THE JUDGE, THE JOB AND THE CONTROVERSY

Family Department of Rawlison Butler solicitors

Nigel C Winter – Partner in the Family Department of Rawlison Butler solicitors

In reading the headlines over the last couple of weeks, one would have thought that it is now settled law that every divorced Mum would be compelled to go out and “get a job”.

This follows the high profile divorce of Mrs W, the estranged wife of a Racehorse Surgeon and the selectively reported comments of the Judge in this case.

As ever, it pays to “let the dust settle” and consider what really happened.

Nigel Winter, Partner in Rawlinson Butler’s Family Team considers the real impact of the decision and why getting advice early should be high on the list for anyone contemplating divorce.

As every marriage is different, so is each divorce and the facts are critical in each case.

Mrs W (51) had been married to her husband Mr W(59) for 11 years and they had 2 children aged 10 and 16, the elder being at Boarding School.

The proceeds of sale of their £1.3million house were duly split and Mrs W was receiving £75,000 per year maintenance.

Mr W was concerned about his capacity to pay ongoing maintenance upon retirement. He therefore sought to have that maintenance significantly reduced.

The £75,000.00 per annum maintenance was for the 2 children and £33,200 of that was spousal maintenance for Mrs W herself. In addition to this Mr W was also paying the school fees.

Last year a Court ordered that the personal payments to Mrs W should taper off over a period of 5 years before ceasing upon Mr W’s retirement. It was this decision that Mrs W was seeking to appeal.

That appeal was unsuccessful and the comments of the Judge on hearing the case have been seised upon in isolation. But it is essential to remember that each case is judged on its own facts.

Critically, the media reports haven’t stated the overall wealth of the parties, merely that they had a £1.3million house.

Furthermore under Section 25 of The Matrimonial Causes Act the standard of living is a factor to be taken into account. It is a reality that people who are wealthy have a completely different expectation of life, which the Courts recognise. Using the house as a guide, they appear to be comfortable but not rich. However that may not be the case and provide an explanation as to why Mrs Ws solicitors pressed on with the appeal.

Mrs W will therefore be expected to go out to work.

The reasons for this are that her eldest daughter is at private school and her youngest daughter is aged 10 and therefore far less dependent on Mum than a toddler.

Thus, as with the passage of time, the relevance of given factors such as contributions to the family, shifts on a sliding scale. It is therefore no great hardship for a 10 year old to have their Mum and main carer working part-time. Furthermore it will enable that Mum to gain full-time employment at a later date.

The Judge

Get a Job

The law has therefore altered very slightly in cases on these facts.

But a completely different result may have been achieved if the children had been younger, the paying husband wasn’t approaching retirement, the wife had got an order for more capital and less income and significantly she had actually made applications for work or even accepted the principle that she had to work, even if she wasn’t able to find any.

In this case Mrs W was actually criticised for being “evasive” about her job prospects. In that regard she did not help herself.

The case is therefore very specific to its own facts. It will have an impact on high net worth families who have ongoing maintenance claims.

But it is a long established principle that financial independence should be achieved at the earliest opportunity and so parties have always been encouraged to achieve this, often by way of a larger capital sum (if available) in lieu of maintenance. However, there is now an overall trend towards limitations on the duration of maintenance and this case is one small part of that movement.

The process remains unchanged and it has been settled for a number of years that the starting point is that there should be a “yardstick of equality”.

Contributions made by the homemaker and breadwinner are of equal value. The Courts will endeavour to split equally the assets accumulated during the marriage.

In high net worth cases, inherited assets received before the marriage, may not be included. Having performed this exercise, the next stage is to decide if this is sufficient to meet the parties’ needs. In the event that the joint assets are insufficient to meets the needs of the family, then maintenance has a role to play. This is always subject to variation as circumstances change.

This decision doesn’t alter the basic reality that bringing up children, harms ones career unfairly or otherwise. Thus one party’s career will prosper whilst the main carer’s time is applied to the demanding role of being a stay at home parent.

The reality remains that even when the papers are full of reports that the Judge allegedly barked “get a job” at the wife, she will not be able to get as good a job as had she been able to draw upon 10 years of career progression rather than motherhood.

In the event that that second career doesn’t meet the needs then she will have to look elsewhere for those said needs to be met. And that is usually from the matrimonial assets. In short, a different route to the same outcome.

What this case DOES NOT rule, contrary to the impression that has been left in some of the media is that:-

  • All Mums must go out and get a job per se
  • Being a Mum is unworthy
  • This is a blanket rule and hereafter cases will stop being judged on their own facts

True, stay at home Mums, with children of minimal dependency, will be expected to find work if they can. There were very few cases in which the standard of living was so high and the parties’ expectations such that, they could expect maintenance forever, without having to work. When this actually occurred they usually ended up in the newspapers.

For the vast majority of couples contemplating a divorce the most important thing is to get the right and sensible advice at an early stage, free from the influence of an eye catching headline.

About Nigel Winter

Nigel C Winter is a partner in the Family Department of Rawlison Butler solicitors, based in the South East of England. He has been practicing family law for over two decades, is a collaborative lawyer and a regular contributor to a wide variety of publications on Divorce and Family Law.

website: www.rawlisonbutler.com

He has been practicing family law for over 2 decades, is a Collaborative lawyer and a regular contributor to a wide variety of publications on divorce and family law.

 Disclaimer – This document is provided for information purposes only and does not constitute legal advice.

 

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