I am no fan of The Centre For Social Justice, but Harry and I share some common ground. We both support marriage. Like him, I also support efforts to save marriage – although by the time I become involved, it is often too late. At the Oxford Union, although I was happy to argue that the institution of marriage was “outdated”, I didn’t argue that there is no point to marriage.

Recently, however, I’ve started to move away from my usual position. Seeing new clients recently, I have noticed that a high proportion of our new instructions are from clients who have already been married at least once before, and who are determined to end a second or a third marriage.

We already know that a second marriage is slightly more likely to fail than a first marriage. Even so, the proportion of instructions is significantly higher than usual.

Is this a coincidence? Or has the recession hit such couples particularly hard? Many of these clients have told me of depleted asset values, higher debts, failed businesses and so on. Perhaps the economic downturn has affected the prospects of marriages which, statistically, have always had a higher failure rate. Perhaps these marriages would have ended anyway.

I have begun to wonder: is a second marriage genuinely worthwhile? Or should couples be advised against second marriages, partly because of the increased probability of divorce, but also because of the potentially serious fallout if the marriage does fail?

In my experience, the recipe for the breakdown of a second marriage is often as follows:

• The parties have children from a first marriage, and perhaps grandchildren too.
• They had not known one another for any great length of time before getting married.
• They have high expectations for the marriage and for their new partner, which remain unfulfilled.
• Within a short time, each party realises that the second marriage was a huge mistake.

In some cases, the breakdown of the marriage is prompted by guilt: at least one of the spouses has left a partner to start again. That guilt, coupled with a desire to be with children who may have rejected them and are now growing up without them, can sound a death knell for a marriage. Too much bad blood. Too much blame. Too much baggage.

Some second marriages break down because the gilt on the gingerbread wears off faster than it did the first time around. Once the courtship is over and the ring is on the finger, spouses stop playing the roles of Sir Lancelot and Queen Guinevere.

It also strikes me that in many cases, the parties are less dedicated to working through their problems than they might have been the first time around.

Perhaps they are bruised by past experiences, and are quicker to accept that leopards don’t change their spots, or that the marriage has indeed broken down irretrievably. Either way, they certainly seem to instruct lawyers more briskly than “first marriage” couples. Hence I am seeing broken second or even third marriages, for which the marriage duration has been that much shorter.

It gets worse.

When a second marriage breaks down, the consequences can be more acute than the parties suppose. After all, if it’s a relatively short marriage, then surely the financial settlement can’t be that bad?

Unfortunately, as I’ve explained previously, it really can be that bad. The parties are older, and their reasonable needs must be fully considered and provided for. Marriage turns two people into a legal partnership. Assets are up for division and, where needs must, assets acquired before the marriage cannot be fully ring fenced. Divorce can often require the wealthier party to make provision for the poorer party, for the rest of that person’s life. This can mean provision of a mortgage-free home and maintenance or a lump sum, sufficient to last a lifetime.

Clients are aghast when they learn that following a short marriage of say, five years, they may have to pay what they consider to be a disproportionately high settlement. In a lot of cases, clients have spent their lives prudently accruing wealth and, until the marriage, almost all had been destined for their children and grandchildren.

In many cases, a second marriage has seemed to me, an objective bystander to be an almost bizarre, and clearly avoidable, mistake.

So would I recommend marriage the second time around… ever?

I’m not so sure that I would. A marriage founded upon guilt, or upon unrealistic expectations, can founder. Once the romance has worn off, what is left?

Taking a detached, legal perspective, it is true that there are tax breaks from which older couples can benefit if they marry. These can include inheritance tax and capital gains tax exemptions. But are these enough to offset the risk?

Some of you will think that a prenuptial agreement is the answer. Again, I am not so sure. Lawyers pitted against prenups will keep getting cleverer and cleverer, no matter how the law may change. It’s their job. Older and wiser, bitten once… Surely it is better to have the freedom to walk away, than to have to test the validity of a prenup, making reasonable provision by will for a former partner to avoid a claim on an estate?

Could it be that older couples, brought up to believe that marriage is the “gold standard”, are now discovering (again) that it isn’t?

Morris Room, Oxford Union

It would be fair to say that the past week has been an eventful one – not least because on Thursday, I addressed the Oxford Union. I had been invited to debate before the house, speaking in favour of the motion, “This House believes that marriage is an outdated institution”.

Oxford Union debates are always popular; I was honoured to receive the invitation, and delighted to accept it. Other speakers in proposition included Joanne Edwards of Manches and Ella Robertson, a talented student from Balliol College. Sadly and predictably, our motion fell, but it was quite an evening. The speakers in opposition included the journalist Catherine Blyth, author Adele Parks and Harry Benson of the Centre for Social Justice. Arriving at the Oxford Union, walking up the crunchy gravel path, I glanced through a window to my left and saw Sir Malcolm Rifkind, Chair of the Intelligence and Security Committee, speaking to some of the students. Had it been his son Hugo, whose columns I read every week in The Times, I would most certainly have joined in!

Before the debate I was welcomed by graduate Pippa Neal, who organised the debate (flawlessly, I might add) and kindly given the Union’s Morris Room for my own use. Then it was onto drinks, photographs and dinner around an impressive, horseshoe-shaped dinner table. I was seated at the top, between Oxford Union President James Langman and Miles Coates, a student and political officer of the Conservative Association who was opposing the motion. After signing the book, the debate took place in the imposing debating chamber, next to the Union. It looks very much like Parliament, no doubt intentionally, nurturing as it does future politicians. The chamber was packed, upstairs and downstairs. The debate was preceded by the procession of Union officers and the speakers to their seats, accompanied by applause and cheers. You couldn’t help but relax and smile at such a welcoming audience.

The debate lasted for two hours, all conducted with good humour and very keen brains and flair, especially amongst the students. I was sitting next to Niall Gallagher, a graduate and high flying investment manager, who spoke in favour before me.  As Adele Parks waxed lyrical about all the sex you have when married, he jumped up with a “point of information”.

“It’s quality, not quantity”, he said to roars of laughter from the audience! I wouldn’t be surprised if he ends up in politics.

Afterwards there was a very welcome and relaxing reception.

For me, it was a surreal and entirely fabulous experience. The best way I can describe it is that it outdid anything in a Harry Potter novel. All around the Oxford Union building hung photographs of famous people who had taken part in the debates. I felt deeply privileged to be taking part in one such debate. And as you may discern from the fabulous wallpaper (above), the Morris Room is named after William Morris. By concidence, Morris was my maiden name, so it seemed doubly fitting!

My husband Grahame came with me to inspire confidence. He did a great job. It did seem ironic, speaking in favour of the motion when I was the longest-married speaker there! My argument was that the institution of marriage had been stripped of its value and significance by family law reform.

As for the institution of marriage: I have copied my notes below, and will leave you to decide…

The debating chamber.

Marriage. Is it truly “magic glue”? Or are wedding rings now regarded as “the smallest handcuffs in the world”?

To begin, let me tell you a little about my own background and experience of the institution of marriage.

I went to university at a time when many women worked only until they got married at about age 20. Then they stopped to give up work once the “family breeding programme” was under way.

Me? I decided to become a lawyer.

