Are the odds stacked in favour of ‘gold diggers’?

Divorce|August 26th 2009

ms-racesI have been fortunate enough recently to attend two horse racing events. I love the races, even though I’m not much of a gambler. The sleek lines of the beautiful horses, the roar of the crowd, everyone dressed up to the nines; intent on having a really good time and celebrating the King of Sports.

A few weeks ago I was a guest for the day at Goodwood Races. Thanks to the British weather, it didn’t quite live up to its ‘Glorious Goodwood’ name! Sheltering from a downpour when the heavens opened, an elderly lady wearing a pink hat started talking to me. She was in her late 70’s but looking closely at her I was amazed because she had the most beautiful skin I had ever seen – and the most stunning, piercing blue eyes. As we were talking she pointed out her daughter, who although very smartly dressed, was running around with buckets directing staff to mop up the rain.  At that point, recognising her daughter, I realised I was talking to the very famous Bronwen Viscountess Astor – the first ever “Supermodel” and whom the couturier Pierre Balmain said was one of the most beautiful women he had ever met. I could well understand why.

There is a biography of Lady Astor, and on the front cover she is photographed in her modeling days, wearing a gorgeous hat. A few days later my knee was playing up so I decided to take a walk round Harrogate to try and walk it off. As I reached the bottom of the hill past Betty’s Tea Shop, I walked past a dress shop and – there in the window – was almost the same hat. It was the same shape and size. It was stunning. It was obviously waiting for me!  I thought it was perfect for the Ebor Festival I was due to attend so I tried it on and on impulse, I bought it. I liked that it was possile to hide beneath it. I could see …but not be seen. It proved very useful.

I wore it to the Ebor in York two days later, where I was lunching with the chairman of the York race committee and his guests. It was very grand, and they were very pleasant people, all experts in the racing field whilst I was clearly a novice. The conversation at lunch veered away from horses only once – to John Cleese and his divorce. As the conversation came round to divorce it was easy for me to incline my head with my large hat and avoid taking part in that conversation! They were discussing the article in the Daily Telegraph which I had read that morning and thought was very cruelly written against his wife, Alyce Faye. She was portrayed as a gold digger, a jumped up nobody from a council house who had wanted, and got, far too much money at the end of the marriage.

I wasn’t in the mood to be controversial at the races. I was enjoying myself, away from my professional field where I hear so much heart ache and misery. Because of everything I witness, I believe it always takes two to end a marriage with dignity. I didn’t agree with the opinion in the Daily Telegraph about Alice Faye at all. So I was able to politely hide away beneath my elegant and very useful hat.

The author of the piece mixed up her Californian law and English law and turned it into a hybrid hotch potch, making her argument unintelligible to me. It didn’t seem to bear much resemblence to the English law that I practice. I’m no expert on Californian law but I’m pretty sure it recognises that a martial partnership is equal and therefore requires a 50/50 division of marital assets – and as such, there is a strict division.

Men and women are treated as equal in Californian law. No distinction is made between them. The author complains she doesn’t like this. Its unfair.

But she then assumes this is the case in England, and complains that English law doesn’t recognise short marriages, the absence of children, the fact that the wife may have her own lucrative career and so on.

It does all those actually, because it has certainty and it also has discretion. S25 Matrimonial Causes Act 1973 sets out clearly the factors which a court takes into account. All those elements she says the courts ignore are clearly there to be considered, along with many other factors.

So in England, there is no automatic 50/50 division required by statute.

However, needs having been met, it is generally the case the remaining assets will be divided equally.  BUT… there is judicial discretion to depart from equality if the case permits. And they do. So in cases of short marriages, such as the McCartneys, there is no equality. And there would not have been in this case either. Mrs Cleese would not have walked away with the same amount as Mr. Cleese because his pre marriage contribution would certainly have been taken into account.

However, in the very rare estoteric cases such as Mr. and Mrs Cleese, arguments about the wife’s entitlement to a multi million pound divorce settlement will continue to rage -despite this being a long marriage and despite Mrs Cleese clearly having contributed to that marriage as a wife and as a high earning professional woman. To my mind, the rather jealous snobs who see her only as a gold digging former council house tenant will have it no other way. They resent her having a high divorce settlement. But why shouldn’t she?

I attribute an equal legal, moral and social value to a wife as to a husband in a marriage, which is, of course, a legal partnership. Wives are not servants or chattels to return to the council house from whence they came when they are no longer of use, on a reduced pay out. But, judicial discretion permits recognition of the pre marital contribution by the husband – and that is as it should be.

To do otherwise, to deny women equality, to attribute different values to earners and non earners, would return us to the days we women came from years ago. They are not the days we should return to without a fight.

For the vast majority of women in this country, however, it is all irrelevant. Judicial discretion is in fact vital. The vast majority of divorcing couples do not have millions of pounds of surplus cash and capital assets to divide up; they need every penny for their needs and those of their children. They desperately need the discretion of the courts to adjust division where appropriate, to make sure justice is done where there is, as in most cases, an imbalance between the earner and the homemaker.

Getting rid of judicial discretion, getting rigidity into the law will create injustices too but for the poor as well as the wealthy. And where exactly will the Daily Telegraph stand then?

Author: Stowe Family Law

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