Contributions to short, childless marriage

Foster v Foster (CA TLR 2 May)

There are no special principles applicable to assessing contributions made by parties to a short, childless marriage where both were working. The only universal rule was to apply the criteria from s25(2) of the Matrimonial Causes Act 1973 and to arrive at a fair result that avoided discrimination. The Court rejected the contention that White v White [2001] 1 AC 596 and later decisions of the Court of Appeal only concerned the problem of evaluating the very different contribution of breadwinner and homemaker over a long marriage where there had been children to bring up. That was a surprising proposition. The 1973 Act was designed to move away from the application of strict property law principles, with their dependence upon evaluating contributions in money or money’s worth, towards the recognition of marriage as a relationship to which each spouse contributed what they could in their different ways. There could be no justification for treating differences in income any differently than differences between bread-winning and home-making. If both parties went out to work and pooled their income or spent a comparable proportion for the benefit of the family, it would be a surprising proposition indeed if they were not to be regarded as having made an equal contribution to the family home or other family assets. Reasons recognised in the authorities for departing from equality included the parties’ respective housing needs and the needs of children and whether any of the assets in question had been brought into the marriage from outside. None of those considerations applied here. Section 25(2)(f) made it clear that the contributions were not limited to financial contributions, although plainly they included such contributions. When the court was looking at such contributions, it was not limited to consideration merely as the amounts contributed, but it could take into account such factors as the part each party played in acquiring and realising assets in the name of one or other of the parties and the fact that each party contributed what he or she could from his or her financial resources.