THE PROCESS OF DIVORCE

The majority of the arguments centre around the division of assetsDivorce is an unpleasant process more awful when separating couples cannot reach agreement, engage in litigation. Suddenly the love of your life becomes opponent and contributions to marriage is pored over by lawyers and potentially judges. Divorce can become gendered family lawyers will be acutely aware of the unfortunate tendency to refer to the ‘breadwinning husband’ homemaking wife’ This does not reflect the reality of many modern marriages but often it is the wife who undertakes most childcare and domestic duties, while the husband has created most of the wealth for the family. Most people think of the actual divorce as the most stressful element but is resolved fairly swiftly. For most married couples this reflects the basic principle of their union: you are a team, you share responsibilities and funds, and make joint decisions. So what happens if not on the same side? It was a question posed by most cases.workdivorcecomp-medium_trans_NvBQzQNjv4BqqVzuuqpFlyLIwiB6NTmJwfSVWeZ_vEN7c6bHu2jJnT8

Millionaire businessman Mr Work was ordered to pay his wife half his £140m fortune in 2015, but fought the court’s decision, saying his wife ‘stayed home’ during 2 decades long marriage, during which she raised their two children. He argued he made all the family’s money and claimed to posses quality of genius enabled him to do this without support of his wife. Court of Appeal disagreed so dismissed Mr Work’s appeal. He must pay half of his fortune to ex wife, after judge accepts she is a ‘good homemaker and good mother,’ adding it was down to her willingness to move to Japan the husband was able to amass his wealth.78630843.jpg

The important decision for stay-at-home mothers raises questions of how judges should consider the spouses’ respective contributions in ‘big money’ divorce cases. Most people think actual divorce most stressful element but is usually resolved fairly swiftly. Majority of the arguments centre around division of assets or some technicalities or division of everything couple collectively own and earned during marriage. England and Wales is known to be one of the most generous jurisdictions there is. London is the divorce capital of world for fairness is central to process and in cases each party’s financial needs are met by the assets available, the starting point for division is 50:50. The Court has wide discretion when making financial orders and considers a range of factors. One factor is the contribution that both the husband and wife made. Thanks to new verdict, it is now settled law there should be no discrimination between breadwinner and homemaker. Staying at home, cooking, cleaning, reading to children is as important as working 12 hours a day on trading floor earning £1m a year. Mothers feel they make special contribution of ‘exceptional quality’ every day. Over the years various arguments used by mostly wealthy husbands to convince courts is award to their spouse to be less than 50 per cent. The favourite known as special contribution involves arguing financial input to marriage was significant award should be increased in their favour. To be successful need to amass significant wealth and show they used ‘exceptional quality’ or ‘genius’ to achieve this.divorce-370559.jpg

What about homemakers? How does this not discriminate against the wife, at home with the children every day? The wife quietly supporting her husband in his endeavours? What about spouse who sacrificed own successful career? Or those who are juggling both a career and childcare? Many mothers no doubt feel they make a special contribution of ‘exceptional quality’ daily. The Court of Appeal has confirmed this principle still stands though many hope it will in due course either limited or abolished by the Supreme Court. Litigation is bad enough without having to rummage into the detail of who did what and when to justify their contribution. In addition to cases where wife receives a substantial lump sum settlement such as Mandy Gray will get. In England and Wales one of the attractive forums in the world is for the financially weaker spouse paid maintenance for life. This concept is alien to nearby jurisdictions. Just across the border in Scotland, the maximum maintenance term is three years. However, this ‘meal ticket for life’ is becoming rarer. The Court looks at each spouse’s income and earning capacity. Consideration is given to whether or not having a qualification worked recently or assumes childcare responsibilities. The test is whether, in light of all these circumstances payee adjust to their financial independence without undue hardship. Judges want to see hard evidence of efforts of receiving party to maximise earning capacity.Family.jpg
Some wives may think its unfair if was agreed during the marriage that they would be supported financially and made sacrifices to this effect. Others may welcome opportunity to re-enter the working world; potentially a new lease of life after divorce. Although returning to work, for women, is unduly tough – despite the glut of ‘returnships’ now on offer from big companies. What is clear is society moves on so does the family law. Undoubtedly the problem is focus continues to be trying to achieve fairness for both husbands and wives. One imagines Ms Gray would agree that this has been achieved.

5 things about divorce Ayesha Vardag

1. It takes longer and be more harrowing than you think.

If everything can be agreed then it is possible for a case to be resolved in a few weeks but more likely exchanging disclosure, attending court hammering out a settlement will take around a year, and often more, and it can really wear you down. It is a marathon endeavour so important to keep your spirits up.

2. Ending marriage and finance issues are completely separate.

The reasons for the marriage ending will almost never affect the financial outcome and the court will not punish a spouse for marital indiscretions.

3. Courts less glamorous than you imagine.

Most English courts mahogany-panelled Victorian masterpieces, but most poorly maintained post-war monstrosities with hot, airless waiting rooms and windows that do not open, where you wait for hours on end, the tension is unbearable. Arbitration or a private family dispute resolution offers chance to move case to salubrious surroundings to settle it.

4. Nothing is “off the record”.

You are required to be fully frank about finances so lawyers are not allowed to help hide assets or lie to partner. To courts, honesty really is the best policy.

5. Can be cathartic experience.

Many people assume that divorce is an upsetting business. While it is never easy to bring a marriage to an end, for many the chance to move forward and build a new chapter of their life can be a rejuvenating experience. Usually the clients get happier, stronger and visibly empowered as process goes forward. Above all during the divorce ongoing conflict between parents can affect the children’s mental health, development of social and emotional skills, academic attainment and can impact their ability to form future relationships. It can also damage physical health, lasting through their adult lives into next generation as it starts early. Agreeing to disagree for the sake of the children is very helpful.

 

Alexandra Hirst is a solicitor specialising in family law at Boodle Hatfield