‘Fairness, like beauty, lies in the eye of the beholder’ – 25 years on from White v White

The full article has been reproduced below with kind permission.

It is 25 years since the seminal decision in the House of Lords [1] in the case of White v White [2000] UKHL 54, [2000] 2 FLR 981 that led to a fundamental change in the way financial resources are divided on divorce.

This article looks at the case, how much has moved on since then, and what might come next.

When Pamela White came to seek legal advice about the likely financial outcome in her divorce from Martin White, the world was a different place. Women were still emerging from centuries of male domination and fighting for gender equality. Traditional gender roles – the male breadwinner and the female homemaker – were changing, but slowly. In terms of financial provision on divorce, the law expected a husband to provide for his wife’s reasonable requirements. This approach usually left the majority of the wealth with the husband in non-needs-based cases.

The statute law relating to financial remedies was (and still is) the Matrimonial Causes Act 1973, s 25, which sets out the criteria for judges to take into account in considering how to divide financial resources on divorce. In practice, there was an unofficial ‘one-third’ rule, ie a wife would likely receive a third of the assets and his income, as appropriate. The general view was that asking a husband to pay more than a third of his income would disincentivise him from working at all.

Mrs White was dissatisfied with the suggestion that her financial settlement should be restricted to her reasonable needs.

Her long marriage to Mr White of 33 years had been a true partnership of equals. They had raised three children together, had started out with very little and, through their own endeavours, had acquired two farms and ran a successful dairy farming partnership together. Mrs White had not only had the primary role of looking after the home and bringing up the children, but had also played a very active role in the business partnership, which included milking the cows and paying the farm workers.

At the time the case was first heard in the Bristol District Registry of the High Court, the parties had net assets of approximately £4.6m. At first instance, Holman J awarded Mrs White £980,000 to meet her reasonable (housing and income) requirements, roughly a fifth of the marital assets. Needless to say, in circumstances where Mr and Mrs White had contributed equally to their marital partnership, Mrs White was unhappy with this decision and appealed it on the basis that it was both discriminatory, unfair and did not properly recognise her full contribution to the marriage. Why should she only receive 20% and Mr White 80% of what they had built up over their marriage? Why should she not be entitled to the same as Mr White?

The Court of Appeal found that Holman J had decided the case incorrectly and that business principles should determine the amount of Mrs White’s financial settlement. After doing some rough and ready partnership accounts, the appeal court increased Mrs White’s award to £1.5m (roughly 40% of the assets after the deduction of legal costs.)

Unsurprisingly, Mrs White still felt that this award was discriminatory, unfair and did not properly recognise her full contribution to the marriage. Why should she only receive 40% and Mr White 60% of what they had built up over their marriage? Why should she not be entitled to the same as Mr White and why should business principles determine the outcome?

Mrs White instructed us to appeal to the House of Lords – which is now the Supreme Court- and the highest court in the land. She wanted a fair outcome, which she viewed as 50% or equality. Mr White also appealed the Court of Appeal’s decision on the basis that the award exceeded Mrs White’s reasonable needs and he wanted her settlement to go back to 20%. Much was at stake in the House of Lords. What should her settlement be: 50% (equality), 40% (Court of Appeal award), 20% (High Court award) or another percentage/amount? And what should the law be underpinning her settlement be, and what should be the law going forward for all financial settlements on divorce?

‘In seeking to achieve a fair outcome, there is no place for discrimination between husband and wife and their respective roles.’

Whilst the House of Lords recognised the force of the equality arguments put forward on behalf of Mrs White, which is now reflected in law, it did not apply this to Mrs White’s case and upheld the Court of Appeal’s division of 40% to Mrs White and 60% to Mr White – it did not divide the assets equally and dismissed both appeals.

The House of Lords, for the first time, said that ‘equality should be departed from only if, and to the extent that, there is a good reason for doing so’. Lord Nicholls went on to say, ‘there should be no bias in favour of the money-earner and against the home maker and the child carer’. The court recognised that the division of assets on divorce had failed to keep pace with changes in society and Lord Cooke believed the division in White would ‘do much to enable English matrimonial property law to meet the requirements of contemporary society’.

Why didn’t Mrs White get 50%?

It appears strange, at first blush, that this case is feted as achieving equality for women in terms of financial outcomes on divorce, given that Mrs White only received 40% of the assets. This was to reflect the fact that Mr White had received a modest inheritance shortly before the parties separated and that his father had loaned the couple the money to purchase one of the farms at the outset. Indeed, the House of Lords questioned whether this justified a difference of 20% in the overall shares of the parties but then did nothing about it.

The ultimate irony of the case is that whilst Mrs White won the equality arguments and changed the law, she was robbed by the House of Lords itself of the just fruits of her victory.

There were two farms and she wanted one of them. She ended up with neither and, instead, a lump sum which (unsurprisingly) she then used to purchase a farm! For years afterwards, Mrs White found it hard to accept that the House of Lords did not apply their judgment in her case to the actual facts of her case, and did not give her equality.

