Marriage breakdown should be handled like a family funeral

Family Law|November 5th 2014

They say that the Irish have a way with words. Not having travelled to the Emerald Isle I couldn’t really comment upon that although the writings of James Joyce certainly had a profound effect upon my formative years. But I was certainly struck by the suggestion in the title to this post, contained as it was in the excellent judgment of Mr Justice Weir in the Northern Ireland High Court, in the case O’H v O’H.

O’H was one of those family disaster cases that we come across all too frequently, with the parties intent upon fighting between themselves, rather than resolving matters in a sensible and amicable fashion. It concerned the husband’s appeal against an ancillary relief order (it is nice to see that the courts in Northern Ireland still use the term ‘ancillary relief’ to describe proceedings for a financial/property settlement following divorce).

The parties were married in 1986 and had two children. They separated in 2002, following which “they subjected their unfortunate children to a lengthy and acrimonious dispute about a myriad of matters related to the arrangements for their residence and contact”. Not satisfied with that: “…they also turned their attention to a protracted squabble about their modest matrimonial assets, accruing in the process yet more acrimony and considerable and quite disproportionate expense”.

The ancillary relief order was made by Master Redpath in 2009 (a ‘Master’ is a judicial officer). He decided that the wife was entitled to more than half of the assets, having regard to all the circumstances of the case, in particular that the children were living primarily with her and that her financial contribution had been greater than the husband’s. The husband was therefore awarded 35 per cent of the net equity in the former matrimonial home, plus 25 per of the wife’s pension and half of a joint insurance policy. Along with his own pension provision, the husband’s total share was valued at approximately £100,000.

I will let Mr Justice Weir explain what happened next:

“Objective observers might have thought that this award by the Master was a not unreasonable attempt to achieve the fair distribution of these modest assets in all the circumstances. Unsurprisingly, given the acrimonious and protracted course of dealings between [the husband] and [the wife] since their separation [the husband] (at least) did not agree. Whilst he has apparently been unable to undertake any gainful employment since being dismissed from the police he has evinced boundless energy and dogged persistence in the pursuit of what he considers to be his entitlements both regarding the children and the matrimonial assets. He accordingly appealed against the decision of the Master, his main complaints being that the matrimonial home had been undervalued, that [the wife]’s occupational pension had been undervalued by using an incorrect method and, later, that one of the two children had moved to live principally with him so that their care was now more or less evenly divided between each parent.

So began a long and depressing odyssey before me.”

The hearing of the husband’s appeal eventually took place last November. Mr Justice Weir found that the care of the children was more equally divided and that the wife’s pension had been undervalued, but that the value of the home had fallen significantly, due to the depressed state of the market. He concluded that the matrimonial assets should be apportioned with 60 per cent going to the wife and 40 per cent to the husband, in view of the wife’s greater contribution.

The net effect of all of this would leave the husband with £91,000 and the wife with £136,000. However, the wife had incurred legal costs of some £50,000, whereas most of the husband’s costs had been covered by legal aid. To take account of this, Mr Justice Weir adjusted the husband’s share down to £75,000, increasing the wife’s share to £152,000. After they had paid their costs this would leave the husband with about £65,000 and the wife with about £100,000.

In short, the appeal had left both parties considerably worse off. Clearly exasperated, Mr Justice Weir added a postscript to his judgment, which I will quote in full:

“If an example were to be sought as to how arrangements between parties upon the breakdown of their marriage ought not to be handled this case would provide a paradigm. In my view such matters should be resolved quickly, quietly and respectfully – rather like a family funeral. Such an approach minimises the hurt that one or both parties is naturally likely to feel, reduces the adverse effect upon any children of the family, maximises what are often scarce resources needed for the future use of the parties instead of dissipating them in costly litigation and shortens the period needed before the parties can move on to live their lives independently of each other. None of these advantages has accrued to the parties in this case. Rather has there been a long and bruising battle over the children and the modest matrimonial assets that has left everyone concerned wounded, impoverished and unable to move on. It has been my unhappy task to have been engaged in umpiring both these battles and I have found it a most dispiriting experience. Let me therefore express the fervent hope that a line may at last be drawn under this unhappy period in the life of this family and that something resembling peace may be allowed at last to reign. The principal and innocent victims, the children, deserve nothing less.”

Photo of Belfast by Thardas via Wikipedia under a Creative Commons licence

The blog team at Stowe is a group of writers who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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  1. Nordic says:

    Such a crazy case could not happen in Denmark, Sweden, Finland or Norway. It could not happen in France. In fact it could not happen in most of the jurisdictions in North Western Europe. It could not happen there because asset division is governed by legally binding matrimonial asset regimes. But because we have no law, it can happen here and it does all the time. Neither this case, nor the proportion of the family’s wealth so needlessly squandered in legal fees, is unusual.
    Of course this couple should have been sensible and, as suggested by the good judge, said nice goodbyes at the coffin of the marriage. That is exactly the sort of thing somebody, who has no personal experience of the emotional turmoil of divorce, would say. A family law which is predicated on the parties always behaving reasonably is naive and grossly negligent. What divorcing families need is certainty. What they get is a total legal vacuum because Justice Weir and his colleagues insist on complete discretion to tinker with the percentages while Rome burns and huge financial and emotional collateral damage is inflicted on the parties and their children.
    Justice Weir is of course right when he concludes this case shows how not to do divorce, but he should have pointed the finger of blame squarely at the system he represents. A system which enables and encourages such disasters, rather than try to prevent them. A system in which fee generation, rather than children. so obviously is the true paramount consideration. Not doing so was hypocritical in the extreme.

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