For the past 30 years I have represented an average of some 300 clients a year; I have worked with thousands of divorcing men and women, across the entire social spectrum, in this country and across the world. During this time there have been significant changes in our society. Most of all, changes to how we value marriage and how we define families.

We have moved light years from the traditional 1960s family. What is a traditional family nowadays? The composition of family has altered to such an extent that it has dramatically overshadowed the role and public perception of marriage. Nowadays, family practitioners, lawyers, judges, counsellors, therapists, social workers, all deal with ‘families’ not marriage, in family law. A family might consist of a childless couple, gay or straight. A family might consist of a single parent or two parents of one two or more children. There could easily be three or even four “parents”: step-parents, adoptive parents or surrogate parents, biological parents and non-biological parents, gay parents, straight parents or grandparents who are acting in loco parentis. There are mindboggling permutations of what a “family” means today, and it is nothing to do with marriage. No-one who works with families in crisis defines a family by virtue of a marriage certificate.

Tonight you have been told about the importance of marriage and its magic, glue-like qualities. You have heard about the psychological value of the marital bond. I don’t dispute any of it.  But being happy within marriage is a different argument. Nobody should ever be denied the right to marry if they wish, provided it is lawful to do so. Our debate tonight is completely different and we mustn’t get sidetracked. Is the institution of marriage outdated?

As a family practitioner I think – albeit sadly and with regret, because I know firsthand of its benefits - that it is.

You have been told that the collapse of cohabiting relationships, rather than the collapse of marriages, is to blame for the rise of family breakdown in this country. You have heard that, far from being outdated, marriage remains the “gold standard”; that in fact, family life will be strengthened if the importance of marriage is successfully reasserted.

However the facts speak for themselves. In the 16 to 44 age group, there are now more couples cohabiting than there are married couples. Various reasons have been proposed for this decline, and you have heard some of them tonight. You must make up your own minds.

But as a family lawyer, I know of one very good reason why.

Take for example, the new Leader of the Opposition. Not so long ago, an unmarried man could not hope to become an MP. Yet here we have a happily cohabiting, non-married father of two – and who knows, a future Prime Minister of this country - who recently said of his live-in barrister partner and the mother of his two children: “She’s not my wife…Thank God for that”.

It is because of the differing perception of what marriage now means to a man and a woman that marriage is set to continue its slide into obsolescence.

Speaking at the Oxford Union

Let me explain!

The family law blog that I write prompts regular comments and emails from men of all ages and occupations.  Some of these men clearly believe that our family law is biased towards women to such a degree that, as one wrote recently, getting married is no longer a “viable option”.

To quote another: “It’s just not worth it”.

Marriage used to be a good investment for a man. His wife would cook his meals, clean the house, do the shopping, produce all his children and look after them, too. If his marriage failed, he would have to dip into his assets - but he would only have to hand over a few morsels. It was a win-win.

Women rarely pushed for divorce not because they revered the institution of marriage, but because they couldn’t afford the consequences thereafter.

Maintenance payments were small and hard won; matrimonial property division did not favour the wife. The lowest point surely was Dart v Dart in 1996, when the wife was awarded less than one-fortieth of a £400 million fortune – and was also made to pay her husband’s costs.

But by then, the tide had already turned. More women were going to work. Fewer women were financially dependent upon their husbands. Women could control the ‘’breeding programme.”

And as women became self-sufficient, more wives left their husbands. In the landmark divorce case White v White in 2000, judges were thereafter instructed to divide the matrimonial assets equally. Sharing? A starting point of 50/50?
Not likely!

The repercussions of that ruling are heavily felt by the wealthier party, usually the man, today. If a marriage breaks down, a “poor” husband can stand to lose most of his capital and up to half his income. A rich husband now has the equal sharing principle to contend with. He stands to lose millions to a wife who has never worked, who stayed at home and raised the children – something conventional 50 years ago, but in the post-White age, such a woman is now styled a “gold digger”.

In my experience breadwinners, most of whom are men, abhor these new rules. It is no coincidence that as the marriage rate declines, cohabitation, which comes without the legal strings, is soaring in popularity.

And how ironic that marriage is regarded as “old fashioned” when it is currently cohabitation, the supposedly modern alternative, which harks back to an earlier age.  There is no sharing and no reasonable needs to be met if a long term relationship breaks down.

Thus marriage, a patriarchal institution that no longer favours men, has slowly but surely, been rendered void of its value and significance. This is by virtue of current law, which governs it, the customs practiced within it and the lure of cohabitation, which remains unregulated by law. Although I was a member  of the Legal Advisory Group to the Law Commission, which recommended increased legal rights for cohabitees, so far the calls appear to have fallen on deaf ears.

Instead there have been moves to restore the institution of marriage to its original status, at least in part. There are calls to invest a gargantuan £30 million into “relationship education”, and calls to “incentivise” marriage by restoring tax breaks for married couples, although these had no discernible effect when they existed previously. Then there are calls to legalise prenuptial agreements, to put “gold diggers” back into their deserved financial straitjackets. All to save marriage. But whatever the moralisers try and do, it is too late. The genie is well and truly out of the bottle.

Why trouble to marry, if it comes to deciding whether to walk away scot-free, or walk away financially decimated? It’s a no brainer, isn’t it? As yet another male reader wrote on my blog: “Fewer people will get married as the divorce courts lack credibility”. Case proved?

Marriage is no longer a “magic glue”. In the 21st Century it has finally come unstuck.

The latest report from the Centre for Social Justice

Have you seen the latest report from the Centre for Social Justice? I am no fan of this right-wing think tank, founded by Iain Duncan Smith MP, which left me flabbergasted last year when it published patronising proposals for “family relationship hubs” and enforced “cooling off periods” for couples whose relationships had broken down.

It may surprise you to learn that in the CSJ’s latest report, Family breakdown in the UK: it’s NOT about divorce, I find something to like. The report’s author, one Harry Benson, brought his own marriage back from the brink and has thereafter dedicated himself to saving others’ marriages. He founded the Bristol Community Family Trust, which runs marriage relationship and mentoring courses.

Of his bona fides, there can be no issue. I admire his sterling work to try and keep couples together. I have long thought that the abilities to recognise when marriages are in trouble, and to help the parties through their problems before the “uncoupling” process has gone too far, are vital tools in saving marriages that might otherwise be doomed.

My opinion of the Centre for Social Justice, however, remains unchanged. I find much in the latest report to dislike, and I have wearied of this think tank’s sugar-coated vision of marriage as the magic cure for UK families’ shortcomings. In short: while I agree that marriage is the “gold standard” for couples, particularly those who have children, I do not believe that a broken marriage can be held together by divorce law aimed at forcing couples to remain married. Indeed, I believe there are plenty of instances of children who have been gravely psychologically harmed by remaining with dysfunctional parents who loathe each other.

My son Ben wrote his dissertation on this same subject. It is a complicated study, based on many authoritative sources in the field. He writes about the uncoupling process and the need for education about this, but he parts company with the Centre for Social Justice on the wisdom of keeping failed marriages together. This he rejects as too late, since the uncoupling process to which he and Benson both refer is, by the point of divorce, complete and irreversible (you can read his full dissertation at the bottom of this post).

Family breakdown in the UK: it’s NOT about divorce is a short report that focuses on the costs of family breakdown in families where there are children. It divides parents into married, cohabiting and non-cohabiting groups.

