Why Baroness Deech is wrong – by Jonathan James

Stowe Family Law|September 16th 2009

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.

Author: Stowe Family Law

Comments(10)

  1. Charles says:

    Actually, you sum up the general unfairness of the English system in ordinary cases with this remark:

    “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.”

    I.e. The husband is left homeless and paying child maintenance (with no account taken of the former wife’s income level for CSA child maintenance) and has to provide himeself with a home!

  2. james c says:

    ‘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?’

    Probably because the Court is not meant to assign blame for the divorce and does not expect the woman to deliver on her promises.

  3. Marilyn Stowe says:

    What worries me is the power of the media in potentially influencing changes in the law when it is pretty clear they dont fully understand what the law is and what the likely impact of future change might bring. Thus we have the phrase “London is the divorce capital of the world”
    In fact, we have current law which allows the court to make an order to fairly fit the circumstances of each and every case as they dont blindly have to follow a set formula.
    I am concerned that particularly because of media pressure, following one or two high profile and wholly unrepresentative cases, discretion to do justice between the parties may be abolished in favour of a prescribed formula. If it is, it will mean a great deal more unfairness particularly for the less well off. And conversely non-working spouses of the very wealthy who have earned a great deal of money during the marriage, will probably do better as well.
    The retention of discretion and the duty to apply all the factors contained in s25MCA 1973 in order to achieve a fair settlement, give this country a cutting edge over those legal systems who ritually apply formulaic law no matter the outcome on the parties, and it seems wholly wrong to me that in the interests of media pressure and “comity” our courts are also having to deal with media pressure that would throw the baby out with the bath water.

  4. Adrian Savage says:

    Marilyn Stowe’s opening remark is somewhat ironic given that her colleague, Jonathan James’s blog is apparently based purely on the press coverage, rather than the full paper as presented by Baroness Deech, which I have taken the time to read in its entirety. I would suggest they both take time to read the full paper before commenting any further.

    James C’s comment is pithy and no doubt reflects the bewilderment which many men feel when they encounter the “Alice in Wonderland” world of divorce law. My impression is that we tend to hear more about men who do not act “reasonably”, whatever that actually means, than we do about men who do a pretty decent job of fulfilling their commitments to their wives and children come what may, but receive little acknowledgement of what they do, and then find to their consternation that their commitment is not matched by that of their wives, who find it all too easy to demand a divorce without having any sensible regard for the practical consequences either financially, or, most importantly for children.

    Baroness Deech’s paper is not about “high value” divorces. It is about the issues which arise in “ordinary” divorces and an attempt to analyse the causes and suggest some measures which might provide better solutions. There is, I think, a moral message too: I would summarise it as a need for the law to better recognise a duty falling on spouses and parents to take reponsibility for their actions, especially where not doing so imposes a cost on their children, each other, and the taxpayer. This is not to say that every marriage must be maintained at all costs, but merely that it can be too easy to end a marriage without good reasons for doing so.

  5. Marilyn Stowe says:

    Adrian I am a practising solicitor not an academic and my comments are influenced by my career experience. I have been involved with thousands of real life divorce cases for going on nearly 30 years and I continue my involvement full time. Whether you accept this or not, I have never been instructed by a client who has not agonised on the decision to end their marriage, and in so instructing also believes that there is no viable alternative for themselves or their children. If they did, they would not be instructing me.
    You raise the question of morality. I do not believe it is “morally right” to keep parties and their children trapped in a broken marriage for reasons of financial expediency. Children of marriages where warring parents stay together often for financial reasons, may also be brutally damaged too.

  6. james c says:

    Adrian,

    The original poster’s quote was absurd-the Court does not enforce marriage vows. I am sure that he knows his audience, though.

  7. Adrian Savage says:

    Marilyn, I think we can agree that very often journalists pick out headlines and “stories” and do not do justice to the underlying truth of what they are reporting. This is perhaps in the nature of “news”. I acknowledge your long experience and the perspective which this brings. As a practising solicitor is your duty to advise your clients on the law as it is and to seek the best outcomes for them based on that law. However, I do not think that this precludes considering whether the relevant law might be flawed and could be improved.

    I note that you did not answer the simple question as to whether you had read Baroness Deech’s paper? One of the points made was that divorces involve considerable emotional, financial and social costs. You are absolutely right to refer to the damage which is done if a broken marriage is not ended, especially potentially to children. To recast the “moral issue” in utilitarian terms, the current system does not weigh the relative harm of divorce or “no divorce”. It places no substantial barrier in the way of a misconceived desire for divorce, and gives little weight to the interests of the spouse who accepted a commitment which is now being broken.

    In summary, although in some cases divorce prevents probable further damage to the parties, and, importantly, their children, which would be caused if they stayed together, this does not mean that in other cases divorce is not the more damaging option – but there is little that can be done to resist it, even if this is the case.

    A decision to issue divorce proceedings is, I suspect, very often influenced more by emotion than a calm and rational analysis and consideration of the consequences, practical, financial or otherwise. As a matter of policy, surely consideration of steps, such as those proposed by Baroness Deech, to improve the decisions made in such circumstances is to be welcomed given the possible gravity of their ramifications?

    james c,

    I agree. But whilst it is impossible for those vows to be enforced, that does not mean that the Court should allow them to be disregarded with impunity.

  8. Marilyn Stowe says:

    The best way for me to deal with the issues you raise are in further posts. I have one almost ready to post about marriage – is it too easy to marry- and the second will be about divorce reform. I will welcome your comments.

  9. The Baroness Deech bill and spousal maintenance - Marilyn Stowe Blog says:

    […] private member’s bill tabled by Baroness Deech had its second reading in the House of Lords today. Drafted with help from “an expert”, the […]

  10. Luke says:

    Frankly Jonathon I think this post is poorly thought out – because you open yourself up with so many of these arguments – here are some examples:
    .
    =========================================
    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.
    =========================================
    .
    There are a ton of assumptions here – why does the marriage end ? The vast majority of women initiate divorces – are you suggesting women that are not ‘cut adrift’ should not get spousal maintenance ? I strongly suspect not…
    .
    Have the couple got children ? How many and how long has she been looking after them (i.e. how much free time has she had in that 10 years) ? Virtually none of this comes into play on maintenance – do you want to bring this into the calculation on how long a spouse gets maintenance and how much she gets ? Again, I bet you don’t.
    .
    Basically you can drive a coach and horses through this argument.
    .
    .
    =========================================
    We live in a modern world in which cohabitation no longer has the old stigma and it is regarded as a perfectly reasonable alternative.
    =========================================
    .
    Interesting, my understanding is that almost all lawyers want to move away from the ‘modern world’ and bring in common-law marriage – but this argument above strongly suggests you believe in the right to choose – or your position of a reasonable alternative that the man can always take is not really legitimate because it can be taken away very rapidly by new legislation.
    So, are you against common law marriage rights being introduced ??? Again, I doubt it but it will be interesting to hear.
    .
    ==============================================
    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?
    ==============================================
    .
    So if a wife promises to stay married: “Until Death Us Do Part”; “For Richer, For Poorer”; “For Better, For Worse”; how then can she complain when a Court expects her to deliver on it?
    .
    Yes, I too think that’s a ridiculous thing to ask for, all the vows in marriage are a bit of a joke and are broken whenever convenient – EXCEPT – according to you, the one’s the man makes !
    .
    Good grief.
    .
    Note: I am aware that there are women who earn more money than men and that there are a minority (minority as of June 2014) of cases where women will financially lose out too, however, it must be understood that I am responding specifically to the post written by Jonathan James.

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