The Whites started the ball rolling in 2000, followed by the Parlours – he of footballing fame. Next came the McFarlanes and the Millers, then the McCartneys, and very recently the Vaughans. And finally, soon to be handed down will be the judgment of the Supreme Court in Radmacher and Granatino, that deals with prenuptial agreements.
And what are we professionals to make of these judgments? For my part, I fail to find a ‘golden thread’ of judicial interpretation that will enable me to give my clients sound legal advice once love, and reason, fly out the window.
It is no task of mine to pour cold water on the Conservatives’ manifesto pledge to support the institution of marriage. The principle is commendable – the reality is something else.
It is easy to forget that these wildly varying judgments have their roots in the Matrimonial Causes Act 1973. In many ways it has stood the test of time, aimed as it was at divorcing couples in search of a fair division of marital assets together with a clean break. But sadly, as these recent cases show, the Act is honoured more in the breach than the observance, and divorce settlements are becoming a lottery. The application of the Act was best summed up by Lord Nicholls in the cases of McFarlane and Miller, where he observed:
“At once there is a difficulty for the courts. The Act gives only limited guidance as to how the courts should exercise their statutory powers. Primary consideration must be give to the welfare of any children of the family. The court must consider the feasibility of a ‘clean break’. Beyond this the courts are largely left to get on with it for themselves. The courts are told simply that they must have regard to all the circumstances of the case. Of itself this direction leads nowhere.” Amen to that.
Briefly, the Whites established that there could be no ‘ring fencing’ of assets in favour of one party, ignoring the fact that valuable assets had been acquired by the husband’s family over generations. Everything went into the pot, and was available for division.
The Parlours tore up the rules relating to a clean break, with the wife entitled to a share of the husband’s future earnings as a highly paid footballer.
McFarlane and Miller were heard together, but the circumstances were significantly different, but in the case of Miller, where the couple had been married for less than three years, there were no children, and where the husband’s considerable assets were acquired prior to the marriage, the wife was awarded £5 million.
The McCartneys departed from Miller, much to the relief of Paul McCartney’s bank manager, with the wife receiving £32 million of his total assets, put between £400 million and £800 million. Interestingly, the settlement equated to the amount of money earned by the husband during their four years of marriage.
Finally, in the Vaughan case, decided recently in the Court of Appeal, the husband was ordered to make a lump sum payment of £215,000 to his former wife whom he had divorced in 1985. This judgment beggars belief. His wife was 41 when they divorced. She was described in the Press as an art historian and an expert in Islamic and Indian art, yet by all accounts had not done a day’s work since 1985. I remind myself that one of the factors that a court should take into account when determining the division of marital assets is the employment potential of the wife!
So what advice can I offer clients who, despite the forthcoming tax breaks on offer, decide to call it a day?
As for the future, there may be light at the end of the tunnel. The estimable Baroness Deech, who, among her many attributes, regulates my profession as Chairwoman of the Bar Standards Board, is calling for a root and branch overhaul of the Matrimonial Law. She is supported by Dominic Grieve, the shadow justice secretary. She writes:
“There are cases where people have spent more on legal fees than the assets being fought over. We have got to change to a system where people can work out what each side is going to get without going to court. (Under the present system) it sends out the message that if you marry a rich man you are made for life. It is highly offensive.”
Dickens’s 'Bleak House' should be required reading for all who are involved in bitter legal disputes. The case of Jarndyce -v- Jarndyce is probably the best legal precedent of all.
David Osborne
David was called to the English Bar in 1974 and to the Irish Bar in 1986. He is head of his own chambers based in London and Somerset. He offers specialist advice and representation in a wide variety of legal disciplines, and is accredited by the Bar Council to accept instructions direct from lay clients.
During his long and successful career, David has appeared in the highest courts in the land, including the Old Bailey, the Court of Appeal and the House of Lords. He is the author of the popular blog, The Barrister Bard. You can visit his website at http://www.david-osborne.com.
