Baroness Deech holds some strong views about divorce and financial settlements. The Times has reported that the academic lawyer, who chairs the Bar Standards Board, is to give a series of lectures this week. Her focus: the thorny issue of who gets what in terms of money after a divorce. “It is no wonder that England is the divorce capital of Europe and out of step with other European countries,” she says. Apparently she is going to argue that, put bluntly, women are getting too much, especially in the modern era of equal pay and opportunities in employment.
The article concludes with a list of “big money” cases in which wives were given very substantial capital awards and maintenance after short marriages.
Given recent decisions such as Hvorostovsky v Hvorostovsky, one can see how all the excitement arises. Mr Hvorostovsky finds, following a Court of Appeal, decision, that his maintenance liability should increase so that his former wife has some £37,500 per year more than she actually needs! The reason for this increase was nothing more than the fact that the husband now has a much larger income of his own. It is all too easy to assess the acute sense of grievance felt by such a husband, particularly where he presumably has to work very hard for this level of earnings where his former wife is able to live a life of leisure.
The shortcoming of this debate is that it concerns a vanishingly small minority of cases.
Even in specialist practices such as ours, the vast majority of our clients are working out how to deal with assets and financial resources which do not even meet both parties’ needs. Most cases are about dividing up deficits rather than surpluses! A cursory glance at the national divorce statistics shows why this is so. The highest divorce rates are for men and women in their late twenties. People like this are very rarely afflicted with large amounts of money! The national statistics also show that more than half of all divorces come before the parties have been married for 12 years. Again, this rarely reflects a husband who has reached the pinnacle of his career. Ask a busy family law practitioner and you will be told that the typical divorce involves a couple in their late 20’s to mid-30’s with a ten year relationship behind them. There will probably be a couple of young children. The family wealth amounts to the equity in the house they live in and perhaps a bit of a pension that the husband has paid into. The financial outcome for the husband and wife is usually highly unsatisfactory for both. The husband is not going to see any money until the children leave home, as often as not; the wife is going to be living for years to come in the knowledge that one day the husband will have to receive some money because there is no way she can afford to buy him out at this stage. In other words, a problem is saved up for the future. In the meantime, the husband pays child maintenance only because that is all he can realistically afford.
The sort of cases about which Lady Deech is talking about are few and far between. It is hardly a major matter of gender-equality deserving of major public attention or legislative time. It may be old-fashioned, but marriage always seemed to be about sharing – sharing the good times in life and sharing the hard times too.
However, there is another aspect of fairness that Lady Deech appears to have overlooked entirely. During the first ten years of a marriage, the husband is often getting firmly established in his chosen career. If, after ten years, the marriage ends, the wife finds herself in the position of having been her husband’s helpmeet and support in those critical early years, but cut adrift just as he can expect to see a return on his efforts. Is it remotely fair for such a wife, having been promised by the husband as part of the marriage that she will share in everything he has, to be told that now all bets are off and she must get herself back out and find whatever employment she can, probably circumscribed by childcare commitments? This is the key distinction between marriage and cohabitation – marriage is all about commitment. We live in a modern world in which cohabitation no longer has the old stigma and it is regarded as a perfectly reasonable alternative. If a man chooses to promise to his life partner a full commitment of sharing everything, how then can he complain when a Court expects him to deliver on it?
The reality is that the series of lectures is of tiny significance only to the ordinary run-of-the-mill cases which occupy Courts on a daily basis up and down the country. For the overwhelming majority of professionals, high-flown arguments about a judge’s discretion are interesting but don’t change anything. In the main part judges are exercising their discretion to decide how inadequate resources should be apportioned to limit the misery to both parties, not how to divide a superabundance.