The report’s data and charts show that divorce is “not the problem”, in that it “accounts for £1 in every £7 of support for lone parents with children under 5″. So the focus falls to unmarried couples, who account for £6 in every £7.

Mr Benson’s figures appear to be taken from a number of sources, including the Office for National Statistics. He states:

By mapping family breakdown data amongst parents with five year old children from the Millennium Cohort Study onto national birth data from ONS, it is now possible to establish the specific contribution of divorce to lone parenthood during these crucial early years.

I must admit, however, that I find the formula used to calculate costs somewhat odd:

The cost of family breakdown for each birth cohort by category = (the number of births) x (the average break-up rate) x (the average number of years that family breakdown takes place before age five).

I am not a statistician, but I am unsure why the costs have been calculated in this way. Perhaps a more detailed explanation should have been included, for clarity.

The report concludes that because unmarried couples with children are far more likely to split up than married couples with children, and because family breakdown amongst unmarried couples is so much more expensive, the answer is to encourage unmarried couples to get married: “reasserting marriage is contentious but is vital”.

Personally, I don’t think this adds up at all, in that it presumes a ring on the finger is some sort of magic talisman to ward off family breakdown. As if a wedding turns a vulnerable relationship into an invincible one! It doesn’t. When a marriage reaches the divorce stage, that marriage has failed. The uncoupling process is complete.

It is a shame that the conclusion is so predictable, because the raw data is interesting and I can’t help thinking that plenty of other highlights and ideas could have been pulled from it. For example, the results show that couples who have children but who do not live together have a higher breakdown rate then cohabiting couples and account for disproportionately high costs. This nugget is almost brushed aside, however, as the report’s focus is trained upon cohabitants and married couples.

Does this report feed into the agenda of keeping failed marriages together? For various reasons, it doesn’t add up for me. What would add up is a recognition of the need for improved legal rights for cohabiting couples, for all the reasons that I have described in previous posts about cohabitation. if the government is going to remain determinedly blinkered on this issue, no doubt we will be seeing more reports like this one from the Centre for Social Justice and its ilk.
Benjamin Stowe – A Socio-Legal Study of Divorce and Family Law in England and Wales

He resembles his mother physically and he has her gift for connecting with people. He is a credit to his family. For me it was seeing Diana’s ring again – given as the greatest token of his love that I suspect Prince William could have given his future bride – that set me off thinking of Diana and the enormous love she had for her boys. That ring, I am certain, has created a deep well of emotion in all those people who are diehard Diana fans. Not forgetting those who simply felt sad for a motherless boy who, despite everything he has, has no mum to be there at such a wonderful time in his life. So he involved her in the best way he could: through her engagement ring, which he gave to Kate.

The story of how he carried Diana’s sapphire and diamond ring in his rucksack in Kenya for three weeks until he popped the question made me laugh. Yes, that’s just the thing a boy would do! (Even though I bet there were one or two bodyguards around to make absolutely certain it never got lost.)

In law, an engagement ring is treated as a gift to the future bride and she is entitled to keep it, unless it is made clear beforehand that it never becomes her property absolutely. Although I suspect that the latter has happened here, I have no worries for this couple. Vultures in the press are already circling, with some commentators suggesting that because of the failure of his parents’ marriage, or because it was his mother’s ring, the ring shouldn’t have been given at all. Nonsense. He loves its symbolism. Kate clearly loves it. Why wouldn’t she love it?

Others, recalling that Charles and Diana divorced acrimoniously, have urged Prince William and Kate to sign a prenuptial agreement, to avoid future marital rancour. Again, nonsense.

Apart from the distasteful nature of such waffle, in my view the existence of a prenup would likely exacerbate any future difficulties. The Prince of Wales clearly provided handsomely for the late Princess of Wales, whose needs were generously met without a prenup. There is no reason to suppose that this wouldn’t be the case for Kate in the future. She couldn’t expect anything more and I doubt Prince William would expect anything less.

I hope that unkind speculation does not put our future Queen under additional and unnecessary stress. As it is, she faces the prospect of an imminent state wedding knowing billions of people from all over the world will be watching her. As Mr Justice Mostyn put it recently in a speech to Parliament – and at that time he had no idea of what was coming – divorce lawyers should definitely not be present at a wedding.

Most lawyers will never put their own money on a racing certainty. But in this case, I am prepared to do so.

I do not doubt that this marriage will work. I think Kate’s parents’ solid marriage and their discreet but solid support for their daughter will help. I hope she always stays as close to them as she is now and doesn’t allow her altered status to affect her family relations. I doubt it, because those parents don’t strike me as the type to give up on her either. They appear to be the souls of discretion.

I watched the television interview in amazement as Kate revealed that, after Prince William had asked her father’s permission to marry his daughter, she didn’t know if her father had told her mother. How could she truly think he hadn’t told his wife such incredible news? The future King of England had proposed, their daughter had become a future Queen-in-waiting… and he hadn’t told her mother?

I tried to imagine myself in that scenario or in fact any scenario affecting my son, and not being told… I found it difficult. Then I suddenly understood that all that discretion, which exists even between family members, helps them to protect Kate in a world that is far removed from the everyday. It may also explain why Kate has never had a “proper” job. She couldn’t afford to risk ending up on the wrong side of any scandalous newspaper story.

So with parents like these, and a husband who is more like “one of us” than any other senior member of the Royal Family, I’d put the odds on a successful marriage at 100%. And if the delicate issue of a prenup is raised by a well-meaning but cautious courtiers, my advice to William and Kate is: bin it – and them – as fast as possible!

Do you ever wonder what it would be like to attend a wedding and not go through all that rigmarole, to just relax all the way through?  Especially during the best part: when you see the bride come down the aisle to be given away by her parents, about to start a new life with her partner.

This Monday I “attended” just such a beautiful wedding and, I think, in the best possible way! Let me explain…

It was 6 pm and the sun was setting behind the pale honey walls of the Old City of Jerusalem as Mount Scopus lay in the distance. I was standing high up on the balcony of our hotel watching a wedding scene taking place on the terrace below.  I could see the hustle and bustle of lorries and cars still thronging up the hill beyond as they entered the Old City through the Jaffa Gate. Alongside the gate stands King David Tower and there were still lots of tourists walking around the old Roman walls during this cooler part of the day.  I could see churches, synagogues and mosques spread across the city on rolling hills. Somewhere in the distance out of view is the Western Wall, all that remains of the Jewish Temple destroyed by the Romans in 70 AD and which stood on Temple Mount, the holiest place in Judaism. The wedding below me was taking place under a canopy facing towards the Western Wall.

This city of Jerusalem has seen its share of historical battles and invaders. With the Persians, Romans, Arabs, Crusaders and Turks all invading and laying claim to it at various times.  Sadly, as we know, conflict continues to this day and will do until all its peoples make peace. How wonderful would that be?

Archaeological digs keep revealing the fascinating history of the city. During the reign of King Herod a fortress was built alongside the Jewish temple on Temple Mount, which was itself built by King Solomon.

There is in fact a large-scale model of Jerusalem in Roman times, with the Temple still erect before its destruction, which stands in the grounds of the newly renovated Israel Museum. The museum is opposite the Israeli Parliament and the Supreme Court of Israel (below) and is where I had earlier spent most of the day. There is a beautiful Rose Garden separating the two.

