12 January 2006
Marriage might be based on love, but money and perhaps a generous dash of bitterness and acrimony drives divorce. And, ultimately, when it comes to a celebrity or high-stakes divorce, the lawyers job is to secure a good deal for their client.
This year has been a landmark one for divorce cases and not just for their monetary value and colourful column inches in the tabloids and Heat. While celebrity splits such as the McCartneys have grabbed the publics attention because of the financial fallout, legal attitudes to divorce have shifted of late
in favour of the poorer party.
The House of Lords, the highest court in the land, ruled in May in favour of the wives in two cases, Miller v Miller and McFarlane v McFarlane. The money involved made the stakes high. The Lords ruled that Melissa Miller is entitled to 5m from her ex-husband, while Julia McFarlane will have an annual payment for life of 250,000 from her former partner.
The Lords dismissed an appeal from Melissa Millers husband Alan, finding that the 5m award was appropriate. Although the couple was together for only two years, the Lords decided that financial parity should still be established.
It also used the judgment to clarify the point that marital conduct is not a deciding factor in the outcome of a divorce. Melissa Miller accused her estranged husband of cutting the marriage short with an affair, but the judges refused to take this into account when considering how the couples money should be split.
Julia McFarlanes case was upheld by the Lords in the same judgment. It ruled that, after giving up her career as a solicitor to care for the couples children, McFarlane still contributed to the marriage and her husbands earnings.
Family Law in Partnership partner James Pirrie, acting for Julia McFarlane, told Lawyer 2Bs sister title The Lawyer at the time: What the Lords is saying here is that, if you made this decision jointly [for one party to give up work to care for the children], the change in dependency is going to be recognised. This is a truly startling judgment.
The Matrimonial Causes Act 1973 sets down the basis for divorce and how the courts should go about awarding ancillary relief. But how this relief is awarded is down to the judge. The law asks that judges look at the financial needs, obligations and responsibilities of the parties, but trusts them to make their own decisions. They therefore have a key role in shaping the legal climate.
Equal distribution of wealth is the name of the game, and the UKs divorce courts are not sentimental in dividing assets equally between husband and wife, even in short marriages. This means that the divorce is likely to be expensive for the higher-earning partner. More often than not that partner is the husband.
Tom Amlot, head of the family department at media specialists Harbottle & Lewis, says: The large award in McFarlane v McFarlane confirmed that the London courts are some of the most generous in the world for payments. You could say the courts are very pro-equality. Theyre very forward-thinking in seeking to achieve fairness, as set out in Section 25 of the Matrimonial Causes Act.
The Law Lords decisions in Miller and McFarlane are particularly indicative of this stance. Julia McFarlanes win of an annual payment of a quarter of a million pounds in recognition of her career sacrifice for her family is not something that is outlined in the original matrimonial statute.
Mrs McFarlane argued successfully that periodic payments should reflect an element of compensation, but the word compensation doesnt so much as appear in Section 25 of the Matrimonial Causes Act says Amlot.
If anything, this stance penalises the higher-earning partner and puts the pressure on them to offer large settlements before the dispute reaches court.
Rumours have abounded about Russian billionaire Roman Abramovichs divorce. Were it to cost him half his 10bn fortune, it seems likely he would prefer to put forward a settlement. So far, no papers have been filed.
Paul McCartney, whose worth is an estimated 800m, is reported to have offered 30m to Heather Mills McCartney, which she promptly refused.
Some observers of UK divorce law think it is time for the Government to start working on a new, clearer law so that parties can be more certain about how
the judges will view cases. This has become especially vital following the rise in the number of big-money cases.
Amlot says: Id certainly agree that theres an argument for a new act of Parliament to clarify the law on dividing assets and income. The last one was in 1973, when there werent nearly so many wealthy people around. Theres a growing number of cases in which theres an excess of assets, and its extremely difficult to know how to divide it.
The outcome of the McCartney divorce if Heather Mills gets the expected 300-400m payout will likely push this issue further into the spotlight.