MILLER v MILLER; McFARLANE v McFARLANE [2004] UKHL 24

Fairness Remains an Elusive Concept – Financial Provision on DivorceThe House of Lords in Miller and McFarlane sought to articulate principles which would enable the courts to exercise their discretionary powers under Part II of the Matrimonial Causes Act (MCA) 1973 in a consistent manner and provide a fair outcome for divorcing couples.The decision was greeted as a tour de force by some media sources, and as a gold diggers’ charter by others, for wives who abandoned, or were abandoned in, short-lived marriages. It has been variously described as just; groundbreaking; historic; principled; a landmark decision; a triumph for women; a disaster for wealthy men; and as a trigger for reform of the law relating to pre-nuptial agreements. A close analysis of the decision, however, suggests that some of these comments may be reflections of wishful hopes rather than reasoned responses to the actual reality of the judgment. Although it must be acknowledged that the House, on the basis of its construction of fairness, did take a significantly new approach to short marriages and to the purpose of periodical payments. The law relating to ancillary relief on divorce remains remarkably unchanged and problematic.