Society
Divorce - Do women win too much?
Published 19 February 2007
For divorcing wives, England is now seen as by far the most generous country in Europe, with some landmark celebrity settlements setting the pace. But is this really justice?
The unique sympathy bestowed by English judges on women in the throes of marriage breakdown has led to thousands of wives from other countries flocking to London to have their divorce cases heard here. While other European countries expect women to return to work and support themselves after the breakdown of a marriage, England has experienced a counter-feminist revolution in recent years. It has become normal here for women to lay claim to all the assets their husbands have brought to the marriage, and even future earnings, as well as being supported by them for the rest of their lives
The situation has spawned a vast legal industry. We have no fewer than 11,000 solicitors specialising in marital disputes, and of the annual 150,000 divorces that go through English courts, 24,000 - or one in six - now involve couples from other countries where the disgruntled partner, usually the wife, has managed to spring the petition here in order to get the best deal.
Now all that is set to change with a massive upheaval being proposed from Brussels and due to come into force next year. The European Commission has put forward a controversial new legal framework to streamline attitudes to adultery and maintenance across Europe. It wants to end divorce "tourism" and prevent disgruntled spouses shopping for a court hearing in England. Although Britain is still calling for amendments to the proposals, the Brussels timescale decrees that the changes should come into force at the beginning of 2008.
Specialist lawyers predict that the new regulation, known as Rome III, will highlight the gulf between how divorce is dealt with in England compared with everywhere else. The regulation introduces the concept of "applicable law", mean ing that many people born and married elsewhere would not have access to an English-style divorce. The intention is to introduce greater consistency in the treatment of divorcees through out the European Union. English divorce court judges will thus be compelled to abandon any misty-eyed compassion for women and fall into step with other countries in order to stamp out the pressure from divorce shoppers.
In recent years, a number of lurid public div orce cases have attracted the headlines. The wife of the celebrity golfer Colin Montgomerie received a £15m divorce settlement, and a court ruled that the wife of the Middlesbrough soccer star Ray Parlour was entitled to a one-third share of his future earnings to reflect her early role in promoting his talents. Last year, the House of Lords ruled that financier's wife Melissa Miller was entitled to £5m - a quarter of her husband's fortune - in compensation for a failed marriage lasting under three years, and despite the fact she had a career of her own. At the same time, Julia McFarlane was awarded annual payments for life of £250,000 from her ex-husband to compensate her for the successful legal career she would have had, had she not got married and raised a family.
But it is not just the wives of very rich men who do well. A survey published last year by the accountants Grant Thornton revealed that the average "pot of wealth" to be divided on divorce stood at £1m in 2005. Non-working wives generally got 53 per cent of it. "England is seen as the most 'divorce friendly' jurisdiction for women," said Andrea McLaren, the firm's senior specialist in marital settlements. "There are increasing numbers of people who have holiday homes and other assets abroad. The situation is complex and we would welcome EU-wide divorce rules."
The rest of Europe has got on with implementing the principles of feminism and equality, for which generations of women have fought long and hard. When couples split up, the general view is that pay-offs to wives, entirely separate from maintenance for children, should be along the lines of redundancy - a bit of a cushion to help with adapting to a new lifestyle. Laws are generally fairly tightly drawn, reducing the scope for argument. In England, however, the discretion allowed to judges means that case law comes to reflect the prevailing opinion.
It was the White v White ruling in 2000 which is deemed to have established new rules giving women a 50:50 entitlement to marital property. Pamela and Martin White, who had run a farm together, had been married for 33 years. Mrs White was offered £800,000 when the marriage ended, but the law lords decreed the sum should be increased to £1.5m.
Since then, the notion of equality seems to have been subsumed in the drive for women to present themselves as victims. When it comes to divorce, they are being seen here as largely incapable of supporting themselves, and are laying claim to inherited wealth, and the fruits of any previous career success their husband has brought to the marriage, in a way that would be unlawful in neighbouring European member states.
"You just have to look at who judges are," said William Longrigg, a solicitor who has regularly acted in cases where couples are fighting over assets worth millions. "They are part of the establishment, largely male, and drawn from a narrow social class. They still hold the view that women need to be protected. Other people may consider that paternalistic or patronising, but old habits die hard. Because they are allowed to operate so much discretion in divorce cases, we get all sorts of strange decisions." Like many of his legal colleagues, Longrigg believes an overhaul of the divorce laws is long overdue.
