Is it morally right that a woman in her forties is not expected to work?

Family Law|February 22nd 2016

As we know, the rules relating to financial remedies following divorce are universal: the same rules apply to everyone, irrespective of who they are and how wealthy they are. Well, that’s the theory, anyway. The practice, however, can sometimes paint a rather different picture.

Take, for example, the case Rapp v Sarre (Formerly Rapp), in which the Court of Appeal handed down its judgment last week. As regular readers will be aware, the case involved a failed appeal by a husband against an order that his ex-wife should receive more than half of the £13.5 million capital assets. I’m not going to go through the details of the case here, but rather concentrate on one small aspect: a finding by the trial judge, His Honour Judge Everall QC, that it was not reasonable to expect the wife to work. The finding, which does not appear to have been challenged, has raised eyebrows in some quarters, in particular I think amongst lay people of rather more modest means than the parties in the case.

The finding may have been a small aspect of the case, but it did have implications. The award to the wife was based upon her needs, and obviously if she had an income (or at least an earning capacity) of her own then her needs would have been less, therefore one would have expected that the amount of the award to her would have been smaller.

At the time that Judge Everall made his finding the wife was forty-seven years old, had no dependents (the marriage was childless) and, as far as we know, she was in good health. Granted, she had not worked for about twelve years and her previous work experience and qualifications appear somewhat limited. Nevertheless, had this case involved a couple of ‘average’ means one would have certainly expected the wife to have been deemed to have some earning capacity, even if relatively modest.

So, what was different about the wife in this case? We are not given the details of Judge Everall’s thought process, but it seems that his conclusion stemmed from another finding he made: that the wife’s income needs, taking into account the standard of living she enjoyed during the marriage, was approximately £170,000 per annum. The argument appears to be as follows: clearly, the wife cannot earn that amount and the amount that she could earn is so low that it would not make a significant impact upon that figure, therefore she should not be expected to work at all.

Hmm. I have to say that I feel a little uneasy with this. My view is that the wife should have been given a small earning capacity, even if it was only, say, £10,000 per annum, and her needs should therefore have been reduced by that sum.

I realise that in the context of the case such an adjustment would have made little difference, but it is not just about this particular case. What sort of message does such a decision send out? That spouses of wealthy people can expect a life of leisure at the expense of their ex, whilst spouses of everyone else are expected to continue to work for a living? In other words, it’s one rule for the rich and one rule for the rest. Particularly in straightened economic times like these, it is somewhat galling for those of us of modest means to hear that someone who is perfectly capable of going to work should not be expected to do so (of course if they choose not to work, that is another matter).

We have, of course, been here before, or at least somewhere very close. For example, back in 2014 Baroness Deech suggested that the divorce system sends the wrong message to women, encouraging them to find a wealthy husband so that they never need to go out to work, even if the marriage breaks down. I’m not sure that I would go that far (although I have no doubt that it does happen, albeit rather less frequently than the Baroness appears to imagine), but the finding of Judge Everall, and similar findings by other judges, does seem to impinge upon a moral boundary, even if it cannot be said to be wrong in law.

The full judgment in Rapp v Sarre can be read here.

Photo by FreddieBrown via Flickr

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  1. Jo Archer says:

    And your point is? If this decision it is NOT wrong in law…

    There is something else about this case which is not typical of a case involving a couple of ‘average’ means; the Judge has decided that this woman’s ‘needs’ are £170,000 per annum. I don’t imagine that stacking shelves in a supermarket at £10,000 per annum fits in with the lifestyle that she enjoyed throughout her marriage. You might as well ask what the husband’s earning capacity was at the start of their marriage (perhaps only £10,000 per annum too!). Maybe the Judge was trying to reflect the fact that all the time they were married the husband’s earning capacity increased while hers did not – and that very soon the husband will be able to catch up with, and far outstrip, what appears at this moment to be a bias in favour of the wife.

  2. Jo Archer says:

    And here’s another thing, I very much doubt that this judgement is going to influence the behaviour of many women, at all. For one, any strategy based on the unpredictable and vague machinations of our legal system is highly risky and, secondly, how many of us would ever find ourselves with the option of marrying a rich man for his money? Quite apart from the fact that the rich man would hardly enter into any such contract unless he was getting something in return…the cache of displaying a well-presented, younger woman on his arm, to display his alpha male status to the rest of the pack, possibly?

    No, I find your view of this case to be highly mysogynistic.

  3. DC says:

    Hi John
    Many thanks for your continual posts. They are compulsive viewing!
    I’ve wanted to post a comment for a long time and this post seemed the best to comment on.
    I have been paying spousal maintenance for 8 years now at £1200 per month. The judge originally set it for 3 and a half years in order that my ex wife could sort her life out and secure more than just part-time employment, but wouldn’t include a section 28a as he believed ‘circumstances do change!’
    After that term we went into further litigation but my ex-wife claimed depression had stopped her from gaining more realistic employment so the judge extended the term indefinitely although he insisted my ex sort herself out and get back into full-time employment asap.
    I am just about to have my wages cut by 20k a year and so will need to go back to court yet again. On the basis that my ex got the majority of our capital, including the house, when we divorced and has since received over 120k in maintenance, I am deeply concerned that a further order will go against me and I will be forced to keep paying. She is perfectly fit to work full time and yet hides behind the depression whilst otherwise leading a perfectly normal life. Whilst the court keeps ordering that I pay her, she will never have the want or need to have to pursue full-time employment. A total ‘catch 22’ but of course, the court says it has to er on the side of caution and yet also states that, once she can fend for herself, I can cease payment!

  4. A says:

    I am shocked by Jo Archer’s comment, which illustrates a fundamental wrong of English divorce law.

    In England, divorce has the effect of continuing the financial relationship between the parties, and is not a proper divorce at all. In fact, English law ignore the parties’ desire to end the relationship in that respect.

    In the example given by John, I can see no moral justification to grant a £170k lifestyle allowance to the ex-wife. When the relationship ends, it ends, and there no moral ground to continue the financial benefits of the relationship.

    Of course, if a party has contributed to building the wealth of the other party, then this should be accounted for. And neither party should be left on the streets (and kids provided for, of course). However, that does not require £170k. Moreover, all parties should be expected to get a job – regardless of how much of a lifestyle change that might be. Since when is someone too precious to have to work?

    The lifestyle comes with the relationship. End the relationship, end the lifestyle. Oh, and get a job.

  5. Stiitchedup says:

    “and, secondly, how many of us would ever find ourselves with the option of marrying a rich man for his money? Quite apart from the fact that the rich man would hardly enter into any such contract unless he was getting something in return…the cache of displaying a well-presented, younger woman on his arm, to display his alpha male status to the rest of the pack, possibly?”
    That kind off gave the game away…. It would appear for Jo, the option of marrying a rich man trumps the option of marrying a man she genuinely loves.

  6. Working mum says:

    How can it be fair that a woman can enjoy the high life when her ex-husband has to keep working like a dog to pay for it?
    (*Edited by the moderators)

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