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Home > Vol 20, No 2 (2014) > Russell

Family Law: Periodical payments beyond reasonable needs? Survey data

Penelope Russell [1] and Andrew Costello [2]

Citation: Russell P. & Costello A., "Family Law: Periodical payments beyond reasonable needs? Survey data", (2014) 20(2) Web JCLI.

Abstract

This article considers fairness within financial orders made on divorce or dissolution ('ancillary relief') in the context of the results of a survey of 2,400 respondents. It focuses on the quantification of periodical payments in cases where there is a considerable surplus of available income after meeting the parties' needs ('big money cases') and considers how that surplus income should be allocated between parties: whether it should be calculated on a reasonable needs basis or as entitlement to a share of income beyond reasonable needs. The implications for legislative reform are considered, particularly in the context of the recent review by the Law Commission of the determination of needs within ancillary relief claims. [3]

1.Introduction

1.1 Income sharing

This article focuses on the allocation of post-separation income, whether by an award to meet reasonable needs or a claim of entitlement to a share beyond needs. Income sharing provides periodical payments as a proportion or percentage of the payer's entire income regardless of source [4], rather than in relation to the recipient's needs. The level of periodical payments is fixed in percentage terms but not in amount. The fortunes of the payer and recipient are therefore tied together: as the payer earns more or less, the periodical payments increase or decrease proportionately.

It should be noted at the outset that income sharing does not necessitate an award of 50% of the payer's income; the share or percentage is at the court's discretion. However, the assumption made in this article, and indeed in the academic literature, is that income sharing would produce a level of periodical payments greater than the recipient's reasonable needs. Also income sharing is only feasible in those cases where there is a considerable surplus of available income and not in an everyday case where the court would be limited to meeting the parties' needs. [5]

1.2 Statutory background and judicial history

The court's power to make provision for a series of payments from one spouse to another ('periodical payments') is set out at s.23(1)(a) of the Matrimonial Causes Act 1973: 'On granting a decree of divorce … or any time thereafter, the court may make … an order that either party to the marriage shall make to the other such periodical payments, for such term, as may be specified in the order'.

The court is required to take into account a number of factors including contribution and duration of marriage ('section 25 factors'). [6] Each section 25 factor must be considered by the court but the weight to be applied is at the discretion of the judge. [7] It is noteworthy that the welfare of any child of the family is required at section 25(1) to be considered first but not to be of overriding importance. [8] The court is also obliged consider terminating the financial obligations of each party towards the other as soon as the court considers just and reasonable ('clean break principle'). [9]

Despite the above provisions, the statutory regime for the determination of the division of income on divorce lacks any overarching statement of principle. Parliament has not decreed that any consideration of the quantum of periodical payments should be limited by a quantification of expenditure and is silent as to the purpose of the periodical payments. The issue of quantum of periodical payments must thus be viewed against a backdrop of statutory discretion and 'judicial activism'. [10]

The freedom of extensive discretion has allowed the judiciary to create competing approaches from reasonable needs to sharing and compensation. Notwithstanding clear expressions of principle such as the avoidance of discrimination between husband and wife, each approach can be chosen to be applied to a case at the discretion of the court. The extent of the court's discretion has allowed uncertainty to flourish. It is difficult to discern a consistent application of approach between cases or between the capital and income aspects of each case.

In its recent review of ancillary relief, the Law Commission's Supplementary Consultation Paper bemoaned the lack of a coherent rationale within the law and expressed concerns about unpredictability causing a difficulty in reaching terms of settlement: 'We take the view that the current law, based as it is upon a mix of mutually inconsistent principles, is not a sustainable policy choice for the future'. [11]

2. Judicial approaches in detail

Historically, the English judiciary have always sought to place a limit on the quantum of periodical payments. This is apparent by their initial adoption of an approach whereby a wife was only entitled to an amount of maintenance that she reasonably required to maintain her pre-marriage standard of living even if the husband could afford to pay significantly more ('reasonable needs approach'). [12] This approach has been criticised within academic writings for operating gender-based discrimination in cases where means exceeded needs (as it restricted the wife to her reasonable needs whereas the husband was subject to no equivalent limitation); as Elizabeth Cooke wrote: 'the reasonable needs approach meant, in practice, that in wealthy cases women tended to walk away from divorce considerably less rich than men'. [13] It also resulted in the Duxbury paradox, [14] whereby a younger wife would receive a larger sum of capitalised periodical payments than an older wife, an award that would not reflect the latter's greater contribution to the marriage. Nevertheless, the reasonable needs approach remained accepted practice over a number of decades.

