Divorce - Do women win too much?

For divorcing wives, England is now seen as by far the most generous country in Europe, with some la

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.

This article first appeared in the 19 February 2007 issue of the New Statesman, Iran - Ready to attack

ANDRÉ CARRILHO
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The Great Huckster: Boris Johnson’s reckless distortions of history

As a scholar of Churchill, Boris Johnson could have articulated a constructive vision for Britain and Europe. Instead, he wilfully manipulates and distorts the historical record.

This month, 76 years ago, the defeated British Expeditionary Force was making for the Channel ports. Thanks to the ferocious resistance put up by the garrison at Calais, and Hitler’s hesitation, the bulk of the men were safely taken off the beaches at Dunkirk to fight another day. Whatever their private feelings during those terrible hours may have been, most of them knew even then that they would return to Europe to finish the job.

Their forefathers had been intervening in Europe for as long as anyone could remember. From Shakespeare’s Henry V through to Elizabeth’s support for the Dutch revolt, the Second Hundred Years War against Louis XIV, the French Revolution and Napoleon, and the First World War, London had always been profoundly invested in the continent. Defending the “liberties of Europe” and thus British freedoms was what Englishmen and Britons did. It was part of what they were.

In early June 1944 – on D-Day – the British, Americans and Canadians hurled themselves into northern France as their ancestors had done since the late Middle Ages. At least one British officer tried to inspire his men that morning as the landing craft approached the strongly defended beaches by reading out Henry V’s speech before Harfleur, in which Shakespeare has him exhort the men, “once more unto the breach”. The film version of the play was released that same year, dedicated to the “commando and airborne troops of Great Britain”. In the popular mind, these Englishmen and their North American descendants were part of the continuity of a European story that went back to the medieval English empire in France.

Some of those liberating Europe thought that they could not simply return to “business as usual” after the war. One of them was the later Conservative prime minister Ted Heath, the man who took Britain into the European Economic Community in 1973. He first defended Liverpool as an anti-aircraft gunner and then took the fight to Hitler as an artillery man during the campaign in north-west Europe. Over the course of the next 11 months, Heath and his comrades fought their way across the traditional battlefields of northern France and the Low Countries, including the Walcheren swamps in which their ancestors had been mired in Napoleonic times; and through western Germany into the centre of the Reich. They were to stay there, at the heart of Europe, for some 60 years. They created a stable European order, based on Nato and what was to become the European Union, which remains with us to this day.

Now the Brexit stalwart Boris Johnson, my fellow historian, claims that it was all in vain. “The European Union,” he says, “is an attempt to do what Hitler wanted by different methods.” Worse still, the EU is a German plot, whose currency, the euro, was “intended by the Germans” to “destroy” Italian manufacturing and generally grind the faces of its unfortunate members. Johnson has also invoked the spirit of Churchill in support of his arguments. He has since doubled down on his remarks and has received support from other members of the Brexit camp, such as Iain Duncan Smith, though not apparently from more informed figures such as Michael Gove. Unfortunately, Johnson’s claims are as historically wrong as it is possible to be, comparable in their crassness only to his predecessor as London mayor Ken Livingstone’s suggestion that Hitler supported Zionism.

Far from supporting European political unity, Hitler was violently and explicitly opposed to the idea. This was partly because it was proposed by his opponents on the “left” of the Nazi Party, such as the Strasser brothers. They belonged to the “anti-imperialist” wing of the Nazi Party, which wanted a pan-European front against the Jews and the British empire. Hitler’s hostility to the European project was also in part due to a racial antipathy to the half-Japanese Richard, Count Coudenhove-Kalergi, the author of the widely discussed book Pan-Europa (1923). One way or the other, Hitler condemned the Pan-Europa movement as “a fantastical, historically impossible childishness”, which would be no more than a “Jewish protectorate”.

Nor did he hold back with his alternative view of what the continent should look like. “The solution,” he wrote, “cannot be Pan-Europa, but rather a Europe of free and independent national states, whose spheres of interest are separate and clearly delineated.” Comparisons involving Hitler are usually odious but if one is going to draw parallels, his view of European integration then was much closer to that of the Brexiters today than that of the advocates of the European Union.

Moreover, the European project did not originate in the Nazis’ attempt to mobilise the continent on their behalf but rather in the resistance movement against Hitler. Take Sicco Mansholt, who hid Dutch resisters on his farm during the war, at great personal risk. He subsequently became the Dutch minister for agriculture and one of the fathers of the Common Agricultural Policy (CAP). Take Altiero Spinelli, the Italian anti-fascist who spent ten years in Mussolini’s prisons. It was there, in June 1941, at the height of Hitler’s power, that he secretly wrote his draft manifesto For a Free and United Europe.

