Each and every divorce dealt with by family courts across England and Wales is dealt with according to statute, legislation put in place by parliament.

When it comes to financial remedy proceedings, a judge overseeing a final hearing is invited to make an order based on a checklist forming part of section 25 of the Matrimonial Causes Act 1973 (https://www.legislation.gov.uk/ukpga/1973/18/section/25).

Whilst it sets out factors which the court must take into account, family judges still have discretion about how to apply them to the circumstances of the cases brought before them.

Decisions in such matters made by judges in the higher courts become case law, creating a precedent which judges in the lower courts must follow.

However, different cases over more than half a century that the Matrimonial Causes Act 1973 has been in place have required fresh interpretation of how the checklist applies.

Family law, in that sense, has not stood still.

Even so, certain rulings are considered as landmarks because they have brought about a wide and significant change in how the financial aspects of divorces are determined. One such case has just marked its 25th anniversary.

In 2000, the House of Lords gave judgement on the financial settlement of a couple from Somerset, Pamela and Martin White (https://publications.parliament.uk/pa/ld199900/ldjudgmt/jd001026/white-1.htm).

Mr and Mrs White, who ran a dairy farm, had been married for more than 30 years and had three children together before their divorce.

One of the five law lords who adjudicated the case, Lord Nicholls of Birkenhead, delivered what immediately became a central principle in deliberations about financial remedy on divorce, explaining that “equality should be departed from only if, and to the extent that, there is good reason for doing so”.

For good measure, he added that “there should be no bias in favour of the money-earner and against the home-maker and the child-carer”.

Both points amounted to progress and clarity in how separating spouses would henceforth divide their joint assets. They are as valid now as they were a quarter of a century ago.

According to some, that period was book-ended by another ruling, handed down by the Supreme Court in July this year (https://supremecourt.uk/uploads/uksc_2024_0089_judgment_8c95f0cffe.pdf).

The judgement in the case involving a retired banker, Clive Standish, and his former wife, Anna, was certainly notable in the sense that it underlined another important concept which must be taken into account when assessing the nature of financial settlements on divorce; namely, the assessment of what should be regarded as part of the matrimonial pot for division.

Matrimonialisation is, in short, the idea that assets acquired before a marriage or inherited during it by one spouse (ie, non-matrimonial property) can be regarded as subject to the sharing principle if they have become intermingled with both parties’ finances and utilised or enjoyed by both.

Although the Standish judgement made clear that non-matrimonial assets should not be available for sharing, it acknowledged that they can be used to be meet a spouse’s needs or by way of compensation – the latter of which is extremely rare and very difficult to prove.

Yet a difficulty remains in most cases of demonstrating whether property is non-matrimonial or not and whether such assets have been matrimonialised during the course of a marriage.

Standish was, if you pardon the family case law pun, not necessarily a matter of black and White.

This continued lack of certainty and the element of judicial discretion are two reasons why I believe we have seen an increase in the number of couples putting nuptial agreements – pre-nups and post-nups – in place.

I should stress that such agreements themselves are still not legally binding, 15 years on from another of the milestone judgements of recent legal memory.

In 2010, the former financier Nicolas Granatino was held to a pre-nup signed with his ex-wife – the German heiress Katrin Radmacher  (https://supremecourt.uk/uploads/uksc_2009_0031_judgment_db72197d25.pdf).

The Supreme Court determined that such documents should have “decisive weight” if they have been prepared fairly and properly.

One of the reasons why I think nuptial agreements are now so popular is that they allow individuals to take matters into their own hands rather than losing control over how assets should be divided if discussions end up in court.

Again, it is worth pointing out that a pre-nup arguably conflicts with the sharing principle established in the White v White case, yet it offers spouses valuable clarity in the event of their relationship foundering.

The point has not been lost on the Law Commission, which last December published a scoping report about whether there was justification for a first major reform of financial remedy law in more than half a century (https://lawcom.gov.uk/project/financial-remedies-on-divorce/).

Almost 12 months on, ministers have still not indicated whether they intend to act on the Commission’s suggestions.

In the continued absence of fresh statute, case law such as White, Radmacher and Standish continue to be vital.

It also means that we will have to wait to see what other rulings may similarly help formerly married couples.

Whether those judgements will be talked about in a quarter of a century or not, of course, remains to be seen.