In 2000, the decision of the House of Lords in White v White [15] challenged the fairness of the reasonable needs approach, but only in respect of capital not income. It enabled the wife to receive 40% of the matrimonial capital. Although Lord Nicholls asserted that 'in seeking to achieve a fair outcome, there is no place for discrimination between husband and wife and their respective roles', [16] continuing later 'equality should be departed from only if, and to the extent that, there is good reason for doing so. The need to consider and articulate reasons for departing from equality would help the parties and the court to focus on the need to ensure the absence of discrimination'. [17] The judgement was silent as to income. As a consequence, the wife's award by way of a lump sum was on a clean break basis and she was expected to raise income from investing the capital whereas the husband was allowed to retain all of the income from the family farming business.

It was the subsequent case of Miller/McFarlane [18] that applied the notion of sharing to income but only for the purposes of meeting need or granting compensation to a spouse who has suffered ongoing disadvantage as a result of arrangements within the marriage. Of all the Law Lords, Baroness Hale was the most explicit about income sharing. She actually referred to the possibility of future income being shared as well as current assets and went on to explain: 'In general, it can be assumed that the marital partnership does not stay alive for the purpose of sharing future resources unless this is justified by need or compensation. The ultimate objective is to give each party an equal start on the road to independent living.' [19] Therefore, although expressed in the negative, she did allow for the option of income sharing beyond needs if justified by compensation. She also asserted: 'We do not yet have a system of community of property, whether full or deferred. Even modest legislative steps towards this have been strenuously resisted.' [20] This statement contradicted the argument that community of property principles would limit any sharing provision to capital.

In the case Mrs McFarlane was awarded ongoing periodical payments significantly in excess of her actual needs. (Her needs were quantified at £128,000 per year whereas the House of Lords affirmed the Court of Appeal's award of £250,000 per year.) Baroness Hale stated that: 'The wife is undoubtedly entitled to generous income provision for herself and for the sake of their children, including sums which will enable her to provide for her own old age and insure the husband's life. She is also entitled to a share in the very large surplus, on the principles both of sharing the fruits of the matrimonial partnership and of compensation for the comparable position which she might have been in had she not compromised her own career for the sake of them all.' [21] This paragraph is particularly interesting because Baroness Hale acknowledged a possible justification for income sharing beyond needs, in addition to that of compensation, namely sharing the fruits of the matrimonial partnership.

In contrast, Lord Nicholls was more circumspect about income sharing, stressing the unusual features of the case, [22] namely the limited capital and surplus of income in a long marriage with children where the wife had given up a lucrative career for the sake of the marriage. He also referred to the rationale of compensation, 'aimed at redressing any significant prospective economic disparity between the parties arising from the way they conducted their marriage'. [23] In addition, he referred to the sharing rationale but only in the context of capital not income. [24] He therefore appeared to deny the possibility of income sharing. In short, although revolutionary in stating that periodical payments need no longer be limited by reasonable needs, [25] the dicta of Lord Nicholls ignored the possibility of the sharing of income. Indeed he stressed the importance of finality upon the ending of the marriage, referring to the social desirability of a clean break and the self-evident undesirability of continuing ties [26] but stating that this can be overridden if compensation is needed.

Subsequent decisions in the lower courts have indicated a reluctance to embrace enhanced awards of periodical payments by way of compensation. Later in the same year as Miller/McFarlane, Coleridge J. made an obiter comment in the High Court in the case of RP v RP that compensation does not appear in the statute and that a compensation head of claim would be 'totally misconceived and likely to lead to double counting… It is a blind alley at the mouth of which a "no entry" sign should now be firmly planted'. [27]

The following year Baron J. in the High Court case of Lauder v Lauder acknowledged the wife's compensation claim but refused to quantify it separately. [28] Although she expressed her intention to 'give proper consideration to the recent guidance of the House of Lords in Miller v McFarlane' she based the award of periodical payments on a generous interpretation of reasonable needs.