The stunningly reconstructed buildings at the Museum are home to galleries full of European impressionist and modern art, including pieces by Renoir, Cezanne Pissarro, Gauguin, Modigliani, Chagall, Magritte and Dali. You could easily spend hours there taking them in, but there is much more to see.

There are 15th and 16th century paintings too and the collection includes two Rembrandts: one of St Peter in prison, the light framing his elderly face of resignation unaware that the prison shackles would soon fall away; the other of his wife Saskia. There is also a huge painting by Nicholas Poussin from 1625, presented to Cardinal Richelieu, which features the Roman destruction of the Temple. It is quite moving in that it magnificently depicts the battle and tragedy taking place.

There is also a large gallery of some of the first photographs ever taken and several galleries devoted to modern 21st Century Israeli art. Again you could spend hours here too.

But I suppose because I am Jewish, and a family lawyer, I was particularly taken by the collection called Rites of Passage, which included the clothing and religious artefacts of Jewish families from across the world and down the centuries. No matter how far apart and no matter how long ago, I could see how similar they all were.

The theme Rites of Passage centred on birth, marriage and death. Marriage within this context isn’t portrayed as the “gold standard” as opposed to cohabitation; rather, it is depicted as a deep-seated, spiritual and religious part of the circle of life for all those Jewish communities featured. Whether the bejewelled Yemeni bride, or the brides and grooms of Afghanistan, China, India and other remote regions on earth, all had similar Jewish marriage ceremonies, similar rituals at birth and on death and their communities managed to survive, somehow and in some form.

I then visited a building called the Shrine of the Book. This is a fabulous building, which stands in the grounds of the Israel Museum and houses the Dead Sea Scrolls. You don’t have to be religious to appreciate the Dead Sea Scrolls’ historical significance. Discovered in 1947 and preserved in jars in caves by the Dead Sea, they are now housed in this building. The white roof mimics the top of a jar; the bottom lies underground and is only accessible down some steps. Here you can view the entire scroll of Isaiah, which has been saved intact in a real jar.  You can also walk around and see other fragments of the bible, with all the documents found scientifically dated from 150BC to 70AD.

In the same building you can also see the Aleppo Codex, which is a bible written in Jerusalem in the 10th century and saved from destruction by the Crusaders. It was smuggled to Syria and then to Egypt, before being returned to Jerusalem in the 20th Century.

I was knocked out by the fight that Jewish people have had through the centuries: scattered throughout the world by the Roman destruction of Jerusalem – and yet, still managing to survive.

The central roles played by birth, marriage and death, and the power of the Rites of Passage to preserve a people and its beliefs stayed strong in my mind after I left the museum.

I returned to my hotel feeling dazed. There was so much to see, assimilate and think about. Things you take for granted in a material world.  On reflection I don’t think it matters what religion you may be, or even whether you are an atheist, an agnostic or nothing at all. Every one of us can always appreciate the beautiful things that life has to offer. Some lives have been filled with tragedy that at the time seemed to be meaningless sacrifice but, years later in retrospect, have played their part in the journey for survival.

But other lives are filled with joy and achievement too, whether it is spiritual, artistic or architectural and they survive the generations. The Rites of Passage all play their own part. The common feature of everything I saw was the desire, will and passion to survive and, above all, to preserve and hand down for future generations all the traditions, customs, art, music and spiritual values. Some of these are still being passed on 2,000 years later, while the 500-year-old artwork is relatively young!

I was standing on my balcony trying to take it all in, looking out over this fascinating city, the ancient and the modern, and drinking a quiet toast to the spirit of survival with a huge glass of chilled white wine when, unexpectedly, the music of Leonard Cohen’s Hallelujah began.

The melody was the same, but the words were different. It was the well-known Israeli singer Ohad Moskowitz singing Boi Kala, which translated means come my bride, come my beloved – and then I was really overcome after such a wondrous day.

And so I watched the bride walk with her father under the canopy. The Rites of Passage were continuing and so were my hopes for eternal peace in Jerusalem, the Eternal City.

PS. Congratulations to Judy, David and their families on their marriage at the David Citadel Hotel in Jerusalem on 23 August, 2010. I wish them every happiness in their life together.

Image credits: emileaguso, www.goisrael.com, emileguso.

This post won Family Lore’s Post of the Month Award for July 2010.

Yesterday the Court of Appeal made a landmark ruling that has been described as a “cheat’s charter”. You can read the details here. I must warn you in advance that this is a lengthy post; however I would like to explore the horrifying implications of this ruling for divorce cases up and down the country. We will begin with an ordinary couple, and we’ll call them Jim and Mary.

Jim is a postman. He is married to Mary, a factory worker on a production line who gets paid £250 in cash every week. He doesn’t know what she does with her money. Mary decides to divorce Jim after 25 years of marriage. She has started an affair with Fred, his best mate. Jim is distraught. Frantic, he comes across 10 bank books and some Premium Bonds buried under some papers she has kept in her drawer by the bed. There is no lock on the bedside drawer and after 25 years, Jim knows exactly where to look. He can see that Mary has been quite cute, and the bank books show that she has managed to save a total of £50k – every penny she has earned in her working life – while he has supported her and their children. He notices she has even had a few wins on the Premium Bonds, about which he never knew. Furious, he phones his solicitor John, to tell him what he has discovered.

“She has £50,000!” he tells John, totally shocked by the discovery. “Ten bank books, wins on the Premium Bonds – I never knew! She was living off my money and all the time she was squirrelling away her own. Can I bring a copy of everything that’s here over to you?”

This time two days ago John would have said of course you can. Today he can’t. Because if he does he may be opening himself up to a civil claim against him and his firm by Mary, for breach of confidence and more besides. He wouldn’t be receiving the copy documents innocently. He would know that Mary doesn’t know he has them. And he would know she wouldn’t be best pleased about it. So even though John is acting as a solicitor in Jim’s best interests and putting the best case he can to the court – which is what Jim is paying him for – Mary could sue him.

“I’m afraid you can’t bring copies over” he tells John. “And what’s more, you can’t copy the bank books – or anything else for that matter.”

“Why not?” howls Jim. “It’s proof she has plenty of money! Surely what’s hers is mine because, sure as heck, what’s mine has been hers!”

“The House of Lords are up for sharing all the assets from an equal starting point”, says John patiently. “And I agree with them about sharing; but unfortunately the answer is still no, you can’t copy anything. However do try to remember what you have seen, because it might be useful if she doesn’t declare it in a few months when she has to produce her Form E disclosure.”

Jim is flabbergasted. “I was never good at memory games!” he cries. “In fact, I can’t remember now what I saw in that drawer except there were ten bank books and some Premium Bonds.”

John tries to calm Jim. “I can’t tell you very much about the law, because the law about what you can do and can’t do is about as clear as mud right now. A new case has come out and shaken everything up. So all I can tell you is that if you copy the bank books, you are opening up a can of worms for yourself as well as for me. And anyway, I can’t see the copies because if I do, there is a chance that Mary will try and get me thrown off the case! You never know, she might disclose it when it comes down to it.”

Jim is sceptical. “Why should she disclose her secret £50,000, if she has kept it secret from me and from the kids for 25 years?”

John sighs. His mind is heavy with additional concerns. Staying in practice, keeping his indemnity insurance policy intact… These are more important to him right now than his ranting client, even if Jim does have good reason to be annoyed.

