Breaking up is hard to do: Divorce - the harsh truth
A series of court cases involving vast settlements for ex-wives has highlighted Britain's growing reputation as a place to win a generous payout following a marital split. Maxine Frith reports
Friday 03 February 2006
It used to be so easy. Boy meets girl. Boy and girl fall in love, marry and live happily ever after. But two out of three modern fairytales now have a rather different ending, with boy and girl quarreling over everything from custody of the children to ownership of the Playstation.
Just over 300,000 people were married in 2004, but 167,737 were divorced, making Britain the capital of Europe when it comes to marital meltdown. And two high-profile cases being heard at the House of Lords this week have prompted lawyers to say that the UK is becoming one of the most generous places in the world when it comes to divorce settlements for women.
Indeed, it emerged yesterday that golfer Colin Montgomerie paid his former wife an estimated £15m settlement following the end of their marriage. Breaking up, it seems, may hit many people as hard in the pocket as it does in the heart.
THE HISTORY OF DIVORCE
Before 1670, only the Church courts could grant divorces. And only men could have one, on the grounds of non-consummation, impotence or insanity. Few exercised the option. Even then, divorces granted by the Church did not allow for remarriage unless one partner died.
Henry VIII may be history's most famous divorcé after his cataclysmic split with the Catholic Church in 1533, but two of his marriages - to Catherine of Aragon and Anne of Cleves - were technically annulled.
When divorce was first enshrined in English law in 1670, it was still only available to men, on the grounds of adultery or life-threatening cruelty, and it required an Act of Parliament. The process was so expensive that divorce remained the preserve of the rich. Women who were divorced had no claim on their husband's property or money and any children stayed with the father.
The first woman to obtain a divorce in Britain was Jane Campbell, in 1801. She was granted an Act on the grounds that her husband, Edward Addison, had committed adultery with her sister. Remarkably, the former Mrs Addison also managed to retain custody of her children, partly because she assembled a large number of witnesses, including a butler, maids and family members, who gave evidence in her favour.
In 1857 the Matrimonial Causes Act finally gave ordinary people the opportunity to divorce. The Court for Divorce was established in London and took over the responsibilities of the Church courts. A man could obtain a divorce on the grounds of adultery, but a woman had to prove "aggravated adultery" - that in addition to the infidelity, her husband had deserted her, or subjected her to cruelty, rape or sodomy, or had committed incest.
In the first year of the new law, only 24 divorces were granted. The Church of England frowned on the reforms and such was the social stigma that few couples took advantage of the legislation.
Social changes after the First World War contributed to a 1923 change in the law that allowed women to petition for divorce on the same grounds as men. But separating couples still had to prove adultery, and private investigators began to make a killing tracking down cheating spouses in seaside hotels in order to get photographic evidence of the infidelity.
New legal justifications for divorce were introduced in 1937, making is possible for couples to separate on grounds that included cruelty, habitual drunkenness or desertion for more than three years. For the first time, couples could also apply for legal aid to fund their case.
Between 1958 and 1969 the divorce rate reached almost 100,000 a year, but yet again, it took the law a long time to catch up with social changes, and it was more than 30 years before much-needed reforms took place. In 1969, the Divorce Reform Act was passed. This allowed couples to divorce if they had been separated for two years and both consented, and after five years if only one was in favour of it. A marriage could also be ended on the grounds of unreasonable behaviour and irretrievable breakdown.
Rebecca Probert, an expert in divorce history and law at Warwick University, said the 1969 law marked a seismic change for Britain. "In the year immediately after the Act, thousands of couples were granted divorces on the grounds of the two-year mutual consent rule," she said. "For the first time, the element of no-fault divorce was put in place, so people did not have to prove that someone was to blame for the end of the marriage but that it had simply broken down."
The law has been changed and tweaked in recent years, but the fundamentals of the 19699 act remain.
Divorce may have become easier, but until 30 years ago, it still carried stigma and often hit women hardest. The concept of an equal, 50/50 split of assets is a relatively recent one, although wives were entitled to some support. Many women felt the male-dominated court system also discriminated against them, with mothers losing custody of their children if they were deemed to be to blame for the breakdown of their marriage.
The Princess of Wales' mother, Frances Shand Kydd, and the television presenter Anne Robinson both lost custody of their children in acrimonious divorce cases.
The 1973 Matrimonial Causes Act set down how financial issues should be decided and, as the Californian courts began to award big divorce settlements in celebrity divorce cases, British women increasingly began to demand a fairer division of assets.
Most legal experts agree that the landmark case for British divorce settlements came in 1996, with the case of White vs White. Martin White and his wife Pamela had been married for 33 years and had run a farming business together with assets of £4.6m. But a judge awarded Mrs White just £800,000, saying that was enough to buy herself a house and a reasonable standard of living.
