Family Law 270.

64 Foster v Foster [2003] EWCA Civ 565, [2003] 2 FLR 299.

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