“All I can advise you to do is to write down what you can remember. Then, if Mary’s Form E comes in a few months and it’s not on there, we will have to fish about for information.

“It’s going to whack up your costs by a few thousand pounds I’m afraid”, he adds, conscious of the requirement to give full costs information. “But at least you and I will be obeying the letter of the law… whatever the law is. I will put my increased cost estimate in the post to you tonight…”

Imerman v Tchenguiz

You might find the above conversation rather absurd. I do. However it is a conversation that thousands of lawyers across the country will be having with their clients. All this has come about as a result of the Court of Appeal judgment yesterday in the case of Imerman v Tchenguiz, which was heard together with the case of Imerman v Imerman. I think it is a pity that both cases were heard together, because it seems to have tainted Mrs Imerman when I think she has a very arguable case. I will explain why.

For those new to the case: Lisa Tchenguiz married Vivian Imerman, the former owner of Del Monte Foods. Her brothers are the property tycoons Robert and Vincent Tchenguiz. The three businessmen shared an office.  When the Imerman marriage broke down, the Tchenguiz brothers locked Vivian Imerman out of the office and downloaded between 250,000 and 1.5 million documents from his computer, which they then handed to their sister’s divorce lawyers. They did so because they believed he had no intention of making full and frank disclosure of his finances. They took the law into their own hands and as to what they did, there is no doubt that they were wrong.

As you may have read, the Court of Appeal has now ruled that the information obtained by Mrs Imerman’s brothers could not be used to support Mrs Imerman’s claim in her divorce case.

Is there a case for “self help”?

In a previous post about Hildebrand documents, I discussed the concept of “self help”. This, surely, was the most spectacular case of “self help” imaginable. It was an extreme example, not least because Mrs Imerman had nothing to do with it. She and her solicitors simply received the documents. Although there is no excuse for what the brothers did, surely when it is between husband and wife, there is a difference?

Here are some further questions.

• What is wrong with a measure of self help when parties have entered into a marriage contract and therefore both have a legal entitlement to share in all the assets of the marriage?
• What is wrong with one party taking a small measure of self help to ensure that all the assets are disclosed?
• If you come across documents in your bedroom or your kitchen or anywhere in your home, why does it matter whether they are yours or your spouses? You are both married to one another, aren’t you?

I would also refer you to the Court of Appeal judgement in White v Withers, about which I have already posted. You will see there was a divergence of opinion about harmless self help, such as that required by Jim. Lord Justice Ward said any self help was illegal; Lord Justice Wilson said that it was not, and that it could be justified in law.

Yesterday the Court of Appeal shrugged off the concerns of the great family lawyers, Lord Justice Wilson and Mr Justice Mostyn, the latter of whom has recently expressed practical views of the realities facing couples in divorce proceedings, saying that he saw nothing wrong with a spouse downloading information about her spouse’s finances from a family computer to which she has legitimate access. I agree with him because – as we family lawyers know for sure – without a measure of self help, some spouses would simply “get away with it”. Section 25 of the Matrimonial Causes Act 1973 would appear to provide a defence to a measure of self help.

Instead, the Court of Appeal held that between married couples there is still an entitlement to privacy between them. Perhaps, but in relation to financial disclosure I profoundly disagree. It means that a married couple is entitled to privacy from one another in relation to what are, after all, matrimonial assets.

Back to the time of Mr Bumble?

For me, the Court of Appeal’s decision is a throwback to the Victorian age – from which I thought we had long since escaped.

When I got married I entered into a solemn contract with my husband, which means that what is his is up for sharing and vice versa in terms, heaven forbid, of divorce. I therefore see no reason why I couldn’t go in his bedroom drawer or log on our family computer to download all the information I want about his share of our  joint finances. He could download information about mine, and he would be very welcome to do so. I am not his Victorian wife living in secret from him. I am his 21st century partner and I am entitled to know everything about our financial position, as he is too.

In the event of a divorce, every single penny of a couple’s assets are up for division, because of each party’s entitlement to share in those assets, which is fully enshrined in law. That is the case regardless of who owns them before a court decides. It doesn’t matter whether he has more than me, or I have more than him. It will all be taken into account, because we both have an entitlement to the assets by virtue of our marriage. How the assets will be shared however, is a different argument.

We know that since White v White, there is no distinction to be drawn in law between a homemaker and a wealth creator in a marriage, and that is right. If the wealth creator tries to pull a fast one, why should the homemaker be blamed for taking reasonable steps to protect what is already hers for division?

Unfortunately the Court of Appeal yesterday was dominated by judges who are not family lawyers and who have little experience of the realities of dealing with everyday cases such as we lawyers deal with across the country. Imerman is the most extreme case possible in terms of the vast wealth of the parties involved and the extreme lengths to which the brothers went to help their sister. A husband and wife are not two commercial entities whose entitlement is still to be determined, and then their share. They are the people who have made a lifelong contract, share the same house, the same kitchen and the same bed.

Lord Justice Wilson in White v Withers and Mr Justice Moylam, who heard the Imerman case in the court below, are pragmatic family lawyers. They know from long experience how family law operates and how vastly different the issues are from mainstream commercial law. That their views were hatched, matched and despatched yesterday was a sad day for family justice, and for the meaning of the marriage contract, which I believe was devalued by that decision.

There is, I believe, room in our legal system for differing approaches by differing divisions of the legal system. It cannot be right that in the pursuit of justice married couples, whose marriage and commitment to each other, through thick and thin, automatically entitles them to share in all their respective assets, should be treated the same in law as civil entities whose entitlement is still to be decided. The same goes for cohabitants, whose commitment to one another is not enshrined in contract and whose arguments as to privacy and confidence of the other make sense.

To me, this is where the Court of Appeal went wrong. Ironically, they failed to recognise the unique and fundamental nature of marriage, and treated the couple more as cohabitants rather than a couple who are entitled to begin with a 50:50 division of everything, as per the House of Lords in White v White.

If a husband or wife is able to lie to a spouse, and that spouse must then resort to a raft of the most  ludicrous, heavy handed and phenomenally expensive remedies to gain justice, hasn’t the law – to use Mr Bumble’s well-known quote – been made to look rather an ass?

Jim v Mary

And what of the hapless Jim?

Well, John the solicitor finds himself saying, ” Jim, leave all the bank books and the Premium Bonds where they are. Remember what you have seen. If she hasn’t disclosed her little nest egg when her Form E comes in in two months’ time, then let’s go to court and get a search and seize order, which is called an Anton Pillar order. That means I will have to get an independent solicitor and his firm to oversee a raid on your wife’s bedroom drawer. They can take away all the bank books, the Premium Bonds and whatever else they find if it’s all still there – and it will all be perfectly legal.”

Jim furrows his brow. “But that’s going over the top isn’t it, John? How much will that cost me?”

“About £50,000, Jim”, John replies. “Unfortunately, if there is nothing there by the time we get to the bedroom drawer you might have to pay her costs too. Oh, and she might sue you for damages. So add another £50,000 on for good measure. I will put it all in writing to you. But nobody can complain about you, Jim, and this course of action is what the Court of Appeal has said is the right thing to do. They want to see far more of these Anton Pillar orders….Jim??? Are you still there Jim?”

