Millions affected by the divorce battles of the super wealthy

Two legal judgments that have changed the rules will not only have implications for the rich, says David Prosser

he number of marriages ending in divorce may now be as high as one in two - good news for family law solicitors, particularly after two legal rulings this week that could pave the way for more bitter court battles between husbands and wives.

The two cases were separate - they just happened to produce rulings on Wednesday - but both could have implications for millions of divorcing couples.

In the Miller case, the House of Lords upheld a previous judgment that Melissa Miller should receive a £5m divorce settlement from her husband, Alan Miller, who is thought to be worth more than £17m.

The case is significant because the couple had been married for less than three years. Previously, the divorce courts had ruled that with shorter marriages, spouses such as Ms Miller should be left no worse off than they would have been if the marriage had not taken place - but that they should not be entitled to a larger share of their partner's wealth.

In the McFarlane case, the House of Lords accepted Julia McFarlane's argument that she should be compensated for the loss of earnings potential she had suffered when giving up her job to look after the children. It said the maintenance her husband, Kenneth McFarlane, should pay her should not be based only on her financial needs, as courts have previously assumed. He will now have to pay her £250,000 of his £750,000 annual income

Though the sums of money at stake in these two cases are large, the judgments will act as precedents for divorcing couples with much more modest wealth. "This will cover a lot of ordinary people, not just the super-rich," says Julia Whittle, of Punter Southall Financial Management. "It may affect many professional couples, as well as divorces concerning older people, or cases where businesses are involved."

The courts will first consider the finances needed to put couples in the positions entrenched in law before these cases - so that a spouse in a short marriage is no worse off, say, or that a maintenance settlement covers needs. But if there is money left once these arrangements have been made, the Miller and McFarlane cases will be relevant.

Victoria Brandon, a matrimonial lawyer at Turner Parkinson, says a "significant number" of couples will be affected. "In the majority of divorces, there are not sufficient assets for these judgments to be relevant, but there are in many cases."

The courts remain reluctant to apportion blame when considering settlements. Previously, Ms Miller had argued that one reason she was entitled to a larger share of her husband's assets was that he had committed adultery. "As a result, many recent cases have cited bad conduct of one party as a reason for increasing the award," says Marc Saunderson, a partner in the family team at the solicitor Mills & Reeve. "The courts have wisely decided it is not their role to apportion blame."

Instead, Ms Miller won her case because the courts decided Mr Miller had earned large sums during the marriage and that she was entitled to think her financial position would last for life. "To be relevant, conduct would have to very serious indeed," says Barbara Simpson, a deputy district judge in the family courts. "The Lords gave Ms Miller £5m because £15m was earned by Mr Miller during the marriage and they had enjoyed a high standard of living."

In other words, the courts have now decided that even in the case of short marriages, the less well-off partner should not suffer a greater loss of standard of living.

Similarly, in the McFarlane case, the courts have decided there should be no distinction made between the partner staying at home and the partner going to work. By choosing to stay at home and look after children, Ms McFarlane's individual finances suffered - once her marriage broke down and she no longer shared a family income with her husband, she was entitled to compensation.

The rulings may seem unfair to spouses who have not done so well from divorce settlements in the past. But there is little prospect of reopening such cases. "These judgments are not retrospective," Brandon says. That means it is not possible to ask the courts to look again at divorces on which they have already ruled.

Should you sign a pre-nup?

* Pre-nuptial agreements are not legally binding contracts under English law. However, the courts can consider any agreement signed before the wedding and they can be an effective way to ring-fence any assets that spouses have accumulated before the marriage.

* More couples may consider pre-nuptial contracts following this week's judgments. Victoria Brandon, of Turner Parkinson, says: "For people with money, a pre-nup will protect both partners - not just the spouse with the larger wealth."

* Pre-nuptial agreements carry most legal weight with shorter-lived marriages, where couples' circumstances are less likely to have changed. Once couples have children, the courts put the children's needs first, irrespective of any agreement before the marriage.

* Couples can update a pre-nuptial agreement if the context in which the contract was signed becomes less relevant.