This approach was again used in the High Court decision of CR v CR [29], where Bodey J. used reasonable needs generously interpreted) to quantify an award of periodical payments. He was critical of the rationale of compensation , stating: 'Concepts of need and sharing are relatively straightforward in the ancillary relief context; but that of compensation is inherently more difficult. For one thing, compensation usually considers only the position of the person who has suffered some detriment, regardless of the ability of the person to pay. That is the antithesis of the exercise of ancillary relief, which involves striking a fair balance in the context of a finite kitty.' [30] Like Baron J., he warned of the risk of double-counting. [31] In respect of the sharing of income, he expressed an award of reasonable needs to meet the yardstick of equality, taking into account the fact that 'in order to make those future earnings, the husband will have to continue to undertake stressful and demanding work into the future, unmatched by any ongoing contribution thereto by the wife'. [32]

Although the possible rationale of compensation was affirmed and refined by the Court of Appeal in 2007 in the case of Charman, [33] this was in respect of capital not income claims, Sir Mark Potter commenting: 'We appreciate that remarks of Baroness Hale in Miller , at [154], are also said to permit argument that a party's earning capacity is itself an asset to which the other has contributed and which might to some extent be subject to the sharing principle; this seems to us an area of complexity and potential confusion which in this case it is unnecessary for us to visit'. [34]

The following year he dealt an explicit blow to the rationale of compensation, when determining an application for a variation of periodical payments in the case of VB v JP. [35] The application was made by the wife on the basis that the husband's income had significantly increased since the making of the consent order. He summarised his understanding of the current position after Miller/McFarlane: 'In ordinary circumstances a wife has no right or expectation of continuing economic parity ("sharing") unless and to the extent that consideration of her needs, or compensation for relationship-generated disadvantage so require… Where it is necessary to provide ongoing periodical payments for the wife after the division of capital assets insufficient to cover her future maintenance needs, any element of compensation is best dealt with by a generous assessment of her continuing needs unrestricted by purely budgetary considerations.' [36] Despite stating that any award of compensation should exceed needs, he granted to the wife periodical payments representing a third of the husband's income, stating 'this seems to me to be an appropriate cross-check (if not a starting point)'. [37] This case has been described by Ashley Murray as 'strangling at birth' the rationale of compensation. [38]

The following year in the case of Hvorostovsky v Hvorostovsky, [39] the Court of Appeal made an award of enhanced periodical payments to a sum in excess of the wife's actual needs. It did not accept the wife's submissions that she had sacrificed her dancing career to follow her opera-singer husband. Instead, Thorpe L.J. characterised her position as being a contribution not a relationship-related disadvantage deserving compensation. [40] In granting her application for a variation of the periodical payments, he referred to the 'husband's greatly increased income' and indicated that as the single factor of greatest significance. [41] Again, reasonable needs were not a ceiling on the award but the rationale of compensation was eschewed.

In the more recent case of B v S, [42] Mostyn J. sitting in the High Court took the opportunity to comment on the 'controversy … whether the sharing principle applies to a claim for periodical payments'. [43] He was critical of a sharing principle that would apply to income, stating that 'it is problematic, because at the end of the day the only reason there is income after separation is because of work done after separation'. [44] He made a clear statement of principle: 'Save in the exceptional kind of case exemplified by McFarlane a periodical payments claim … should in my opinion be adjudged ..., generally speaking, by reference to the principle of need alone… To allow consideration of the concept of sharing to intrude in the assessment of a periodical payments award seems to me to be based on a doubtful principle and is replete with problems of quantification by any sure standard.' [45]

