This season, fans of The Real Housewives of Cheshire watched as the public break-up between Lauren Simon and her ex-husband Paul Simon reached new emotional levels. Lauren’s ex-husband, Paul, has accused the English court system of being discriminatory by favouring the ‘homemaker’ over the ‘breadwinner’ in a family, as he launches an appeal of their divorce settlement.
These allegations are a consequence of the family court ordering Paul to pay a capital award (one lump sum) of £3 million to Lauren. Paul has since argued that the courts have discriminated against him by not appropriately taking into consideration the sums available, which has forced his hand to pay £1 million more than the £2 million the couple had between them in liquid assets (money in bank accounts etc.). However the judge found they in fact had assets in excess of £9 million. He argues she was wrong and failed to adequately take into account his needs. Whilst the finances in this case are complex, it does place an interesting spotlight on gender discrimination and whether the family courts are guilty of it, or whether the judge in that particular case just applied the law incorrectly.
Over the last decade, England has attracted some of the largest global divorces, and is known as the ‘divorce capital of the world’. This appears mainly to do with the fact that In English and Welsh law the starting point for division of the matrimonial assets is equality, even if it is the efforts of the higher earning spouse that may have amassed the bulk of these assets. The English and Welsh courts are known for equating the financial contributions of the breadwinner with the domestic contributions of the homemaker. This can often result in longer standing maintenance awards than you might get in other jurisdictions and has given rise to the rather unattractive suggestion that receiving spouses have been given a ‘meal ticket for life.’
Internationally the English and Welsh jurisdiction is known for giving more protection to the financially weaker spouse than in other jurisdictions. Aside from the starting point of a division being equality, the Court will depart from an equal split where some factors are present. This is usually need, particularly in a case where there isn’t ‘big money’. Non matrimonial contributions can also lead to a departure from an equal split in favour of one or other party. In a ‘needs case’ a typical scenario may be a wife who hasn’t worked for 10 years while raising the parties’ children, who will remain the children’s primary carer after the divorce. As the children are the Court’s ‘first consideration’ this usually means that, as their primary carer, the home maker’s needs will be put first. So if there is not enough money to rehouse the husband and the wife, the wife and children will take precedence. The wife may also need maintenance while the children are young and she is not able to fully deploy any earning capacity she might have.
Because the financially weaker party is protected in this way many wealthier individuals will try hard to avoid litigating their divorce finances in the UK as they fear they’ll be subjected to a worse deal. This was the situation between Pauline Chai, former Miss Malaysia and Khoo Kay, former boss of clothing brand Laura Ashley. Dr Khoo had wanted their divorce to be argued in Malaysia, based on the location of their family home and other factors, but also knowing he would get a better divorce settlement. As it stood he lost and the Family Division of the High Court ordered Dr Khoo to pay £64 million of their £160 million marital assets to his ex-wife.
Upon the divorce the capital assets will be split but on top a party may receive maintenance. Another reason why some argue that discrimination is present in the system is down to the ability to award ‘joint lives’ maintenance. This is an order that allows the financially weaker party to receive maintenance for the rest of their life, (as long as the payer lives). Either party can apply to ask the court to vary or terminate this order while it subsists. Although the English and Welsh Courts have been moving away from these orders in recent years, the Court of Appeal said in a case last year that ‘ long term maintenance can be required as part of a fair outcome’ and that the ‘meal ticket for life' phrase can be used as an ‘unfair trope’, though he set aside the joint lives order in that case. These orders are in marked contrast to the Scottish system which places a cap on how long maintenance has to be paid for after the marriage – no more than three years in most cases. Baroness Deech has been trying to introduce changes to the English and Welsh system for a number of years and most recently put forward her Divorce (Financial Provision) Bill. This proposes a maximum term for maintenance of 5 years unless the court is satisfied that there is no other means of making provision for a party and that they would otherwise be likely to suffer serious financial hardship as a result. However, this law has been stalled, and doesn’t look like it will progress further. It has received criticism from a number of high-profile family lawyers.
The reason? The advantage of the current system is that the Court retains discretion to deal with each case in a uniquely bespoke way, to tailor its awards to the circumstances of each case, and no two cases are ever the same. The rational behind the protection the Courts give the financially weaker party is that by staying home, looking after the children, that party has damaged their own career prospects and their ability to generate income. That is a non-financial contribution they have made to the family, a contribution, which has enabled the breadwinner to go out and forge a career unhindered by the responsibility of the home. It is important that that principle continues to be capable of recognition in the orders the court makes. What then though, of the working mother and her contribution? Baroness Deech feels her reforms promote the autonomy of women however the modern reality is that most wives aren’t dependant on their husbands and the law as it currently stands gives room to reflect this.
Whilst all is not fair in love and war, it is imperative that the scales are balanced fairly and many people agree that the law does need reform, but perhaps after a more holistic considered intervention from the Law Commission. We will have to watch this space to see if Paul Simon is successful in his discrimination battle against the court and whether it will trigger further reform in this area.
Words by Rhiannon Lloyd, Barrister at 4PB https://www.4pb.com/barrister-profile/rhiannon-lloyd/
Tagged in Divorce