Posted by Shreya Kallingal on 3rd January 2023
Relationship generated disadvantage and the view of the Family Courts

Divorce lawyer Shreya Kallingal explains “relationship generated disadvantage” and if a woman can rely on it in a divorce claim.

In a recent decision by His Honour Judge Edward Hess TM v KM [2022] EWFC 155, a wife/mother was provided a compensation of £500,000 in recognition of the “relationship generated disadvantage” she faced in taking up the role of the caregiver in her marriage. This award was made in her favour in addition to considerations of her needs and entitlement to a share of the matrimonial assets.

So, can a woman claim rely on the argument of “relationship-generated disadvantage” in a divorce claim, and if so to what extent? At the risk of the most lawyerly cliché: it depends. Let’s look at the evolving position of the Courts.

Initially the Court’s focus was on merely meeting the needs of the financially disadvantaged party, allowing the breadwinner to walk away with their earning capacity and everything else. [White v White]. This position has since shifted with the Court recognizing the equal contribution of both the bread winner and the caregiver in the relationship allowing them to share equally in the fruits of the marriage i.e the marital acquest or matrimonial assets. [Mcfarlane v Mcfarlane].

Over the years, the gender-based delegation of roles within the family unit and the level of support a woman is afforded in choosing full-time caregiving role has caused much debate. One may choose to be a full time homemaker, but should one automatically accept the systemic financial disadvantages that stem from such a choice when the marriage breaks down? As a general rule the Court will look at meeting the needs of parties (and any children) in the first instance before then looking at the principle of sharing between the spouses. The Courts do account for the financial disadvantages of full-time caregivers by awarding them an equal share in the matrimonial assets (and non-matrimonial assets where it is necessary to meet the needs of parties). This is in consideration of factors like the caregiver’s loss of income earning capacity, borrowing capacity, limited access to suitable housing, continuing care responsibilities etc.

But does this sufficiently compensate the caregiver for the loss and sacrifice of an otherwise high paying or lucrative career? The Courts have expressed concern that once a financially disadvantaged spouse has received a share from the matrimonial pot, it is not fair that they benefit twice over from an additional compensation award by double counting.  The two landmark cases in history where women were successful in advancing an argument for compensation [Mcfarlane v Mcfarlane] and [TM v KM] involved an exceptional set of facts involving very high value assets and persons with high-income potential.

In conclusion, the present decision in TM v KM is a feminist victory in that it offers a lot of valid discourse around the often-gendered phenomena of “relationship-generated disadvantages”. However, this cannot be taken as a green light for all litigants to advance a compensation claim for relationship-generated disadvantage before the Family Courts. Our cultural appreciation for the sacrifices of mothers (and fathers) consequently remains but a sentiment. For the majority of financial remedy proceedings, it is worth remembering the guidance of Baroness Hale in Mcfarlane with regard to financial outcome of a divorce – “The ultimate objective is to give each party an equal start on the road to independent living.”

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Shreya Kallingal is a Solicitor at The Family Law Company. Dual-qualified she has experience as a Lawyer in India, Her academic study of comparative law and experience in dealing with multi-jurisdictional cases has equipped her to deal with the challenges of cross-border work.

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