An analogous situation is that of bonus income. This was dealt with in the 2002 case of H v H [46] where there was sharing of post-separation income by the High Court. The wife was awarded reducing percentages of the husband's income of a third, a sixth and a twelfth. It was justified by a notion of the sharing of a marital asset: 'In my view, the principles of fairness, equality and non-discrimination require that the wife receives an additional award to reflect her contribution over the years of the marital partnership that has resulted in the husband's enhanced or greater earning capacity (and is a fruit or product of the marital partnership). [47] However, it was only respect of bonuses received by the husband in the first few years after the separation of the parties. Charles J. made it clear that: 'the lower income earner is not, and should not, be entitled to long term economic parity'. [48] This approach was recently overruled by the Court of Appeal in the case of Lawrence v Gallagher [49] as Thorpe L.J. expressed the view that the husband's bonuses were not a capital asset 'but part of the [husband's] income stream upon which he is taxed at top rate. I can see no principled basis upon which the respondent should be awarded 45% of that as though it were a present capital asset. I would delete this element of the judge's award entirely'. [50] So, in this case the sharing of the husband's post-separation bonuses was not permitted as they were deemed to be income, not capital. In another bonus case namely B v B, [51] Moylan J. in the High Court, although acknowledging that there may be cases where sharing is justified by needs or compensation, went on to state that he accepted the submission that 'absent needs and/or compensation, sharing ends at the end of the marital partnership'. [52]

3. Literature review

Income sharing is also controversial in the academic literature. Firstly, the compensation approach does not limit the potential liability of the payer, so it could operate as a disincentive to continue working. District Judge Brasse has set out a number of potential drawbacks including the fact that an obligation to give a share of their income might deter some high-flyers from marrying or might encourage some 'alimony slaves' [53] to take early retirement. Philip Moor and Valentine Le Grice have asked: 'What right has the court to force a man to work indefinitely in a very stressful and high-pressured environment so that he can pay maintenance to his ex-wife when her strict needs do not require it? Is there a Human Rights Act 1998 point here?' [54] They have commented that 'some consequential financial loss to wives might be a small price to pay for personal autonomy'. [55]

Another criticism of income sharing is that it contravenes the clean break principle. Although the requirements are not to impose a clean break but to consider doing so, [56] Elizabeth Cooke has expressed the concern that a share of post-separation income would be contrary to clean break principles: 'It would perpetuate dependency and, perhaps, animosity. It militates against the modern acceptance that marriage may well not be for life. It discourages a fresh start and may be particularly damaging to the position of women by discouraging financial independence.' [57] Sandra Davis has argued that 'the equal division principle created its own discriminatory effect; one that operates to the detriment of working wives in favour of the homemakers' [58] as the latter are obliged to work until retirement rather than be rewarded for not working. Lord Justice Thorpe has referred to the 'growing sense that the paternalistic approach was increasingly inappropriate in a world in which 50% of marriages ending in divorce have lasted for only nine years'. [59]

It must be acknowledged, however, that not all of the academic literature is supportive of the clean break principle. Ashley Murray has argued that an approach whereby the wife 'is not entitled, as of right, to the same standard of living as her former husband after divorce… will remain… both unfair and discriminatory'. [60] The cut off at separation has been criticised by Somaya Ouazzani for ignoring women's disproportionate financial struggles post-divorce [61] as even big money cases can have limited capital liquidity. The capital awarded to a wife might be insufficient to provide for her needs on a long term basis: 'The effect on women has been especially more pernicious as the rhetorical 'equality' culture has made gender discrimination harder to detect'. [62]

In Miller/McFarlane Baroness Hale sought to justify income sharing by saying that it was an award of compensation for economic disadvantage caused by sacrificing a promising career for the sake of the marriage. This link with compensation has arguably been unhelpful as the rationale of compensation is also controversial. Concerns have been expressed that it would necessitate enquiries into heads of claim including loss of future earnings and is a mathematical approach which could lead to unfairness to either party. Joanna Miles has pointed to the 'apparent neglect of the respondent's interests'. [63] For potential recipients too it can produce unfairness: the wife of a millionaire would get nothing on this basis if they had not given up a well-paid job before the marriage. On the other hand, Ira Ellman has argued that compensation can provide coherence: 'a systematic and certain set of rules'. [64] It also has the benefit that it does take into account 'whether or not the recipient made efforts to realise her own earning potential or indeed any other financial benefit she received'. [65]

Given the controversy surrounding income sharing, it is hoped that the results of a survey will provide some interesting data to inform the debate. Philip Moor and Valentine le Grice have written that '[they] very much doubt that an indefinite order for periodical payments in sums well in excess of strict need are in tune with the views of the population as a whole'. [66] Survey data may provide some indication of the views of the population.

