Principle or Pragmatism in Ancillary Relief: The Virtues of Flirting with Academic Theories and Other Jurisdictions

Abstract

The recent decision of the Court of Appeal in the cases of Parlour and McFarlane raises important questions about the English courts` approach to property division and financial provision on relationship breakdown. The decision exemplifies English law`s pragmatic, needs-based approach, where the principles, if any, determining the courts` awards are frequently unarticulated. This paper contrasts English law with the approach of New Zealand, which has had mixed success with its attempt to adopt a more explicitly principled basis for property division and financial awards. It is argued that there are useful lessons for the development of English law from the experience of New Zealand and other Commonwealth jurisdictions, and from academic literature. Adoption of a clearer set of principles, particularly those based on notions of entitlement and compensation, rather than need, would provide increased certainty for litigants and a more satisfactory ideological foundation for the law.