Take Paul-Henri Spaak, later prime minister of Belgium, first president of the Common Assembly of the European Coal and Steel Community – the forerunner of the EU – and secretary-general of Nato. He was forced to make a daring escape from wartime Europe in the false bottom of a lorry in order to carry on the struggle against Hitler in exile. Indeed, across Europe there were thousands of men and women who fought, died, were imprisoned or tortured because they believed in a free and united Europe. To suggest that they were trying to achieve the same thing as Hitler by different methods is an outrageous slur on their memory. If Johnson ever makes it to the top of the Conservative Party, and thence to No 10, he will have a lot of explaining and apologising to do in Europe.

***

As if all this were not bad enough, Boris Johnson’s invocation of Churchill flies in the face of everything we know of the great man’s attitude to the European project. To be sure, he began as a Eurosceptic. When army reforms were proposed in 1901 to support the creation of a substantial land force on the continent, the young Winston Churchill was one of the few MPs to oppose them on the grounds that the navy, rather than the army, was of crucial importance to British security. Writing in the Morning Post, Churchill argued that “history” and “geography” showed that the British empire was “essentially commercial and marine”, and had been defended by armies of foreigners.

As the German threat loomed large, however, he changed his mind. Churchill, then first lord of the admiralty, told the Australians and New Zealanders in April 1913 that Europe was “where the weather came from”. It was the terrible storm of the First World War that caused Churchill not only to believe in the centrality of Europe but in the need for European – or at least continental European – unity.

In May 1930, the president of the Pan-Europa Union, the former French prime minister Aristide Briand, made a formal proposal for a “European federal union” based on a “European conference” with an executive to co-ordinate economic and military co-operation. The British government of the time rejected the surrender of sovereignty involved but many were sympathetic to the idea of continental European union under liberal auspices. The arch-imperialist Leo Amery, secretary of state for the colonies and later a powerful critic of appeasement, was a strong admirer of Coudenhove and his projects, which he regarded as the extension of Anglo-Saxon principles to the continent.

Likewise, Churchill, then chancellor of the Exchequer, told parliament in June 1925 that he hoped that one could “weave Gaul and Teuton so closely together economically, socially and morally as to prevent the occasion of new quarrels and make old antagonisms die in the realisation of mutual prosperity and interdependence”. Then, he continued, “Europe could rise again”. Churchill did not believe, however, that Britain should be part of any continental political union. “We are with Europe, but not of it,” he wrote in 1930. “We are linked but not compromised. We are interested and associated but not absorbed.”

In mid-June 1940, however, as western Europe buckled under the Nazi onslaught, Churchill went a step further. He made an unsuccessful offer of union with France – involving joint citizenship and a common government – designed to lock the French into the war effort against Germany or, failing that, to secure their fleet. The Nazi threat was so existential, in other words, that it justified the surrender, or at least the pooling, of British sovereignty.

When the threat of invasion passed, Churchill returned to the theme of continental European integration. In October 1942, he “look[ed] forward to a United States of Europe in which barriers between the nations will be greatly minimised. He “hope[d] to see the economy of Europe studied as a whole”, and the establishment of a council of “ten units, including the former Great Powers [and thus presumably Britain], with several confederations – Scandinavian, Danubian, Balkan, etc, which would possess an international police and be charged with keeping Prussia disarmed”.

Churchill returned to the subject immediately after the war, as the Soviet threat menaced Europe. In a speech at Zurich University in September 1946, he urged the continent to “unite”, with Britain supporting the project from the outside. Once again, including the Germans was central to his conception. Churchill urged no less than the full political union of the continent in a “kind of United States of Europe” under the “principles embodied in the Atlantic Charter”. He again praised the work of Hitler’s bugbear, Count Coudenhove-Kalergi’s “Pan-European Union”.

Churchill demanded an “act of faith”, beginning with “a partnership between France and Germany”, assembling around them the states of Europe “who will and . . . can” join such a union. Its purpose was clear, namely “to make the material strength of a single state less important. Small nations will count as much as large ones and gain their honour by their contribution to the common cause.”

Moreover, Churchill argued, “The ancient states and principalities of Germany, freely joined together for mutual convenience in a federal system, might each take their individual place among the United States of Europe.” In short, the new polity was designed to solve not merely the European question but the German problem, the two being one and the same. Once again, Churchill conceived of this United States of Europe alongside but not including the United Kingdom and the British “Commonwealth of Nations”, that is, the empire. Instead, he believed that Britain should be one of the “sponsors of the new Europe”.

Churchill’s attitude to continental European union was, unlike Hitler’s, highly positive. For Johnson to suggest, therefore, that he is donning the mantle of Churchill to prevent the current European Union from achieving Hitler’s aims through other means is a complete travesty of the historical truth.

Far from being intended to promote German power, the European Union was designed to contain it, or at least to channel it in the right direction. Contrary to what Johnson suggests, the euro was not planned by Germany to subjugate Italian industry or any other European economy. It was insisted on by the French to decommission the deutschmark, which they described as Germany’s “nuclear weapon”. Likewise, the Germans are not incarcerating the Greeks in their European prison: Greeks are desperate not to be released back into the “freedom” of the drachma and the corrupt national politics that they joined “Europe” to escape. If there is one thing worse than being dominated by Germany in the European Union, evidently, it is not being in the EU at all.