4. Methodology

4.1 Recruitment of respondents

Just under 2,400 respondents were presented with a survey, setting out ten fictional scenarios. The survey was designed to be fully structured with tick-box answers. Each scenario was a variation on a theme and asked the respondent to select an option that was the most fair. In each scenario, a few facts were given about the marriage such as duration, number of children and age of the parties. It was stated that the parties had separated and asked what proportion of the husband's income the wife should receive. [67] Options were for the wife to receive (a) nothing (b) less than half, but enough to meet her needs (c) half (d) more than half and (e) all. The scenarios differed from each other in certain respects, such as the length of the marriage or the circumstances in which the income had been acquired including by way of inheritance. They were all designed so that they were unfettered by need or by compensation issues. It was decided to use fictional scenarios in the survey because they are more likely to reveal attitudinal differences than other forms of questionnaire design. [68]

The respondents were obtained by level 2 and 3 undergraduate law students at the Universities of Sheffield and Greenwich, as part of their assessment on their family law module. Approximately 240 students carried out the research project. They were given training in conducting survey research and were asked to recruit a minimum of 10 respondents each. They were each allocated a respondent target group, thereby ensuring that a full range of ages above adulthood was surveyed, producing a stratified sample dividable into the six main age groups.

The findings are derived from 2,394 questionnaires: 1800 of these are from the University of Sheffield and the balance from Greenwich University. The survey was conducted in the autumn of 2010 and spring of 2011.

4.2 Characteristics of the sample

Basic demographic information about the respondents was obtained such as gender, age, employment status and marital and parental status but excluding their name or any other identifying characteristics. The sample sizes were too small for analysis of religion or ethnicity.

In terms of the gender of the respondents (n=2225), 48.1% (n=1071) were male and 51.8% (n=1154) were female. Regarding age (n=2268), TABLE 1 shows that just over a third (n=820) were aged 18 to 24, reflecting the fact that the study was conducted by student researchers. However, other age groups are sufficiently reflected to enable statistical analysis, showing that the allocation of target groups did assist the stratification of the sample.

Table 1: Age of respondents (n=2268)

Age	Number	Percentage
18-24	820	36.1
25-34	507	22.3
35-44	220	9.7
45-54	403	17.7
55-64	207	9.1
65 and over	111	4.8

In terms of the employment status of the respondents (n=2243), TABLE 2 shows that just over a third (n=762) were students and 36% (n=803) were employed full-time, again reflecting the fact that the study was conducted by student researchers. The total number of responses actually exceeds the number of respondents as they were invited to tick more than one category if applicable. There was therefore some duplication of categories, involving those of part-time employment and student status.

Table 2: Employment status (n=2243)

Employment status	Number	Percentage
Unemployed	209	9.3
Employed part-time	287	12.7
Employed full-time	803	35.8
Self-employed	182	8.1
Student	762	33.9

In terms of the marital status of the respondents (n=2217), TABLE 3 shows that nearly half (n=1024) were single and just over a third (n=797) were married. Only one tenth (n=238) were cohabiting.

Table 3: Marital status (n=2217)

Marital status	Number	Percentage
Single	1024	46.1
Cohabiting	238	10.7
Married/civil partnership	797	35.5
Separated	44	1.9
Divorced/dissolved	104	4.6

Regarding parental status (n=2218), 43.5% (n=965) had children whereas 56.5% (n=1253) did not have children.

Some limitations with the sample must be acknowledged as it was not obtained randomly. Given that the majority of the respondents were obtained by a Russell Group university, it may be expected that there is some bias towards middle-class, educated respondents. This concern may be mitigated by the involvement of Greenwich University, which is a widening participation university with the majority of its students being first generation students from a working class background. The limitations of this design of student survey are discussed at greater length in the journal article by Gary Potter and Catherine Williams. [69] Care should be taken when interpreting the statistics: they are representative of the respondent population but not of the general population.