Mrs White, then in her sixties, was outraged and took the case to the Court of Appeal, where she won a new award of two-fifths of the assets. The case rumbled on for four more years, eventually going to the House of Lords, with Mrs White finally awarded £1.5m.
Sandra Davies, head of family law at Mishcon de Reya, the firm used by the Princess of Wales, said: "The pendulum really swung towards women in White vs White. Up until then, there was clearly an element of discrimination against women."
In 2004, another landmark case hit headlines when footballer Ray Parlour's ex-wife Karen was awarded a £2m settlement. Crucially, the judge ordered Parlour to pay his former spouse a third of his future income, on the basis that she had helped to build his career and set him on the path to higher earnings.
The case sent shockwaves through the ranks of super-rich men, who began to fear not just for their current assets but for their future ones as well.
THE CURRENT CASES
Sandra Davies believes that the pendulum is now swinging even further towards women. In the coming weeks, the House of Lords will pass judgement on two cases that legal experts believe could impact significantly not just on divorce law but also on the social fabric of Britain.
In the first, 35-year-old Melissa Miller was awarded a divorce settlement of £5m against her former husband Alan, a multi-millionaire fund manager after two years and nine months of marriage.
The huge pay-out meant the marriage cost Mr Miller almost £5,000 a day, and he has appealed to the House of Lords to cut the settlement.
The former Mrs Miller gave up her well-paid job on marrying her husband, intending to start a family. Sadly, she had a miscarriage and he left her for another woman.
The Lords have yet to reach a ruling, but Ms Davies believes it will have far-reaching effects. She says: "The consequence of Miller is that there will be more pre-nuptial agreements, with people trying to protect their assets, and more people deciding to co-habit rather than marry because they will be concerned about what could happen to their money. The other concern is that it seems to introduce the concept of fault and punitive awards. I think it could have a huge impact." The Miller case also changes the theory that in the event of a short marriage, both parties should be restored to their former financial position, without loss or gain.
In the second case, also heard by the Lords this week, a former high-flying City lawyer asked to be awarded a lifetime settlement of £250,000 a year following her divorce. Julia McFarlane, 44, says she gave up her job to bring up her children and support her husband's career instead.
She argues that she cannot hope to return to her career at this stage in her life, and is challenging a Court of Appeal ruling that she should receive £250,000 for five years only.
Experts say that if she wins, the case will overturn the presumption that women should receive a fair share of the assets but then can and should return to work in the event of a divorce.
A ROSY FUTURE?
According to Sandra Davies, Britain is not just the divorce capital of Europe in terms of the numbers of people who split up here, "but it is becoming the Knightsbridge of the world in terms of generous settlements."
According to a report in The Economist, London is now second only to New York in terms of costly divorces and could overtake America if Mrs Miller and Mrs McFarlane are successful. For the less fabulously wealthy, however, divorce is not so lucrative. Four out of ten divorced women in their 60s suffer money problems - twice as many as divorced men.
Divorce is a costly business - not just for the couples involved. It costs the taxpayer more than £15bn a year in legal fees, court funding, counselling services and other costs, and the average divorce - once the cost of the actual legal process and that of setting up a new, single life is taken into account - will set a couple back more than their wedding cost in the first place, at around £25,000.
Ms Davies says: "Divorce is devastating, both emotionally and financially. The best advice I can give is to do it amicably. No one wins in a long, protracted court case, even if you get a big settlement at the end."
HIGH PROFILE CASES
WHITE VS WHITE, 1996
This case, involving farmer Martin White, above, and his wife Pamela, changed the landscape for divorcing couples, making the contributions of the breadwinner and home maker equally valid
MORGAN VS MORGAN, 2000
Steve Morgan, above, chairman of Redrow Group plc, made his ex-wife a member of the Rich List when she won a settlement of £100m after the couple divorced
PARLOUR VS PARLOUR, 2004
The Court of Appeal ruled that Karen Parlour, above, was entitled to receive one-third of her footballer husband Ray Parlour's future earnings to acknowledge the role she played in his success
MILLER VS MILLER, 2006
Alan Miller, former husband of Melissa Miller, above, is appealing against a £5m divorce settlement, saying his wife of three years had been given a "meal ticket for life"
McFARLANE VS McFARLANE, 2006
Julia McFarlane, above, was awarded £250,000 a year and half of her husband's £3m estate. The Lords is considering whether an ex-wife can claim a share of future income
MONTGOMERIE VS MONTGOMERIE, 2006
Colin Montgomerie and his ex-wife Eimear this week reached an out-of-court agreement on what is said to be a £15m settlement. Mrs Montgomerie agreed to a one-off payment in return for waiving the right to claim on future earnings
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