Leading article: A matter of legal rights and personal responsibility

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The Independent Online

There are a number of elements in yesterday's two Law Lords' judgments on divorce that are to be welcomed. The first is that they overturned the suggestion of a lower court that the £5m awarded to the ex-wife of the City fund manager Alan Miller was, in part, punishment for the fact that he had an affair which precipitated the end of the marriage. That is quite right. Conduct should not be a factor in divorce settlements. They should be determined purely by economic factors. Britain has happily left behind the divorce court blame-game, which benefited no one apart from the lawyers.

Having said that, how should those purely economic factors be weighed? The Law Lords came up with two concepts: contribution and compensation. Until now, maintenance for the lesser earner - usually the woman - has essentially been based on awarding them living expenses at the level to which they were accustomed. The two new factors consider what contribution the woman made to the accumulation of the husband's wealth and what sacrifices she made in the process.

Again, these are useful yardsticks. There may be those who will wonder whether Melissa Miller made a £5m contribution to her husband's £17m fortune, but it is clear that much of it was accumulated during the two years and nine months of their childless marriage. In the other case at the centre of the Law Lords' consideration - that of Julia McFarlane who gave up her career as a solicitor to look after her corporate tax accountant husband and their three children - the compensation issue is clear. It would be hard for her, at the age of 45, to expect to return to work and earn the kind of salary she might have expected had she never given up.

But what is disturbing about these cases is the social paradigm to which they speak. For the majority of the population do not live in a world where extreme wealth obviates the need for one partner to work. The social revolution ushered in by feminism, coupled with the economic pressures of a globalised economy, altered irrevocably the 1950s model of the stay-at-home mum. Few people today can give up their career for a spouse - nor would they want to. The norm is for both husband and wife to hold down jobs and to share the responsibilities of childcare, though it has to be said that women bear a disproportionate burden here. But independence and fulfilment are prizes, not prices to be paid.

If yesterday's rulings were to impact on the conduct of divorces in general, that would be a very bad thing. Ms Miller may have married with "reasonable expectation" of a wealthy lifestyle, but it might have been helpful if the judges had asked whether it was appropriate for Ms Miller, at the age of 36, to give up her career as a PR executive earning £85,000 a year. Does she not have some responsibility to continue to work for a living? That, at least, ought to have been a contributory, balancing consideration.

Likewise, it may be reasonable for Ms McFarlane to expect £250,000 of her husband's £750,000 salary, but the notion that she should get this for life is questionable. She may now be economically disadvantaged, and she may deserve compensation, but does she not also have the duty, at least in part, to take responsibility for her own life? Not to suggest that, as a counter-balance in the judgment, is to create a structural incentive to idleness and dependency - and to fuel the ire of those who talk about "meal tickets for life".

Some lawyers suggested that the "complicated judgments" do not necessarily mean Ms McFarlane will continue to receive payments indefinitely. Once her children are older she might be expected to return to work. It would have been helpful if the judges had been more explicit about this - and given some indication that they understand the world in which the rest of us live.