HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.
![handle is hein.journals/lqr119 and id is 365 raw text is: THE LAW
QUARTERLY
REVIEW
Volume 119 July 2003
NOTES
COMMUNITY OF PROPERTY IMPOSED BY JuDcIAL. DECISION
THE combined effect of the decisions of the House of Lords in White v
White [2001] 1 A.C. 596 and the Court of Appeal in Lambert v Lambert
[2002] EWCA Civ 1685, [2003] 2 W.L.R. 63, pet dis. [2003] 1 W.L.R. 926,
HL is dramatic: they introduce into English law a regime of community of
property (albeit only deferred community) limited to acquisitions. The
cases seem to provide strong support for the view that the Diceyan theory
of the English being governed by laws and by laws alone really means that
they are ruled by judges and judges alone. Henceforth, when a marriage is
ended by divorce the court will (after making provision for the family's
housing and other needs) divide up the spouses' property so that each has
an equal share. It is true that this principle will not necessarily apply if
assets have been acquired by inheritance or gift and there may be other
circumstances in which the matters specified in Matrimonial Causes Act
1973, s.25(2)-the source of the powers which the courts exercise on
divorce-may dictate some modification (for example, if the relationship
has only been short: see Matrimonial Causes Act 1973, s.25(2)(d)). There
may also be cases -possibly the creative artist, the superstar footballer or
the inventive genius... who not only creates but also develops some
universal prescription or aid-in which it can legitimately be claimed that
the fairness which is the ultimate criterion requires recognition of his or her
special contribution to the welfare of the family (see Matrimonial
Causes Act 1973, s.25(2)(f)) to be given by allotting less than half of the
family fortune to the homemaker, but these circumstances will be wholly
exceptional: see per Bodey J. at [72] and per Thorpe L.J. at [46]; and cf.
Cowan v Cowan [2002] Fam. 97. It seems probable that a similar principle
will be applied in dealing with a widow's claim to reasonable financial
provision out of her husband's estate: Inheritance (Provision for Family
and Dependants) Act 1975, s.3(2).](ViewImageLocal?handle=hein.journals/lqr119&div=22&collection=&method=preview&ext=.png&size=3)