The latest high-profile case to make waves was the break-up of the television personality Chris Tarrant and his wife Ingrid. Their divorce last week followed revelations that Tarrant, 60, had a protracted affair. Tarrant is understood to be handing over half of his £10m property portfolio, plus £5m in lieu of maintenance payments, to compensate his wife for the failure of their 15-year marriage."I am deeply sorry for the hurt I have caused my loyal wife and wonderful children," Tarrant said in a statement issued last year. "I have only myself to blame for the breakdown of my marriage."
He may well have been happy to take the responsibility, but such a generous settlement would be unlikely even in countries such as Greece and Italy where gender roles would appear to be more traditional than ours. Their legal systems assume maintenance for ex-wives will be short-term. Most other regimes also assume women are capable of working once a toddler reaches three, while in countries such as Sweden, it is only available during a "transition period" to find work or undertake training. In Denmark, maintenance payments for ex-wives are a rarity. Other countries, including Belgium, Germany and France, also take the view that any assets acquired by the man before the beginning of the marriage remain his when the marriage ends. Prenuptial agreements decreeing the division of assets should the couple split up are still not recognised in England, but are binding in countries across Europe from France and Spain to Poland and the Czech Republic.
Of the 2.2 million marriages taking place an nually across the European Union, almost a fifth involve partners from different countries. The international divorce rate is not far behind, with 16 per cent of the 875,000 failed marriages involving couples from different countries.
Last month, the constitutional affairs minister Harriet Harman gave a speech in Brussels pointing out the urgent need for the European Commission to come up with new workable rules that could be applied despite differences in countries' legal codes. "It is important that family justice works across different European countries," she declared. "It is essential the commission brings forward proposals on which we can all agree."
If the changes are to work, however, English divorce legislation - or its interpretation - will have to change to bring us into line with Europe. Otherwise, lawyers say there will merely be fresh rounds of legal battles by wives arguing for the right of access to London's gilded divorce courts. Unhappy corporate wives have been known to confide how they deliberately lured their husbands to jobs in London, in the knowledge that after six months' residence they will qualify to present a divorce petition here. "We call it the race to court," said Anna Worwood of the law firm Manches. "It is well known that our system is favourable. The idea is you get your petition in first and claim a lot of maintenance from the courts here, before the husband launches proceedings in a less favourable jurisdiction."
Yet for many divorcees, the implication that they are seeking to "fine" ex-husbands is deeply offensive. A 43-year-old former solicitor and mother-of-two, who has just emerged from a protracted court battle with her ex-husband, said: "I do feel bitter. He was the one having an affair. I tried to save the marriage, I gave up my career to give him an easier life. If things had gone his way, I would have been left with almost nothing. I don't think it has anything to do with notions of feminism. It is fairness. It would be more to the point to bring European systems in line with ours."
Cate Briddick, a barrister from the pressure group Rights of Women, said the recent high-profile divorce decisions merely recognised the principles of equality between the partners in a marriage. "Until now, married women have suffered a huge disadvantage," she said. "The partners should come to a marriage as equals and should be treated as equals when they leave it. If you don't want that kind of relationship, you don't marry."
A spokesman for the Department for Constitutional Affairs said last week that Harriet Harman is due to attend a series of further meetings in Brussels to search for common ground in the divorce minefield. Although there is certainty that change will come, he acknowledged that, like divorce itself, the negotiations are likely to involve a bitter battle.
Tour divorce: how Europeans do it
Research by Lucy Knight
Denmark
Maintenance is not common in Denmark, and when granted it does not normally last more than ten years. In England, chances of gaining maintenance for life increased after the 2006 McFarlane case, in which the wife received £250,000 for life.
France
Maintenance for the wife can be claimed if she conceived during the marriage; it is paid until the child turns three. But all maintenance depends on the obligated spouse's financial ability to pay. Pre-marital assets and inherited wealth are excluded.
Spain
Most of Spain splits assets acquired during marriage equally. In Catalonia, however, these do not have to be shared. Maintenance depends upon factors including length of marriage, health, employment prospects and the parties' skills.
Sweden
In principle, all marital property is to be divided equally between the husband and wife. Anything acquired before marriage is subject to any pre-nuptial agreement. Ex-spouses are expected to support themselves, though maintenance may be awarded for a transitional period.
Scotland
Often seen as "mean" for its 50:50 division of matrimonial property, regardless of the length of the marriage. Still, inherited assets and assets acquired prior to marriage are excluded. Also, maintenance is usually paid for only three years from divorce unless there are exceptional circumstances.
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