16 February 2017
Get Real, Ladies!
Divorce nearly always for poorer.
by Lynda Goetz
Divorce, like marriage, should never be undertaken lightly. Unlike marriage, however, it is rarely for richer and nearly always for poorer. So, before you listen to those who would urge you to ‘dump the bastard and find someone younger and better looking’ as you whinge about his bathroom habits, bedroom habits or perhaps more seriously his affair with his PA, consider very carefully.
Two items of news this week have highlighted the way things might be going – probably quite rightly. Baroness Deech, a distinguished academic and crossbench peer since 2005, has tabled a Bill calling for a three-year cap to be placed on most maintenance payments. It has already passed its second reading in the House of Lords and is set to go to the Committee stage. Most maintenance payments tend to be paid by husbands to wives, although they can, of course, in certain circumstances, work the other way around. Baroness Deech argues that the law as it stands is patronising and reminiscent of 19thC attitudes towards women. “People wonder” she says, “why fifteen years after a marriage has ended one person has to keep paying money to another.”
Whilst I do not think the situation is quite that simple, and it is fair to say that many women do put their own career on hold to bring up children (resulting in lower earning capability when they return to the workplace), it is also clear that there is a certain unfairness in a man being forced to stump up maintenance payments, long after his children have ceased to be dependent (or in some cases where there are no children at all) to a woman with whom he has not been in a relationship for many years. In Scotland, this is apparently not the case, and Baroness Deech has modelled her bill to a large extent on that system, although as she points out, her Bill would bring this country into line with much of Europe and most of the American states (so that’s why London is called ‘the divorce capital of the world’ and female celebrities seem to flock over here to get better deals).
The case of Maria Mills who, having received a lump sum settlement of £230,000 in 2002 after 13 years of marriage, plus a monthly maintenance of £1,100, went back to court and was awarded an increased amount of £1,441, caused something of a stir in the press last week. It appeared that Ms Mills had made a series of poor financial decisions leaving her ‘unable to meet her basic needs’. Her ex-husband, who had remarried and had a new family, felt, somewhat understandably, that it was not his job to pick up the tab for his ex-wife’s financial naivety or incompetence. The court apparently did not agree. Would the judges have taken the same view if it had been a man who had made poor investment decisions?
You do not need to be a financial genius to work out that divorce is going to leave both parties worse off than they would have been had they stayed together. Frequently it is the man who is left in a difficult position, particularly where there are children involved and it is deemed preferable that they continue to live with their mother. In such situations an order can be made that the sale of the marital home is deferred until, say, the children have gone to university, and the husband may then be forced to buy or rent a small flat (often creating difficulties with regard to children’s visits). The wife may have the property, but she is almost certainly not going to be enjoying the same standard of living as she was before the divorce. Why on earth would anyone think this was going to be the case?
It seems however that some do. On Valentine’s Day, The Telegraph reported an Appeal Court case where the wife’s barrister argued on her behalf for an increased lump sum on the basis that she should not be “relegated to a house that’s far inferior to that which I lived in during the marriage and that which I had before the marriage.” Katriona MacFarlane also claimed that she was owed compensation for ‘abandoning’ her teaching career to be ‘looked after’ by Dr James MacFarlane. The lady in question is 58, not 5 or 8, but fifty-eight. Any decision she took is one taken as an adult and as an adult, she must surely live with the consequences of her decisions, even if she can justifiably claim they were made jointly? Should she be able to claim compensation at a later date for what turned out to be a bad decision? Mr Justice Moylan rejected her claims and Dr MacFarlane’s solicitor took the view that “This is yet another example of the judiciary taking an increasingly pragmatic approach towards resolving these types of problems”.
Baroness Deech’s Bill is unlikely to make it to the statute books. Nor is it the first time she has attempted to pass a similar Bill. Her first attempt in 2014 was overtaken by the General Election of the following year; although even then her own main hope was essentially that the Government might ‘pick up the ball and run with it’. As she herself admits, although a lawyer, she is not a divorce specialist. Most of those practicing in this area are not in favour of the radical changes she wishes to bring in. Marilyn Lowe, a Family Law practitioner, wrote in her blog at the time of Baroness Deech’s first attempt to initiate change that the law as it currently exists provides flexibility and allows judges to take into account individual circumstances. That may well be the case; it was certainly the view taken by the Law Commission enquiry undertaken in 2012, initially to look into pre- and post-nuptial arrangements but later extended to consider the question of settlements. However, perhaps the greater clarity and transparency and more uniform application of the law, which they did conclude was necessary, might also extend to a slightly less paternalistic approach from the courts at a time when women are still loudly arguing their rights to independence and equality in all walks of life. We cannot have it all ways. Either we want to be treated as adult members of society with equal abilities and opportunities or we are prepared to be ‘looked after’ and infantilised by men – whether they be husbands or judges.
If you enjoyed this article please share it using the buttons above.
Please click here if you would like a weekly email on publication of the ShawSheet