At the same time, the latest statistics show that divorce rates have fallen to a 29-year low. There are several reasons for this but clearly, the rise of the working mother and soaring stress levels have not triggered a divorce epidemic. So if greater numbers of women are “making it work”, how are they doing it? I have my own ideas…

Winding down after a hectic series of meetings in London last week, I had lunch at J Sheekey in Covent Garden. (For relaxing and taking stock, this fish restaurant is the perfect venue: yummy comfort food, the best wine, white linen tablecloths and old-fashioned puddings!) My lunch companion was in her early thirties. She is very bright and our conversation kept me on my toes. She also has a bustling, highly-pressured lifestyle that makes mine pale into insignificance.

She is married with two young sons. She commutes to Central London every day; her husband commutes to his job on the south coast. Their sons are dropped off with the child minder. Her job is highly sought after, but stressful. Her guts and determination have helped her to thrive in a cut-throat jungle. I was full of admiration for all that she has achieved – and continues to achieve, on a daily basis.

When I went to the Cabinet CBBC party in Paris recently, I met another British career mum. Her home is in London and her office is in Paris. Her commute is a round trip of some 400 miles – and she has a young child to care for at home. When we met she was overnighting, attending the CBBC launch before returning straight home the following day.

Working mothers v stay-at-home mothers

After leaving J Sheekey, travelling back to Yorkshire, I thought about both women and thought back to the 1990s, when my son Ben was little. I was a mother, a wife, a housewife and a lawyer running my own firm, all at the same time. It wasn’t easy. When I look back I smile, but I also wonder how on earth I managed.

The guilt was the worst thing. I felt guilty about being at work, when my baby was at home being looked after by someone else. How was he? Was he safe? Was he well? Was he fed? Was he happy? He was fine.

Then there was the guilt when my baby was at nursery and I was at work. I remember phoning the nursery on his first day and being told curtly by the head (a friend): “Marilyn, we knew you would call. He is fine,  now buzz off.” And he was fine.

But then I felt guilty when I took days off work, to stay with Ben and work from home, often in the garden sitting next to his pram. I couldn’t win!

I juggled as best I could, but on occasion something would give. I once turned up to a meeting a day early. I was frequently ticketed for speeding, while dashing between school and the office trying to be on time for one or the other. The pressures piled up.

Despite those fast, frantic, roller coaster, sleep-disturbed years, I appear to have raised a well-adjusted son. We have a great relationship and he is now a law student following in his parents’ footsteps. He can’t have had it that bad!

Last year at Stowe Family Law, one of our partners took the difficult decision to leave. It doesn’t happen often. In this case, our colleague had forged an exceptional career for herself – but felt that she’d had enough of coping with the pressure of being a working mum. Now she is a full time mother to her young family, and I am pretty sure that her law career is over for good. She is a great family lawyer and we miss her, but we respect the difficult decision that she and her husband made for their family’s benefit.

How to balance marriage with a career

The young mums I met last week battle on. How I admire their courage! I know they are finding it hard and must worry about what the future holds – just as I did.  I wish I could reassure them, and tell them it will be all right. I am confident that if stick it out, everything will work out fine.

Why? Staying married is never guaranteed, but a genuine agreement between partners to share childcare, work and domestic chores can give a marriage a far better chance of survival.

Both of these women told me of their decisions to keep working to get to the top of their professions, and described the great support they received from their husbands. Each man supports his wife’s endeavours and plays his full part in the marriage – far more than might have been the case just one generation ago.

Each husband shares in the childcare and plays his part in the domestic arrangements. It is as tough for him as it is for his wife. Thus neither spouse is taking it easy. Instead, husband and wife are working towards shared goals: a successful family life and successful career paths.

We women have fought hard and forged fabulous careers which were dreams thirty years ago, but we have proved we can pull it off successfully with partners who accept that women are also in high positions in the work place yet need equal partners in a marriage.

Times are changing

In the past 20 years many marriages have broken down because couples couldn’t cope with “doing it all”. Wives complained that husbands paid mere lip service to domesticity. Caught up in the macho man image of the time, many men refused to do the cooking, dusting, vacuuming, childcare or shopping. These days it is considered cool to cook, shop and clean. Many men adore time spent in the kitchen. They like to look after their children.

I believe that many men have altered their mindsets to accommodate a new type of partner. They no longer expect to be the breadwinners. Instead they accept that they are equal partners with their wives, both of them working and raising their children.

With divorce rates continuing to fall, I can’t help thinking that one reason for this is that women are no longer just seen as breadwinners. Now they are also accepted as breadwinners, with their own careers. Men are more willing to adjust to shared domestic duties – including childcare – without complaint or resentment. The pressures of balancing work life and family life are reduced because they are shared. The chances of a successful marriage are increasing.

Am I right?

Image credit: Perfecto Insecto.

A new study, the results of which were published in yesterday’s Daily Mail, concludes:

Men really do feel less guilt than women… From forgetting to post a birthday card to embarking on an affair, the male of the species is less likely to feel remorse, sorrow, empathy or anger.

The problem, say the study’s authors, is not that women feel too much guilt – but that men feel too little.

Appearing on BBC Radio Manchester yesterday morning I was asked if, as a family lawyer, I agreed with these findings.

From reading the article it appears that men are indeed from Mars and women are indeed from Venus.  At no point, apparently, do we think similarly about wrongdoing in our relationships with one another. Put simply: women will recognise what is wrong and apologise and men don’t recognise what is wrong and won’t. It was a man after all (the late Erich Segal) who coined that phrase: “Love means never having to say you’re sorry.” Perhaps that phrase was more telling than even he realised!

It is true that some female clients fixate on the lack of remorse shown by their cheating spouse. They can also spend a long time canvassing opinion as to why he still won’t apologise. If that is the case there is no doubt the divorce process becomes even harder to settle, because in refusing to at least hand her the moral high ground, the husband is also preventing her from restoring some of her lost self-esteem and self-confidence.

At such points I tend to suggest therapy to clients so that they can move on and begin to make progress again. A wife whose instincts were correct and is finally vindicated sometimes needs serious professional help if she can’t get an apology. Very often her husband doesn’t understand – or at least gives that appearance.  Even worse, it is common in these situations for children who see issues in black and white, with no shades of grey in-between, to side with their mother and family breakdown begins in earnest.

Conversely it is also true that many men will not waste their time on emotional discussions of guilt or wrongdoing with me. “It’s over, how much do I have to pay to get divorced and how much will it cost me?” is often all a divorcing husband wants to know.

But I don’t believe in stereotypes. I think it’s much more complex than that because all of us are human, we aren’t programmed robots and we don’t all react and feel exactly the same. There are as many tough women out there as men, and they wouldn’t dream of apologising for their behaviour in marriage either.

According to this latest study, however, it isn’t that men are misbehaving by refusing to apologise. Rather, men aren’t programmed to actually give a damn. They simply don’t appreciate that they should apologise and can’t properly empathise with their spouse. Instead they go on their merry way, wreaking havoc and making everything worse because they feel too little guilt.

So if that’s the case and we should excuse these men from failing to say sorry, shouldn’t we also excuse them from ever apologising for anything, ever, period? Because these poor unfortunates have no moral compass and therefore don’t understand the requirement to apologise? I’m sceptical!