5. Results

Despite judicial and academic concerns about income sharing beyond needs, nearly one half of those surveyed supported this approach when it was a long marriage. The question said:

In the following scenarios, the husband and wife have been married for twenty years. They have two grown-up children. The husband and wife are both aged in their fifties. The wife has never worked outside the home. The husband works as a city trader. He earns £5 million per year. What share should the wife receive of the husband's future income? Tick one box only. □ a) Nothing □ b) Less than half (but enough to meet her needs) □ c) Half □ d) More than half □ e) All

TABLE 4 shows the breakdown of the responses. Of our respondents, 47.1% (n=1124) thought that the wife should be awarded half of the husband's future income where it was a long marriage. The close behind option was income to meet her needs, namely 40% (n=954).

Table 4: Q5b Responses (n=2394)

	Frequency	Valid Percent	Cumulative Percent
Nothing	199	8.3	8.3
Meet needs	954	40.0	48.3
Half	1124	47.1	95.4
More than half	106	4.4	99.8
All	4	.2	100.0

The respondents' views were influenced by the manner in which the income had been acquired. Provision for the wife decreased where the husband's income was derived from a family trust fund. Another question said:

In the following scenario, the husband and wife have been married for twenty years. They have two grown-up children. The husband and wife are both aged in their fifties. The wife has never worked outside the home. The husband is a professional polo player. He receives an income of £5 million per annum. He receives this income from a trust fund, as he was born into a wealthy family. What share should the wife receive of the husband's future income? Tick one box only. □ a) Nothing □ b) Less than half (but enough to meet her needs) □ c) Half □ d) More than half □ e) All

TABLE 5 shows the breakdown of the responses. 43.4% thought that the wife should be limited to her needs (n=1035) and 41.9% thought that she should be awarded one half (n=999).

Table 5: Q5a Responses (n=2394)

	Frequency	Valid Percent	Cumulative Percent
Nothing	233	9.8	9.8
Meet needs	1035	43.4	53.1
Half	999	41.9	95.0
More than half	119	5.0	100.0
All	1	.0	100.0

Generosity to the wife was also affected by the duration of the marriage. Another question said:

In the following scenario the husband and wife have been married for three years. They have no children. They are both aged in their early twenties. The wife is a home-maker and has never worked outside the home. The husband works as a city trader. He earns £5 million per year. What share should the wife receive of the husband's future income? Tick one box only. □ a) Nothing □ b) Less than half (but enough to meet her needs) □ c) Half □ d) More than half □ e) All

TABLE 6 shows the breakdown of the responses. Where the marriage was short and childless, 34.2% thought that the wife should be awarded nothing (n=817), 44.5% thought that she should be limited to her needs (n=1065) and 20.2% thought that she should be awarded half of the husband's future income (n=483).

Table 6: Q3b Responses (n=2394)

	Frequency	Valid Percent	Cumulative Percent
Nothing	817	34.2	34.2
Meet needs	1065	44.5	78.7
Half	483	20.2	98.9
More than half	24	1.0	99.9
All	3	.1	100.0

The least generous provision was where it was a short marriage with the income being provided by a trust fund. The question said:

In both the following scenarios the husband and wife have been married for three years. They have no children. They are both aged in their early twenties. The wife is a home-maker and has never worked outside the home. The husband is a professional polo player. He receives an income of £5 million per year. He receives this income from a trust fund, as he was born into a wealthy family. What share should the wife receive of the husband's future income? Tick one box only. □ a) Nothing □ b) Less than half ( but enough to meet her needs) □ c) Half □ d) More than half □ e) All

TABLE 7 shows the breakdown of the responses: 40.3% thought that the wife should be awarded nothing (n=960) whereas only 12.9% believed that she should be awarded a half of the husband's future income (n=308).

Table 7: Q3a Responses (n=2394)

	Frequency	Valid Percent	Cumulative Percent
Nothing	960	40.3	40.3
Meet needs	1081	45.4	85.7
Half	308	12.9	98.7
More than half	24	1.0	99.7
All	8	.3	100.0

In general, with regards to the division of income, a greater proportion of the survey respondents supported income sharing for the longer term marriage than the shorter one. Respondents also seemed to be more supportive of income sharing when the income was derived from employment than when it was derived from a family trust. The percentage of the survey respondents who considered that a wife should be awarded half of the husband's future income decreased from 47% when it was a long marriage to 42% when the income was derived from a family trust to 20% when it was a short marriage.

6. The influence of demographic factors

The above results are based on the respondent population as a whole. However, it is illuminating to identify further patterns relating to demographic factors. For example, marital status influenced responses: respondents who were single were less generous towards the wife than those who are or have been in a relationship.

