Judicial reality check

Family Law|March 2nd 2015

At the end of last week a divorce case currently going through the High Court made the headlines, when the judge reportedly said to the husband that he was not sure he and the husband were “on the same planet”. The judge was Mr Justice Holman, and he made the comment because the husband, with a fortune of at least £150 million, was arguing in court that his estranged wife was only entitled to her own separate property which was worth £5 million, an amount expected to fall to just over £3 million when bills are paid.

Mr Justice Holman told the husband’s counsel that he was “really concerned” about the husband’s “open” position that he was “not going to pay [the wife] a penny” and reportedly expressed his disbelief that “a wife of roughly 20 years, married when neither had a bean, and he is now worth at least £150 million, should be expected to go away with just over £3 million.”

However, the part of the report that caught my eye was that Mr Justice Holman told the parties that there was “plenty of money to go round”, that there were no difficulties and that it “should be so easy”. He then added the following reality check: “People who are struggling to afford two-bedroom houses have difficulties.”

Quite. For so many couples going through divorce the simple problem is that there are insufficient assets available to meet their needs. Those are the cases that are really difficult. For couples whose assets are more than the vast majority of us could ever dream of owning, there really aren’t any problems.

It all boils down to section 25 of the Matrimonial Causes Act 1973. That is where the law specifies the matters to which the court is to have regard in deciding what financial/property settlement would be appropriate in a given case. Essentially, the court must take into account all of the circumstances of the case, the first consideration being given to the welfare of any minor children. That sounds rather vague, but section 25 then goes on to specify particular matters to which the court shall have regard. The second of those matters is so often the crucial one:

the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future”

Now, it should be understood that the needs of one person are not necessarily the needs of another person. For most mere mortals, a basic roof over their head, enough to buy essential food and pay the bills will satisfy their needs, perhaps with some modest pension provision. However, by the following provision of section 25 the court is to take into account the standard of living enjoyed by the family prior to the breakdown of the marriage. Obviously, the standard of living of a millionaire family will be somewhat higher than the ‘average’ family, and thus what they need to maintain that standard will be rather more generously calculated.

Even so, when there is £150 million to go around, there should obviously be no difficulty in providing for the most generous possible needs of both parties and any dependent children, many times over. The problem of needs simply doesn’t exist and, frankly, arguing over the huge surplus is not just unnecessary but unseemly.

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