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