How Women Changed Family Law

At the start of the millennium, in the year 2000, the House of Lords (now the Supreme Court) decided White v White, a landmark case which changed the lives of divorced women forever. This applied not only to England and Wales but across the World in the many countries which pay some regard to English law.

What was so ground-breaking about White was the decision that the contributions of breadwinner and homemaker should be treated as equal for the purposes of dividing matrimonial assets. The outcome has been to give women control over their share of marital wealth on divorce, which is just one of the factors in the growing trend of wealth passing into the hands of women – something we will see continue over the coming decades as wealth passes from one generation to the next.

Since the decision in White, the Family Court has sought to move and change with the times, utilising the wide discretion available to it to do so, and the following are some of the important changes impacting women:

Prenuptial Agreements 

It was Karin Radmacher, the significantly wealthier financial party to divorce proceedings, who brought the case of Radmacher v Granatino to the Supreme Court in 2010, changing the law on prenuptial agreements for everyone. Prior to Radmacher v Granatino, such agreements were occasionally considered as part of all the circumstances of the case but there was rarely any real regard paid to them. Radmacher effectively reversed the position so that prenuptial agreements will now be upheld in the Family Courts provided both parties understood the implications of the agreement when they entered into it, and it is reasonably fair, both at the time of signing and on divorce.

International Family Law 

An unintended consequence of the decision in White, and all that has followed to equalise the position of women under English Family law, has been the creation of an international reputation for London as “the divorce capital of the World”. So-called forum shopping has become a feature of English Family Division cases in jurisdiction disputes for the divorce itself, to secure forum for related financial matters, and in applications for financial provision after divorce proceedings overseas under Part III of the Matrimonial and Family Proceedings Act 1984 (“Part III”).

The leading Part III case of Agbaje v Agbaje was heard by the Supreme Court in 2010 when, after 38 years of marriage, Mrs Agbaje was able to secure a share of her English home utilising Part III, following divorce proceedings in Nigeria which had made inadequate provision for her.

Relationship Generated Disadvantage

Seventeen years ago, compensation claims arising from relationship generated disadvantage were first considered by the House of Lords in McFarlane v McFarlane in 2006. Mrs McFarlane achieved an award from her husband’s future income designed to compensate her for her own loss of future income. She had given up her career as a City lawyer to look after the home and children whilst her husband had gone on to a stellar City career. Such claims remain possible in exceptional cases of this type.

Conclusion

Of course, there is still work to be done and none of these developments in Family Law would have been possible without the likes of Pamela White, Karin Radmacher, Sikirat Abeni Agbaje and Julia McFarlane bringing their cases to Court, and often fighting all the way to the House of Lords/Supreme Court without giving up and settling for a lesser result. So, whilst it might be said that these cases demonstrate how financial provision on divorce has changed the lives of women over the last twenty years, what this is really about is how, during that time and with much effort and perseverance, women have changed Family Law forever.