Nevertheless, the decision of the House of Lords turned English matrimonial finance law on its head and meant that the starting point would be equality and that any departure from an equal division of the fruits of the marital partnership would need to be justified and non-discriminatory.

What has happened in the years since White v White?

Financial remedies law is still governed by the Matrimonial Causes Act 1973. However, the Courts have continued since White to interpret the criteria in the Matrimonial Causes Act in a number of important decisions: The conjoined appeals in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 1 FLR 1186 were the next step in the House of Lords clarifying the principles that would apply in financial remedy claims. Clarification was needed as White concerned a long marriage and the assets were sufficient to meet the parties’ needs without the need for there to be any ongoing financial support between them. The case of Miller concerned a short marriage, and the case of McFarlane concerned a case where the husband had a successful career, in agreement with him to care for their family. The House of Lords evoked three general principles that would guide the court:

1. Needs – the needs (generously interpreted) that have been generated by the relationship between the parties;
2. Compensation – for a disadvantage to one party generated as a consequence of the relationship (as above – giving up a promising career to care for the family);

• Sharing – that both parties should share in the fruits of the partnership as equals.

The court noted that there remained scope for one party to acquire separate property (non-matrimonial assets) which would not automatically be subject to the sharing principle (for example, inherited wealth).

Over the years since White, case law has developed these principles. Very recently, the Supreme Court’s Judgment in the case of Standish v Standish [2025] UKSC 26, [2025] 2 FLR 489 has clarified that the sharing principle should only be applied to matrimonial property and that non-matrimonial property can become matrimonialised. This refers to a process by which property that starts out as non-matrimonial can become matrimonial because of the way the parties have dealt with it during the marriage.

The future

At the heart of English matrimonial law remains the principles set out in the Matrimonial Causes Act 1973, more than 50 years ago. Whilst change has been achieved, and allowed the law to keep pace with changes in society via case law, there can be little doubt that law reform is desirable to clarify and commit the changes to the statute book. As matters stand, judges have considerable discretion to interpret the law, which can lead to different judges reaching vastly different conclusions on the same set of facts.

Changes in society as a whole also militate towards changes being brought about to update the law. Men and women now share the bread-winning and caring roles more than ever before. Back in 1973 (when the Matrimonial Causes Act came into force) 54.6% of women aged 16 – 64 were in employment. By the time of White in 2000, this figure had increased to 65.9% and in 2024 it stood at 71.9%. People now marry later by which time both men and women may have built up assets that they wish to protect by signing a pre-nuptial agreement.

Financial autonomy is important to many individuals.

Individuals such as Baroness Deech have argued that the current law is patronising and paternalistic, assuming that women are incapable of standing on their own two feet. She advocates for a move to a system similar to that in Scotland where there is a cap on the period of time that maintenance might be payable by one party to the other. Baroness Shackleton has also called for greater certainty, suggesting that there should be an assumption of equal division of marital assets, time-limited maintenance payments and legally binding pre-nuptial agreements.

It is important to note that the vast majority of financial settlements following divorce are never adjudicated upon by a court. Many will take advantage of Non-Court Dispute Resolution, but yet more still will resolve matters themselves. They do so by having an eye to what the court would be likely to order in their particular circumstances. However, the wide discretion in the law can make this difficult to reach a settlement. In high net worth cases, where the gap between them may be significant, it is common for parties to run up substantial legal costs in an effort to try to reach a consensus. At the other end of the spectrum, approximately 26% of parties in financial remedy proceedings are litigants in person who have few assets to argue about and have to try to understand and navigate this highly discretionary system.

The Law Commission has recently undertaken a scoping report on financial remedies. It has identified four possible models for reform:

1. Codification – bringing the existing case law into statutory form thereby updating the Matrimonial Causes Act but without making any radical changes.
2. Codification + – As above, but incorporating particular reforms in relation to prenuptial agreements, maintenance and property division.
3. Guided discretion – Setting out guidelines for judges to apply to achieve a greater degree of uniformity whilst still maintaining some discretion.
4. Default regime – Implementing fixed rules on how assets are to be divided.

Conclusion

Whilst the arguments for law reform are many, the case of White demonstrates how developing the law through judge-made decisions permits flexibility and allows the law to adapt and keep pace with changes in social expectations. Families are not ‘one size fits all’ and it is unrealistic to expect a formulaic approach to be able to provide for all eventualities. The author believes that our present system – with some updating to reflect how the law has developed to date – offers the best opportunity to dispense fairness by allowing each case to be determined on its own particular facts. Whilst this system may require greater scrutiny than the enforcement of a more formulaic approach, it is more likely to result in a fair outcome and one that both parties can live with.

[1] Made up of Lord Nicholls, Lord Hoffman, Lord Cooke, Lord Hope and Lord Hutton

‘Fairness, like beauty, lies in the eye of the beholder’ – Lord Nicholls, White v White