My experience suggests that the refusal to apologise during the process of marital breakdown is common to both spouses. Usually those people whose marriages are breaking down, whether men or women, started that journey long before any affair began. These people have, knowingly or unknowingly, started to think apart and perhaps live some of their lives apart. Because it’s all caught up in the same marital breakdown process, the affair itself isn’t seen as wrong either – it is just another side effect of living their lives separately.

Some people convince themselves that the affair only began because their spouse was too awful to keep living with. They cite concerns about them (or so it frequently seems to me) that other couples might dismiss. Very often the things they suddenly find so unbearable may even have been what attracted them to their spouse in the first place.

Furthermore, if they have become involved with a third party, then an admission of guilt – of wrongdoing – will taint their new relationship too. And that is not the way to start over.

Will an apology be forthcoming in those circumstances? Unlikely.

Similarly a brief affair or a one night stand may be excused away: “I didn’t realise what I was doing until it was too late”, or “I had too much to drink”, or “you were mean to me and I needed some company.”

No need to apologise there either…

Sometimes a spouse doesn’t appreciate that an apology is needed, because their “hurt” wife never lets on she wants an apology at all. She says nothing, waiting and hoping that the spouse will try and understand. Of course he won’t, because he hasn’t been instructed and some men need to be told.

That was the point made by my fellow guest on the radio. He said the problem some men have is that they don’t even know an apology is required. She expects him to guess and he doesn’t. So a wife sits and fumes, the husband doesn’t understand and the relationship deteriorates still further. Stalemate is the outcome, divorce is likely to follow.

On the other hand, what is wrong to one person may not be wrong to another because it can be explained away or excused.

That is why fault in divorce is such a tough subject and why shades of grey in any marital breakdown mean that needing and wanting an apology or feeling the need to say sorry may in fact never happen.

This is a pity because when a couple is divorcing, an apology can clear the air, help restore the power balance and is often a precursor to a settlement.

So here is a tip for anyone out there who feels the need for an apology, or is prepared to provide an apology in order to kick start some meaningful negotiations. Go ahead and say what you want to your spouse. You will lose nothing by trying!

And if yesterday’s discussion on the radio is anything to go by, saying sorry could even improve your relationship.

Image credit: emmaphotos.

For me it is White v White: the decision of the House of Lords, delivered in 2000. This was when the concept of equal sharing became the accepted starting point (and usually the finishing point) for financial settlements between a wealthy divorcing couple, irrespective of one party’s role as the bread winner and the other party’s role as the homemaker. Gone was the entitlement of the breadwinner (usually the husband) to retain the lion’s share of the family wealth. The court made it clear that no distinction was to be made.

That decision is now ten years old. With the benefit of hindsight, has White v White unwittingly accelerated the decline of marriage in English society? In short, was it the right decision for our society as a whole? It is not a simple question to answer.

Until White v White, wives of wealthy men could not hope to argue successfully for parity or anything approaching it. They usually had to make do with the Duxbury tables to calculate their ”reasonable needs” for life. The Duxbury tables, which are still used in some cases, give the wife a capital sum based on an income need determined by the court if the parties fail to agree.  The lump sum is arrived at on the basis that every year the wife will spend some of the capital and some of the interest earned, so that when she reaches the actuarial age at which it is assumed she would die, there will be no capital left. It is therefore a cheaper option than a lifetime annuity. However it leaves recipients stuck to a rigid lifestyle from which they cannot depart, and in many cases unable to leave a penny to their children from their estate. In some cases a wife’s “reasonable needs”, as calculated prior to White, bore little resemblance to the lifestyle that she had enjoyed during her marriage. Since White, reasonable needs have been more generously interpreted.

Dart v Dart

The family law case of the 1990s adjudicated by the court was Dart v Dart (1996), which demonstrated the need for a new approach. The Dart family originated from Kentucky, USA, but was living in England when the husband began divorce proceedings. The wife tried in vain to have the case heard in the USA. She pursued every avenue to avoid the relatively derisory settlement that would be forthcoming at the hands of the English courts. The couple was spectacularly wealthy – the husband’s fortune was calculated at about £400 million – and had enjoyed a spectacular standard of living during the marriage.  The wife sought in the region of £100 million for her settlement.  However her legal team suffered a pasting at the High Court and subsequently the Court of Appeal. The wife was awarded £8.5 million and was ordered to pay her husband’s costs.

Dart v Dart was a watershed case for wealthy husbands – and had it been heard several years later, the result undoubtedly would have been different.  Once again, hIndsight is a wonderful thing. When White v White came to court in 2000, it was welcomed by family lawyers who had been waiting for it on behalf of their female clients.

The judgments of the House of Lords, particularly of Lord Justice Nicholls in White v White, have now become the norm. If a couple begins married life with little, gathering wealth during the course of their marriage, the wife can reasonably expect to receive half of that wealth. She can do this even if she has never or rarely worked outside the home.

Charman v Charman

This was the argument opposed by Mr Charman, when Charman v Charman came to court in 2007. The couple had started married life with very little, had two children and were married for the best part of 30 years. By the time they divorced, Mr Charman had secured a place on The Sunday Times Rich List and the couple’s assets were assessed at £131 million. Mr Charman insisted that his wife should be satisfied with his proposed settlement of £20 million. He described her as “a housewife” and contended that his contribution to the couple’s wealth entitled him to the larger share.

The court rejected his argument. In the full glare of publicity Mr Charman was ordered to pay his wife some £48 million, with a discount on a 50:50 split only achieved because the court accepted that he had made a “stellar” contribution to the family fortune.

Most high earning husbands cannot secure such discounts. The 50/50 split is more often than not a given. The husbands concerned often believe that they deserve extra credit, having earned fortunes with blood, toil, tears and sweat. However the courts, following the case of White v White, usually disagree. Their fortunes are split 50:50. It is not just high earning men who find their fortunes divided in this way; the rule applies equally to high earning women.

Is it fair?

Miller v Miller and McFarlane v McFarlane

Almost ten years later, many high earners have found themselves on the “wrong end” of these decisions. Some have attempted to use the provisions of section 25 of the Matrimonial Causes Act 1973 (which is still in force) to escape the rigours of a 50:50 division. We have had variations on the White v White theme, some of which have been ingenious. In addition to the cases about stellar contributions, there have been arguments about illiquidity impacting upon a 50:50 split, the valuations of assets, the impact of premarital wealth on wealth acquired during the marriage, the impact of a short marriage on assets acquired during the marriage, assets placed into trusts before and after the marriage, the impact of post-separation wealth on equal distribution, and cases about sharing income and bonuses, when a clean break between the parties was not possible.  Then there have been arguments about the validity of the deal after the agreement has been signed and court orders made. All of these cases have been determined in the shadow of White v White, and in a desire to achieve post-White “fairness”.

Some individuals have turned to the media. Headlines have told of angry husbands who have publicly berated the system. It is true that “the system” has its flaws. I have sympathy for fund manager Alan Miller, whose multi million pound payout to his wife – after a very short, childless marriage – seemed to me to be harsh because the approach followed the sharing principle of White v White. I also sympathise with accountant Kenneth McFarlane, who did not seek publicity but whose case was very public, because it took the arguments in White to even more esoteric levels. In his admittedly “paradigm” (i.e. rare) case, the wife had given up her career as a lawyer to raise the couple’s children. Her settlement was calculated to reflect the loss of earnings she had sustained by becoming a homemaker. As a result she now receives substantial slugs of annual income each year until her former husband retires, which are substantially in excess of her reasonable needs.

