25 November 2002
Harry and Shan Lambert were married for 23 years and amassed a £20m fortune from the newspaper chain that Mr Lambert started in 1974. At first instance, his wife was awarded 37 per cent of the total assets (around £7.5m), but the Appeal Court awarded her up to the magic half (around £10.1m).
This was what she wanted. Recognition, she said, for her contribution to the welfare of the family, raising the children and supporting her husband in accumulating the wealth.
Mr Lambert had categorised his wife's contribution as "revolving around the microwave and the children".
Mrs Lambert said that her role in the marriage had been pivotal, and the Court of Appeal agreed, in what is a pivotal precedent for other wives. The House of Lords in White had said that a 50-50 division was not a starting point, but Lambert seems to leave the husband having to justify why the wife should not get half. The result is, some say, natural if the law is to pay more than lip service to the 'equality' of contribution between husband and wife, which was the central theme of White.
There are, of course, strong opposing opinions. Many feel that it is unfair to equate the wife's support behind the scenes with the husband's generation of the fortune. Others feel equally strongly to the contrary - that preventing the housewife from ever being able to 'clock up' enough contribution to justify a half share of assets is simply out and out discrimination. In Lambert, the court has identified ingrained discrimination.
Giving 50 per cent to Mrs Lambert has also given the law a new dilemma. If a non-working wife can get 50 per cent, what happens to the wife who has raised the children and earned all the money? Does she get 60 per cent? What about the husband's non-financial contributions in those cases?
In order to dislodge the presumed equality of contribution in White, there was a return to the minute examination of marital behaviour: husbands alleging that wives have been spendthrift or unwilling to lift a finger; wives declaring that no wife could have been more supportive or done more. The Court of Appeal in Lambert has highlighted how unseemly all of this is and warned against the unnecessary airing of dirty linen.
Mr Lambert claimed to have made an "exceptional" contribution to the accumulation of wealth. He founded a free newspaper chain in Kent which had enabled the family to accumulate the £20m. He was relying on the fact that the Court of Appeal in Cowan (2001) had given the husband more than half because he had made a 'stellar' contribution as the genius who introduced the black bin liner to the UK.
Mr Lambert's argument was rejected. He was told that not only geniuses can make £20m, and that only true genius in making the fortune, rather than the size of the fortune itself, can do down a wife's claims.
Essentially, 'exceptional' contributions count only in 'exceptional' circumstances now. Interestingly, in H v H (2002) the High Court said that the contribution of a leading City solicitor who had accumulated £6m was not one which called for "special recognition".
Giving 'marks' to husbands and wives at the end of a marriage is subjective and destructive. One party will inevitably feel hard done by. But if you take away the need to assess contribution, what is left? In Lambert, Lord Justice Thorpe talks of his work as chairman of the Ancillary Relief Working Group, charged with advising the Lord Chancellor on options for legal reform. One option would be a rebuttable presumption of an equal division of any surplus of assets which remain after fair provision has been made for the needs of each of the parties.
What is needed, however, is certainty about what the law provides these days on divorce. If there is to be a presumption of equality, then the law should come clean and say so.
Inasmuch as the Lambert decision provides more certainty for one set of litigants, it provides a host of uncertainties for others. The only absolute certainty is that the trilogy of high-profile divorce cases, starting with White, will itself have many sequels, as husbands advance all manner of arguments to try to resist a 50 per cent payout.