It is easy to forget that these wildly varying judgments have their roots in the Matrimonial Causes Act 1973. In many ways it has stood the test of time, aimed as it was at divorcing couples in search of a fair division of marital assets together with a clean break. But sadly, as these recent cases show, the Act is honoured more in the breach than the observance, and divorce settlements are becoming a lottery. The application of the Act was best summed up by Lord Nicholls in the cases of McFarlane and Miller, where he observed:
“At once there is a difficulty for the courts. The Act gives only limited guidance as to how the courts should exercise their statutory powers. Primary consideration must be give to the welfare of any children of the family. The court must consider the feasibility of a ‘clean break’. Beyond this the courts are largely left to get on with it for themselves. The courts are told simply that they must have regard to all the circumstances of the case. Of itself this direction leads nowhere.” Amen to that.
Briefly, the Whites established that there could be no ‘ring fencing’ of assets in favour of one party, ignoring the fact that valuable assets had been acquired by the husband’s family over generations. Everything went into the pot, and was available for division.
The Parlours tore up the rules relating to a clean break, with the wife entitled to a share of the husband’s future earnings as a highly paid footballer.
McFarlane and Miller were heard together, but the circumstances were significantly different, but in the case of Miller, where the couple had been married for less than three years, there were no children, and where the husband’s considerable assets were acquired prior to the marriage, the wife was awarded £5 million.
The McCartneys departed from Miller, much to the relief of Paul McCartney’s bank manager, with the wife receiving £32 million of his total assets, put between £400 million and £800 million. Interestingly, the settlement equated to the amount of money earned by the husband during their four years of marriage.
Finally, in the Vaughan case, decided recently in the Court of Appeal, the husband was ordered to make a lump sum payment of £215,000 to his former wife whom he had divorced in 1985. This judgment beggars belief. His wife was 41 when they divorced. She was described in the Press as an art historian and an expert in Islamic and Indian art, yet by all accounts had not done a day’s work since 1985. I remind myself that one of the factors that a court should take into account when determining the division of marital assets is the employment potential of the wife!
So what advice can I offer clients who, despite the forthcoming tax breaks on offer, decide to call it a day?
- Put aside all the bitterness and the endless recriminations, and try to agree between the two of you the fairest division of assets. If you cannot:
- Engage the services of a good barrister to negotiate a settlement before even contemplating legal proceedings. Good barristers know the ropes, and will save you a fortune in legal costs if you accept their advice. Remember that in 2000, the Whites spent £600,000 of their marital assets in legal fees, and that was 10 years ago. Do the maths! If you refuse to accept a negotiated settlement:
- Go to court, and set aside a minimum sum of £25,000 to get you through this ordeal. Unless the judge has taken leave of his senses, and gets it horribly wrong, accept his judgment. If you refuse to do so:
- Set aside a minimum of £100,000 to go to the Court of Appeal. On present form, if you are the aggrieved wife, it may be worth it, but nothing is certain. If you are the aggrieved husband, forget it! Above all:
- Do not go to the Supreme Court. In all but a few cases, you simply cannot afford it, and besides, it is a lottery, a minefield, a nightmare, and a waste of precious marital assets. If the judgment goes against you, the aggrieved husband, leave the country with no forwarding address, and get on with the rest of your life.
As for the future, there may be light at the end of the tunnel. The estimable Baroness Deech, who, among her many attributes, regulates my profession as Chairwoman of the Bar Standards Board, is calling for a root and branch overhaul of the Matrimonial Law. She is supported by Dominic Grieve, the shadow justice secretary. She writes:
“There are cases where people have spent more on legal fees than the assets being fought over. We have got to change to a system where people can work out what each side is going to get without going to court. (Under the present system) it sends out the message that if you marry a rich man you are made for life. It is highly offensive.”
Dickens’s 'Bleak House' should be required reading for all who are involved in bitter legal disputes. The case of Jarndyce -v- Jarndyce is probably the best legal precedent of all.
David Osborne
David was called to the English Bar in 1974 and to the Irish Bar in 1986. He is head of his own chambers based in London and Somerset. He offers specialist advice and representation in a wide variety of legal disciplines, and is accredited by the Bar Council to accept instructions direct from lay clients.
During his long and successful career, David has appeared in the highest courts in the land, including the Old Bailey, the Court of Appeal and the House of Lords. He is the author of the popular blog, The Barrister Bard. You can visit his website at http://www.david-osborne.com.
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