Henry Frankenstein : Look! It's moving. It's alive. It's alive... It's alive, it's moving, it's alive, it's alive, it's alive, it's alive, IT'S ALIVE!
Victor Moritz : Henry - In the name of God!
Henry Frankenstein : Oh, in the name of God! Now I know what it feels like to be God!

Frankenstein (1931) Director: James Whale

 
It sometimes seems that with each visit a wealthy divorcing family makes to the House of Lords a new concept is crudely sewn on to the 35 year old divorce law like an extra limb. There was ‘reasonable requirements’ in the 1970’s. ‘Equality’ in 2000. Now after the House of Lords has brutally tortured the wording of the 1973 Act like never before, there is ‘compensation.’ None of this is in the statute. The net result of all this industry is to make the law into an unpredictable lumbering Frankenstein’s monster that roams the land striking terror and confusion into the chambers of District Judges and driving up costs.

This sort of judicial ‘creativity’ can make it harder to advise divorcing parties because none of us know when a limb will fall off the monster or where a new incompatible body part might bolted on. Surely the law needs to be either applied as it is written, or better still it needs to be re-enacted taking into account such concepts as pre-nuptial contracts, equality and the concepts of matrimonial and non matrimonial property.

These days the courts will distinguish between matrimonial property and non matrimonial property. This means that assets built up within the duration of the marriage will be shared, but assets earned or acquired either before or after the period of co-habitation may not be.

Given the emphasis in recent case law Miller [2006] UKHL24 and Rossi [2006] EWCH 1482 – on sharing the ‘matrimonial acquest’ there seems to be no reason why the same principles should not be applied to pensions built up prior to the marriage, or post separation. Many actuaries are instructed in the case of a long marriage to say how a pension might be divided up to provide an equal income in retirement.

I have not yet seen an instruction to an actuary that aims to apply a distinction between matrimonial pension and non matrimonial pension but some readers might have done. In an appropriate case such an approach would be justified. Suppose a husband gained an inheritance 18 months after separation and put in into his existing pension fund. As long as the wife’s needs could be met with a fair share the matrimonial assets there might be no good reason why the husband should not retain the inheritance in the form of the increased pension. It would need to be carved out of the pension fund of course but that is what you use an actuary for.

But what will the wife say if confronted by the husband’s argument of post separation property ring fenced for his own use. She might draw on the ‘extra statutory’ Miller concept of compensation. She could say that but for this divorce she too would be enjoying the fruits of the husband’s inheritance in the form of extra pension.

And to bolster her compensation argument, could she not ask the court to blow the cobwebs and dust off MCA 1973 S:25(2)(h). This subsection is routinely ignored but is clearly still a part of the law. Its purpose is to ensure that the court takes account

‘…..of the value to each of the parties to the marriage of any benefit (for example a pension) which by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring’

How long I wonder, will it be before the courts are confronted with the eerie spectacle of S:25(2)(h) as it rises smoking from it’s creaking coffin like a resurrected vampire, woken by the taste of blood on it’s lips that dripped from the alien concept of ‘Miller Compensation’.

Tom Tyler is a family law barrister at 4 Brick Court chambers