For the question where it was a short marriage with the income being provided by a trust fund, TABLE 8 shows the breakdown of the responses in terms of marital status.

Table 8: Q3a Percentage responses by marital status (n=2205)

	Nothing	Meeting needs	Half or more	Total number of responses
Single	44.1	43.0	12.9	1018
Cohabiting	39.5	42.7	17.7	248
Married/civil partnered	34.1	50.7	15.2	791
Separated/ divorced	39.9	48.6	11.5	148

A much higher proportion of single people indicated that the wife should receive nothing (44.1% of single respondents), compared with those cohabiting (39.5% of cohabiting respondents) or married/civil partnered (34.1% of married/civil partnered respondents). This is not linked with single people being younger as there were no statistically different results between different age ranges.

In addition, the responses differed according to gender, with men being less generous. Men were 1.4 times more likely to suggest 'nothing' in the scenarios involving short marriages although both genders overwhelmingly saw meeting needs in a short marriage as the correct level. Broadly similar patterns applied to the other scenarios. Again using Question 3a as illustration (short marriage and income derived from trust fund), TABLE 9 shows the breakdown of the responses in terms of gender.

Table 9: Q3a Percentage responses by gender (n=2205)

	Nothing	Meeting needs	Half or more	Total number of responses
Male	43.9	45.7	9.2	1062
Female	35.9	47.1	16.3	1143

A much higher proportion of female respondents indicated that the wife should receive half or more (16.3%), compared with male respondents (9.2%), but most of the respondents considered meeting needs to be the correct level of support in a short marriage with the income derived from a trust fund.

This gender divide was also reflected in the patterns of responses from parents/non-parents. Parents were more generous with provision for the wife than non-parents. Again using Question 3a as illustration (short marriage and income derived from trust fund), TABLE 10 shows the breakdown of the responses in terms of being a parent.

Table 10: Q3a Percentage responses by parental status (n=2206)

	Nothing	Meeting needs	Half or more	Total number of responses
Parent	34.1	52.2	13.8	960
Non-parent	43.7	41.7	14.6	1246

A much higher proportion of respondents without children indicated that the wife should receive nothing (43.7%), compared with respondents who are parents (34.1%). This was exacerbated when combined with male/female responses. Again using Question 3a as illustration (short marriage and income derived from trust fund), TABLE 11 shows the breakdown of the responses in terms of being a parent.

Table 11: Q3a Percentage responses by gender and parental status (n=2213)

	Nothing	Meeting needs	Half or more	Total number of responses
Male parent	36.1	54.3	9.7	435
Male non-parent	49.1	39.5	11.4	605
Female parent	32.3	50.6	17.1	492
Female non-parent	38.7	43.7	17.7	623

The most striking difference is with male respondents who did not have children: nearly half considered that the wife should receive nothing (49.1%). This was a much higher proportion than the female respondents without children (38.7%). A much higher percentage of female parents and non-parents considered that the wife should receive half or more (17%) than their male equivalents (9.7% and 11.4%).

Where it was a longer marriage, women were more in favour of income sharing. using Question 5b as illustration (long marriage and earned income), TABLE 12 shows the breakdown of the responses in terms of gender.

Table 12: Q5b Percentage responses by gender (n=2223)

	Nothing	Meeting needs	Half or more	Total number of responses
Male	9.1	46.4	44.3	1069
Female	6.8	33.9	59.2	1154

A much higher proportion of female respondents indicated that the wife should receive half or more (59.2%), compared with male respondents (44.3%). This was again reflected in Question 5a (long marriage and income derived from trust fund) where 55% of the female respondents considered that the wife should receive half or more of the husband's income. In short, the majority of the female respondents supported income sharing where it was a long marriage regardless of the source of income.

7. Discussion

Although income sharing does not necessitate an award of half of the payer's income, the survey data provides a surprising level of support for the principle of sharing of income beyond needs between spouses. This is even where income sharing would not be justified by being expressed in terms of an award of compensation. The survey data also shows clear support for the use of discretion in the effect of duration of marriage and source of income.