More seriously, it also appears that the numbers who marry have steadily declined over the decade; instead, many couples are choosing to cohabit. A coincidence? I think not. Many high achieving clients of mine decline to marry at all, knowing full well that their liability if the relationship breaks down will be peanuts compared to a divorce settlement. Others are exploring the possibilities presented by prenuptial and postnuptial agreements.

Politicians and judges are quick to lament the decline of family values, arguing that marriage should be the gold standard. Ten years ago these arguments did not exist. Ten years is clearly a long time.

We now have many prominent lawyers, academics and judges, all practitioners in the field, agitating for a change in the law. Some look to European models, which have no room for flexibility and no maintenance at all for wives, who are now perceived to have far too much.

There are now regular arguments about the rights and wrongs of divorce settlements. The media coverage appears to have polarised the public, but often it highlights uncommon cases and ignores the rest.

However that is all we are in fact discussing: a tiny fraction of cases, featuring wealth sufficiently substantial to attract media attention. The vast majority of cases – hundreds of thousands of them, every year – pass under the radar with nary a sound.

So in the wake of what appears to have become a vigorous campaign for change in financial divorce settlements, given what has happened to our society, was White v White correctly decided? Or do we need change?

From my perspective as a practitioner, as someone who sees ordinary people day in day out, we still need discretion coupled with flexibility in order to achieve fair maintenance and capital settlements. The 50:50 split of assets simply does not apply to most couples because it usually will not meet the parties’ needs. We need the flexibility that our law gives us, to allow for the individual circumstances of every couple’s case. We don’t need a change in the law.

What we do need, in my opinion, for the more high flying cases, is just one thing.

It is common sense.

We need to “temper justice with mercy”, so that the outcome reflects a practical, common sense approach to the case such that the ordinary man or woman in the street would think it fair.  Many cases do deserve a 50:50 split, but many simply do not. I would not have awarded the 30 something Mrs Miller £5 million for her very short marriage. I would not have treated Mrs Macfarlane as exceptional. I would have awarded Mrs Charman £48million, as a fair sum that reflected Mr Charman’s “stellar” contribution but recognised also the vastness of the family assets and the contribution she made to the family.

And what of the next decade? What will we see happening? Ambitious legislation? Fresh approaches to divorce and financial settlements? The legalisation of prenuptial and postnuptial agreements?

If we have learned anything from the application of White v White during the Noughties, it is this. Innovation is not the catch all answer. Sought after reforms may solve a very few problems – but can create many new ones.

Hindsight is a wonderful thing. But usually by then the damage has been done.

Image credit: walknboston.

“Our society in England and Wales now urgently demands a second attempt by Parliament, better than in the ill-fated Part II of the Act of 1996, to reform the five ancient bases of divorce; meanwhile, in default, the courts have set the unreasonableness of the behaviour required to secure the success of a petition on the second basis, namely pursuant to s.1(2)(b) of the Act of 1973, even when defended, at an increasingly low level.

Stowe Family Law represented the successful husband in this case. The judgment of the Court of Appeal, heard before the President and given by Lord Justice Wilson, was handed down today. I will not of course discuss the specific facts of the case and nothing that follows does so. But, on a general note, Miller Smith is a useful example of alternative options available to deal with the financial problems caused by a defended divorce.

In such cases, finances cannot be dealt with in the usual manner, as the brakes are firmly applied until the divorce is out of the way, which could take a very long time. What is one party to do, who wishes to move on with his or her life and finds themselves apparently stymied?

Defended divorces are rare, and a practitioner will thus only occasionally come across the problem. But there is an alternative route in appropriate cases – the use of other law, such as section 14 of the Trust of Land and Appointment of Trustees Act 1996 (TOLATA) and section 17 of the Married Womens Property Act 1882, to obtain an order for sale of jointly owned property, and section 33 of the Family Law Act 1996, to secure an occupation order of property.

The exercise of those options by the court is discretionary, however, and whilst the Court of Appeal in today’s judgment, emphasises that adopting the “holistic” approach within divorce proceedings is preferable, it also gives useful guidance on the threshold that has to be crossed for it to make these alternative orders.

What sprang off the page for me, though, is the quote above from the Court of Appeal relating to what seems to me a strongly perceived need for family law reform. The Court  has drawn attention to a dichotomy- a practice which has grown up over several years, where parties going through divorce are expected to try and resolve matters as sensibly and amicably as possible, yet obliged to throw mud for the process to conclude swiftly.

Current law in England Wales requires a marriage to have irretrievably broken down, if a divorce is to be obtained, and for this to be proved by one of five facts. Those (briefly) are:-

1. Adultery and the Petitioner finds it intolerable to continue to live with the Respondent.

2. The Respondent’s behaviour is so unreasonable that the Petitioner cannot reasonably be expected to live with the Respondent.

3. The parties have been separated for two years and both consent to a divorce.

4. The Petitioner has been deserted for two years by the Respondent

5. The parties have been separated for five years.

The only way of obtaining a divorce, therefore, without a wait of at least two years, is by alleging misconduct, whether by way of adultery or unreasonable behaviour. In the absence of proof of the former, the latter is almost always the chosen method of initiating a divorce, as statistics demonstrate.

But allegations of unreasonable behaviour in a divorce petition, starkly set out and frequently viewed as exaggerated or invented by a Respondent to a petition, are very unhelpful in setting the tone for negotiation of the issues that follow: namely children and finances. The Respondent will be inflamed, and may give instructions to fire off a cross petition, to put another side to a story, that no-one – least of all the courts – particularly wishes to know about and would prefer to be kept private.

So, in recent years, to avoid this and heightening the temperature of cases, the tendency has been to keep allegations of misconduct as minimal or anodyne as possible. It is considered good practice (The Law Society’s Family Law Protocol) where possible for practitioners to try and agree the proposed “unreasonable behaviour” with the other lawyers, and once this has happened a suitably sanitised petition is presented to the court.

Similarly, the Courts have adopted the practice of allowing, through such a petition, a much lower standard of “unreasonable behaviour” than some years ago, precisely to achieve the sensible aim of conciliation and swift resolution of the entire process.

But it does make a mockery of the current law, doesn’t it? Worse still, the present law doesn’t reflect what all but the tiniest fraction of divorcing couples,  practitioners and Courts are trying to achieve – a straightforward, low key, cost effective and amicable  settling of all the issues thrown up by a case.

And here I return to the principle of swift, “no fault” divorce, of which I am strongly in favour. I have a simple viewpoint. If parties can make up their respective minds to marry, then they may do so without ‘hoo hah’. Similarly, if they decide to divorce, they should be able to do so equally swiftly – with dignity and less cost and without mud slinging…and without expensive nannying either.

A problem arises where only one party to the marriage wishes to divorce and steadfastedly refuses to consent to it. It seems to me there should be a (rare) option, with costs risks – a fall back position that “in extremis” a court may make a decision based on fault. There could also be provision for financial relief, irrespective of a defended divorce. How that is to be achieved, however, is something for brilliant brains, specifically tasked with the job, and definitely not one for a day dreamer such as me!