All may be fair in love but not in divorce
- From: "MCP" <gf010w5035@xxxxxxxxxxxxxxxx>
- Date: Tue, 30 May 2006 06:32:10 GMT
http://www.timesonline.co.uk/article/0,,2088-2200312,00.html
Minette Marrin
'All happy families," as Tolstoy famously wrote, "are alike;
each unhappy family is unhappy in its own way." Each divorce is miserable in
its own particular way too. That is why for all the best will in the world
and all the best legal minds in the country, it is almost impossible to
legislate justly for all the thousand and one combinations of grief and
guilt in the dissolution of a marriage.
Three sensational divorce rulings were announced last week. Two
went in favour of non-earning wives. "Wives Win Out!" "Payday for the wives
who stay at home!" "Landmark victory for ex-wives!", cried the headlines.
Melissa Miller and Julia McFarlane, whose faces were splashed all over front
pages and television screens, were supported by the law lords in their
settlement claims.
Mrs Miller was told she could keep the £5m she was originally
awarded after the break-up of her childless, 2¾-year marriage to a rich man,
which comes to £4,935.83 a day as the tabloids unkindly pointed out, and Mrs
McFarlane was told that as well as half the couple's assets, she was
entitled to £250,000 a year from her former husband, a tax specialist, for
as long as she needs it.
Mr McFarlane refused to comment, perhaps wisely. His wife had
given up a lucrative career every bit as good as his to look after their
three children for many years. But Mr Miller was publicly outraged. "My £5m
warning to wealthy husbands" was the headline of an angry interview he gave
to the Jewish Chronicle. "It seems I have been penalised for the high
standard of living I gave my wife . . . I believe there should be a fair
compensation for the breakdown of a marriage, but surely this should not
equate to a meal ticket for life after a short, childless marriage."
This was swiftly followed by the third sensational divorce
settlement last week; what is sauce for the goose is sauce for the gander
these days. "The Men Strike Back!" screamed one headline. "After those
landmark divorce payouts for two ex-wives, British Airways pilot wins £3.5m
from the lady of the manor", and she will have to sell her pretty manor to
find the money.
The law lords' findings were said to be the most important
ruling for more than 20 years on the division of property upon divorce. And
they were widely said to establish new principles, in a long overdue
reconsideration of these painful matters. But I remain confused and
unconvinced, in so far as I understand their rulings.
Of course the central concept of fairness that guided them must
be right. But as Lord Nicholls began by saying on Wednesday, fairness is an
elusive concept, "an instinctive response to a given set of facts", and to
achieve fairness in the division of property is "that most intractable of
problems". People's instinctive responses vary, to put it mildly.
It has already been established that fairness means no
discrimination between husband and wife; there should be no bias in favour
of the earner, or against the homemaker. The new principle the law lords
have introduced is one of compensation. If one spouse gives up earnings and
future earning power to look after the family and support the other spouse's
career, she or he is entitled to compensation for that loss, as with Mrs
McFarlane. Four cheers for that.
Clearly without the prospect of compensation, should the
marriage fail, it is - and has been - an enormous risk for a woman to give
up her career prospects, great or small, to stay at home to look after her
family. It's a positive disincentive to do so and this has been a great
injustice. This new finding seems to me entirely fair. Marriage should
indeed mean shared risk, shared reward, even after the divorce if necessary.
All the same, I do wonder whether the principle of fairness can
really be stretched in the same sort of spirit to a massive pay out for a
short, childless marriage to somebody filthy rich. The principle is the
fairness of sharing in a married partnership.
On divorce each should be entitled to an equal share of the
assets of the partnership - the fruits of the partnership - unless there is
good reason to the contrary. And, the law lords found, this principle
applies just as much to short marriages as to long ones. Try as I will, I
cannot work out whether this includes assets brought into the marriage. Are
they also fruits of the marriage and therefore the spoils of divorce?
Wednesday's rulings are without a doubt going to put people off marriage.
Sure enough, various lawyers have already said precisely that. Mr
McFarlane's
lawyer said that his advice to successful men would be "One: don't marry.
Two: if you do, make sure your other half is as wealthy as you are. Three:
do a prenuptial agreement and keep your fingers crossed." (This would apply
to rich and successful women as well.)
As things stand now anyone with any assets or any serious
earning power would do much better not to marry. However, this may not
protect them for long. This week law reform advisers to the government will
publish proposals that unmarried couples should have rights and duties to
share their wealth on breaking up, yet another nail in the coffin of the
institution of marriage.
This is all very depressing. It almost seems that the pursuit of
fairness in marriage exposes its internal contradictions and ugly truths.
People are not equal. Partnerships are not equal. People marry for all kinds
of different motives, some of them very cynical. There cannot be any
principles that govern the countless possibilities. No amount of elegant
pronouncement can embrace the varieties of unhappy marriage.
That's why I am sorry that the question of conduct in marriage
has been clearly ruled out. Like many people I thought it might have been
upheld from an earlier decision in the Miller case, but it wasn't. Yet how
people behave seems to me to make a great difference, in real justice, in
determining fairness on divorce.
It's true, as Lord Nicholls said, that it is notoriously
difficult to unravel mutual recriminations and get to any sort of truth.
Perhaps the courts are no place to try to do it, but in no other contract
would the behaviour of the parties be ignored.
The time is long overdue for binding prenuptial agreements, and
now - of course - binding pre-cohabitation agreements; prenups and cohabs.
No one should embark on a serious relationship without taking very sober
thought for the morrow.
.
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