Boris Johnson may not have known the details of Hitler’s attitude to European integration, or the European sympathies of many resisters, but he is very well informed about Churchill and Europe. His ignorance is thus not just a matter of making mistakes; we all make those as historians. Nor is it simply a matter of these mistakes being, like bank errors, in favour of one’s own argument. To say that Johnson knows better is not a figure of speech: he has shown in print that he does. His recent book, The Churchill Factor, contains a very balanced account of Churchill’s position on Europe, including most of the statements listed above.

In making his arguments, Johnson is not appealing to the baser instincts of the electorate; it is far worse than that. The deeply ingrained British instinct to fight European tyranny is not base but fine. What Johnson and those who defend his rhetoric have done is to take something virtuous and pervert it. The European Union is not, as we have seen, the continuation of Hitlerism by other means and to suggest so is blatant manipulation.

The shame of it is that there is a perfectly plausible Eurosceptic argument on its own merits. It was well stated by Michael Gove at the start of the campaign. It insists on the historical distinctiveness of the United Kingdom, whose history does indeed set it apart from the rest of the continent. It makes the case for a reform of the EU. It rejects the scaremongering of “Project Fear”, on the cogent grounds that the United Kingdom has the political, economic and military weight to prevail even without the stabilisers of the EU. It scorns President Obama’s impertinent warning that Britain would have to “get to the back of the queue” for a trade deal after Brexit, with a reminder that Britain and her empire defied Nazi Germany for two years before the Americans joined the fray, when Hitler declared war on them (not vice versa). One does not have to accept every detail of this discourse to feel its force. Uniquely among the democratic European powers, the United Kingdom can “stand alone” if it must or wants to.

The Achilles heel of the Brexit campaign, however, is that it has no viable vision for continental Europe. Even Gove falls down here, as his idea of a British departure unleashing a “democratic liberation” of the continent is pure fantasy. It seems odd to have to explain this to Brexiters but Britain really is special. Casting off the bonds of Brussels will not emancipate mainland Europe but let loose the nationalist and xenophobic demons tamed by the integration project. This is clear when we look at the rise of radical anti-European parties in France, Hungary, Austria, Germany and many other parts of Europe as the European project fragments. These developments should not surprise anyone who knows the history of mainland Europe before the mid-20th century and to a considerable sense beyond.

***

 

Most of continental Europe had failed before 1945 and even now the European Union is only failing better. Unlike virtually every other European state, which has at some point or other been occupied and dismembered, often repeatedly, England and the United Kingdom have largely – with very brief exceptions – been subjects of European politics, never merely objects. In this sense, too, she is exceptional. Yet this should not be an occasion for British triumphalism. Whatever the outcome of the referendum on 23 June, the European Union is not an enemy of the United Kingdom. It should best be understood as a modern version of the old Holy Roman Empire; hapless and officious, perhaps, but not malign. It needs help. The failure of the European project and the collapse of the current continental order would be not only a catastrophic blow to the populations on the far side of the Channel but also to the United Kingdom, which would be
directly exposed to the resulting disorder, as it always has been.

In short, the Brexit camp in general and Boris Johnson in particular are missing a great opportunity in Europe. A student and partisan of Winston Churchill, the former mayor of London was qualified to articulate a constructive vision for Britain and the continent. He has failed to understand that the only safe way that Britain can exit from the European Union is not through Brexit – whose consequences for mainland Europe would be dire – but through Euroexit; that is, a Churchillian political union of the continent in close co-operation with the UK.

Instead, in addition to their distortion of the historical record, Johnson and the Brexit camp are committing the cardinal sin of making a decision before they need to. The European Union is not, sadly, a United States of Europe, even though it needs to become one to survive, and is becoming less like one every day. If and when it musters the strength for full political union, there will be plenty of time to leave. Meanwhile, the EU needs all the support that Britain can give it from within.

In 1940, the British forces had been defeated and retreat was the only option. The situation could not be more different today. This is no time to head for the beaches in what will be a legislative Dunkirk of epic proportions, with incalculable consequences not so much for Britain as for the rest of the continent. Unlike in 1940, the United Kingdom is not being forced out of Europe. It has hardly begun to fight there, unless shooting oneself in the foot through Brexit counts as combat. The battle in Britain today is a distraction from the great struggle on the mainland. There is much work to be done in Europe. It is time the British stop tearing themselves apart and return unto the breach once more.

Brendan Simms is a NS contributing writer. His latest book is “Britain’s Europe: a Thousand Years of Conflict and Co-operation” (Allen Lane). He is president of the Project for Democratic Union

This article first appeared in the 19 May 2016 issue of the New Statesman, The Great Huckster