A gender divide is clear from the survey responses. More than half of the female respondents (59.2%) considered that income sharing beyond needs was appropriate in a long marriage, contrasted with 44.3% of the male respondents. It is worthwhile noting Lady Hale's comment in Radmacher v Granatino that 'there is a gender dimension to the issue which some may think ill-suited to decision by a court consisting of eight men and one woman'. [70]

The survey respondents seemed to approve the linking of greater duration with greater entitlement. Duration of the marriage is already a factor for consideration by the court [71] but linking longer duration with greater entitlement has implications for the courts and litigants. It appears to support the income-sharing theories based on 'merger over time' [72] referred to in the Law Commission's consultation paper, whereby a wife is given a percentage interest of the husband's earnings based on the duration of the marriage. Rebecca Bailey-Harris has asked whether such an approach that requires the wife to earn an award over time may have 'potential for discrimination between the domestic and entrepreneurial roles, in that it appears to require the homemaker to earn deemed equal value over time, whereas no such requirement is made of the breadwinner.' [73] This concern was also expressed by the Supreme Court in Miller/Mcfarlane. Lord Nicholls stated that restricting the yardstick of equality to long marriages would be discriminatory: 'a short marriage is no less a partnership of equals than a long marriage. The difference is that a short marriage has been less enduring. In the nature of things this will affect the quantum of the financial fruits of the partnership'. [74] Baroness Hale preferred to view duration as a potential reduction rather than an accrual over time. [75] The data suggests that the majority of the survey respondents did not share concerns about discrimination in linking duration with entitlement. John Eekelaar has written: 'Duration of marriage is an excellent proxy for measuring a number of factors which are important in achieving a 'fair' outcome.' [76]

The survey respondents appeared to be more supportive of income sharing when the income was derived from employment than when it was derived from a family trust. Although income is a factor for consideration by the court, [77] consideration of the source of the income is not explicitly required by the statute. Nevertheless, the survey responses appear to approve the judicial innovation of the ring-fencing of inheritance, by categorisation as non-matrimonial property. Lord Mance in Miller/McFarlane summarised the court's approach: 'The yardstick is not so readily applicable to non-matrimonial property, especially after a short marriage, but in some circumstances even after a long marriage'. [78] The data suggests that the majority of survey respondents recognised the importance of the source of the income and supported a departure from equality for income derived from a family trust.

8. Conclusion

Pending legislative reform, the law of ancillary relief is in a state of flux. Despite clear statutory principles, a number of competing approaches to the allocation of post-separation income have emerged, establishing principles such as the avoidance of discrimination and or compensation for relationship-generated disadvantage which are not found in statute. Arguably this has caused inconsistency of approach, both between cases and between income and capital provision within cases. There is undoubtedly a need for greater clarity in the law and this need is recognised by the recent Law Commission review. [79]

The case of Miller/Mcfarlane opened the way for the family law courts to make more generous provision on divorce, by way of income sharing. This allows an award of periodical payments not limited by the respondent's reasonable needs, but instead expressed as a share of the payer's income. However, the concept of income sharing has been subject to criticism: academic negativity being matched by judicial reluctance to make such awards.

This study sets out survey data, using fictional scenarios to indicate views about the desirability of income sharing. Of the sample of just under 2,400 respondents, 47% considered that a recipient should be awarded a share equivalent to half of the payer's future income. However, this was only where it was a long marriage and the income was not derived from a family trust. It can therefore be seen that the survey data supports the application of judicial discretion when considering the implications of duration of marriage and source of income. Analysis of the survey results also reveals a gendered dimension to views about income allocation: a higher proportion of female respondents than male respondents approved income sharing, especially in long marriages. Of the female respondents, 59% considered that a wife should be awarded a share of income beyond needs in a long marriage, compared to only 44% of male respondents.

The survey data is surprisingly supportive of income sharing, particularly amongst female respondents. However, it should be noted that the survey only addresses the quantification of periodical payments. Future research could remedy this by seeking views on the clean break principle and the issue of duration of periodical payments. Further research on the duration of periodical payments would aid an assessment of the desirability of income sharing beyond reasonable needs.

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We are grateful to Garfield Potter for carrying out an initial data analysis and to Lucy Yeatman for her comments on an earlier draft of this article. All errors and other deficiencies are ours alone.