The recent case of Vaughan v Vaughan, which involved an elderly divorced couple and made the news while I was away on holiday last week, has led me to wonder. How should a husband divvy up the spoils of a lifetime between his former wife and his current wife? When he has continued to maintain them both during his working life, which one of them -if either – should be his priority?

The first wife

The first wife cannot manage on her own, modest earned income following her divorce, and therefore she needs to have her income supplemented by maintenance from her former husband. He agrees and despite her being child-free and able to work, he does not insist on a cut-off point for maintenance even if she is still quite young. Perhaps he reasons that she will be self-sufficient at some point in the future. Perhaps he reasons she will remarry. Perhaps he feels guilty. Perhaps he wants it all over and done with without a fuss.

However the first wife will never get to taste the real fruits of their joint hard work begun and built up during the marriage. The rewards of status and financial success will be privileges reserved for the fortuitous second wife. By the time the second wife marries the husband and has his children, he has become financially prosperous. Together, they have a long and successful marriage.

The husband can always apply to terminate maintenance payments to his first wife, on the basis that at some point she should or has become self-sufficient. But there are a number of cases in which the divorce occurred at a time before wives were expected to become self-sufficient and maintain themselves. Continue reading »

Baroness Deech holds some strong views about divorce and financial settlements. The Times has reported that the academic lawyer, who chairs the Bar Standards Board, is to give a series of lectures this week. Her focus: the thorny issue of who gets what in terms of money after a divorce.  “It is no wonder that England is the divorce capital of Europe and out of step with other European countries,” she says.   Apparently she is going to argue that, put bluntly, women are getting too much, especially in the modern era of equal pay and opportunities in employment. 

The article concludes with a list of “big money” cases in which wives were given very substantial capital awards and maintenance after short marriages.

Given recent decisions such as Hvorostovsky v Hvorostovsky, one can see how all the excitement arises.  Mr Hvorostovsky finds, following a Court of Appeal, decision, that his maintenance liability should increase so that his former wife has some £37,500 per year more than she actually needs!  The reason for this increase was nothing more than the fact that the husband now has a much larger income of his own.  It is all too easy to assess the acute sense of grievance felt by such a husband, particularly where he presumably has to work very hard for this level of earnings where his former wife is able to live a life of leisure. 

The shortcoming of this debate is that it concerns a vanishingly small minority of cases.  Continue reading »

Ivana Trump said, famously: “Don’t get mad. Get everything!” It appears that Julia McFarlane, the former wife of high-flying accountant Kenneth McFarlane, has taken these words to heart.

The judgment in the latest installment of the never-ending divorce saga that is McFarlane  v McFarlane, (2009 EWHC 891) landed on my desk yesterday morning. A judgment from Mr. Justice Charles, it is characteristically lengthy. Thirty-five pages in length, it takes a long time to read . It takes even longer to consider the meaning and impact, this judgment being his Lordship’s interpretation of what the House of Lords may have had in mind (but never expressly stated) by a “deferred clean break”, payable at some stage in the future, by Mr McFarlane to his former wife.

I was in two minds whether to write about the latest twist; after all, what relevance does any of it have to those of us who live relatively modestly in the real world? However, this case has wider implications. It reminds me of a seesaw. On one end: the stay-at-home wife and her children. On the other: the working wife and her children. In the middle, sliding from one end to the other: the husband. Does English family law substantially favour the stay-at-home wife, at the working wife’s expense? Does it curtail a second wife’s freedom to leave her job and become a stay-at-home mum?

Let me explain. Continue reading »

From the Guardian’s commentisfree… blog, 18/03/2008.

Heather Mills may have done well out of her marriage to Paul McCartney. But to get there the couple waged a vicious and unnecessary war

By Marilyn Stowe

Millions of spectators round the world have been following the divorce battle between the McCartneys. It has grabbed media attention like no other case since the divorce of the Prince and Princess of Wales.

It was vicious. It was played out for all it was worth. On the one side: the abhorred but greatly distressed wife, who acts and speaks before she thinks. On the other: a tight-lipped phalanx of the most expensive black-suited lawyers in the country, out for a big win.

And now that it is over, it seems clear to me that there are no winners. Instead, everyone has come away humiliated.

McCartney publicly dumped Heather Mills. He issued proceedings against her based on her “unreasonable behaviour“. Knowing her as well as he did, what did he expect her reaction would be? Deeply wounded, she emerged to fight back in every way she could – and the parties went to war.

If ever there was a way not to conduct a divorce it was this.

Continue reading »

Settle your case on a continuing maintenance basis, and it can come back to haunt you…

For many people, a financial settlement represents the final chapter in a divorce. Generally, it comes to all concerned as a huge relief. Parties can begin to rebuild their lives, putting the unpleasantness of a break-up behind them. For those who achieve a clean break settlement, it will most likely be the end. However, for those who continue to pay or receive maintenance, this is not necessarily the case.

Maintenance may be paid for a period of time, with the court reserving the power to extend that period – or not, as the case may be. Maintenance may cease on cohabitation and will automatically end on the recipient’s remarriage. In other cases, maintenance will have no cut-off date and will only be stopped on the orders of the court, or on the death of the payer or payee.

If one of the parties wishes to bring an open-ended maintenance order to an end, this may occur by mutual consent. Both parties may agree that the time has come for the order to cease, the recipient spouse being able to manage alone.

Solicitors are consulted usually when there is no such agreement, and one party does not want to end or reduce the obligation.

Variations of maintenance orders are expensive and risky. As with the original application for a capital and income award, it involves going through the County Court or Principal Registry in London. The costs will be high – and as a result obtained for either party is likely to be disproportionately expensive. In a straightforward case, it makes sense to negotiate or proceed via the Magistrates Court. This is a simpler and cheaper process. However, when larger sums of money are involved, an experienced Judge will be required to make the determination.

There aren’t any winners in a Maintenance Variation. I don’t recommend it unless it is absolutely necessary, and legal costs are not an issue.

This isn’t all. Continue reading »