Independent Partners; request a free guide on NISAs from Hargreaves Lansdown

Arts and Entertainment
Rita Ora will replace Kylie Minogue as a judge on The Voice 2015
Life and Style
Life and Style
Alan Turing, who was convicted of gross indecency in 1952, was granted a royal pardon last year
Arts and Entertainment
Sheridan Smith as Cilla Black and Ed Stoppard as her manager Brian Epstein
tvCilla Episode 2 review: Grit under the glamour in part two of biopic series starring Sheridan Smith
Life and Style
Arts and Entertainment
Tennis player Andy Murray's mum Judy has been paired with Anton du Beke for Strictly Come Dancing. 'I'm absolutely delighted,' she said.
tvJudy Murray 'struggling' to let Anton Du Beke take control on Strictly
Life and Style
Vote with your wallet: the app can help shoppers feel more informed about items on sale
lifeNew app reveals political leanings of food companies
Arts and Entertainment
The cover of Dark Side of the Moon
musicCan 'The Endless River' carry on the tradition? See for yourself
New Zealand fly-half Aaron Cruden pictured in The Zookeeper's Son on a late-night drinking session
A new app has been launched that enables people to have a cuddle from a stranger
voicesMaybe the new app will make it more normal to reach out to strangers
Arts and Entertainment
Salmond told a Scottish television chat show in 2001that he would also sit in front of a mirror and say things like,
tvCelebrity Trekkies from Alex Salmond to Barack Obama
Finacial products from our partners
Property search
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating

By clicking 'Search' you
are agreeing to our
Terms of Use.

ES Rentals

    iJobs Job Widget
    iJobs Money & Business

    IT Project manager - Web E-commerce

    £65000 Per Annum Benefits + bonus: Clearwater People Solutions Ltd: If you are...

    Trainee / Experienced Recruitment Consultants

    £20000 - £25000 per annum + OTE £40,000: SThree: SThree are a global FTSE 250 ...

    Trainee Recruitment Consultant - Soho

    £20000 - £25000 per annum + OTE £40000: SThree: As a Recruitment Consultant, y...

    Trainee Recruitment Consultants - Banking & Finance

    £20000 - £25000 per annum + OTE £40,000: SThree: SThree Group have been well e...

    Day In a Page

    Secret politics of the weekly shop

    The politics of the weekly shop

    New app reveals political leanings of food companies
    Beam me up, Scottie!

    Beam me up, Scottie!

    Celebrity Trekkies from Alex Salmond to Barack Obama
    Beware Wet Paint: The ICA's latest ambitious exhibition

    Beware Wet Paint

    The ICA's latest ambitious exhibition
    Pink Floyd have produced some of rock's greatest ever album covers

    Pink Floyd have produced some of rock's greatest ever album covers

    Can 'The Endless River' carry on the tradition?
    Sanctuary for the suicidal

    Sanctuary for the suicidal

    One mother's story of how London charity Maytree helped her son with his depression
    A roller-coaster tale from the 'voice of a generation'

    Not That Kind of Girl:

    A roller-coaster tale from 'voice of a generation' Lena Dunham
    London is not bedlam or a cradle of vice. In fact it, as much as anywhere, deserves independence

    London is not bedlam or a cradle of vice

    In fact it, as much as anywhere, deserves independence
    Vivienne Westwood 'didn’t want' relationship with Malcolm McLaren

    Vivienne Westwood 'didn’t want' relationship with McLaren

    Designer 'felt pressured' into going out with Sex Pistols manager
    Jourdan Dunn: Model mother

    Model mother

    Jordan Dunn became one of the best-paid models in the world
    Apple still coolest brand – despite U2 PR disaster

    Apple still the coolest brand

    Despite PR disaster of free U2 album
    Scottish referendum: The Yes vote was the love that dared speak its name, but it was not to be

    Despite the result, this is the end of the status quo

    Boyd Tonkin on the fall-out from the Scottish referendum
    Manolo Blahnik: The high priest of heels talks flats, Englishness, and why he loves Mary Beard

    Manolo Blahnik: Flats, Englishness, and Mary Beard

    The shoe designer who has been dubbed 'the patron saint of the stiletto'
    The Beatles biographer reveals exclusive original manuscripts of some of the best pop songs ever written

    Scrambled eggs and LSD

    Behind The Beatles' lyrics - thanks to Hunter Davis's original manuscript copies
    'Normcore' fashion: Blending in is the new standing out in latest catwalk non-trend

    'Normcore': Blending in is the new standing out

    Just when fashion was in grave danger of running out of trends, it only went and invented the non-trend. Rebecca Gonsalves investigates
    Dance’s new leading ladies fight back: How female vocalists are now writing their own hits

    New leading ladies of dance fight back

    How female vocalists are now writing their own hits