Divorce: no more lifelong support

Top British lawyers tell Victoria Lambert why women need to take a reality check as the BBC prepares a new courtroom drama.

It is often said there are no winners in the English divorce court, but Tatiana Akhmedova must have cheered when she was awarded the family superyacht, Luna – complete with anti-missile system and 20m swimming pool – as part of her £453-million (R7.7-billion) payout from her ex-husband, Farkhad Akhmedov.

It had taken two years in court for Tatiana to get to this point, with a judge granting her possession of the luxury cruiser last Thursday, after Farkhad took “elaborate steps” to hide his assets after the 2016 settlement.

Kim Waggott must be feeling even more frustrated. Her attempts to extract an improved deal from her millionaire husband, William, have just seen London’s Appeal Court overturn a previous settlement of £175 000 a year – for life – on top of a £10-million (R172-million) divorce settlement. Instead of the £198 000 (R3.4-million) a year she was hoping to see her maintenance increased to, Lord Justice Moylan ruled last week that she must get a job, and that payments will now stop altogether in 2021.

Both women, however, will be thanking their stars that they are not in the shoes of Tini Owens, a millionaire Worcestershire farmer, who was refused a divorce from her husband, Hugh, by Judge Robin Tolson QC in 2016, as he ruled her grounds of unreasonable behaviour were insufficient to end the marriage.

Mrs Owens has been forced to take her case to the Supreme Court with a date set for next month.

Although few warring couples will be faced with the luxury of squabbling over millions in assets and salaries, most divorces are tainted by frustration, antipathy and downright spiteful behaviour, as a new BBC One drama The Split deftly demonstrates.

The series, which starts next week, revolves around a family of high-profile London divorce lawyers, their demanding clients and their own complicated dynamics.

Emma Hatley, of Stewarts law firm in London, who acted as legal adviser to The Split, confirms that recent decisions in divorce courts have sent “shockwaves” through clients.

“Divorce is a highly discretionary area of law,” she explains. “And court decisions are changing as society alters.

“The presumption of lifetime maintenance for one partner – usually the wife, for example – is changing.

“Courts are much keener on terminating dependency by getting a clean break. But this is easier where there is a large pot of matrimonial assets. Most couples won’t have the capital between them to achieve that.”

Not all changes are negative. Couples sharing the matrimonial house alternately – known as bird-nesting – is one new trend, allowing children to stay put and helping families to conserve finances.

Divorce selfies are popping up online, too, as more amicable exes find closure in emulating their wedding pics. But divorce coach Emma Heptonstall says that many of the older women she sees still think they will get lifelong maintenance.

“I have to make it clear that – depending on circumstance – you might get spousal maintenance for three to five years. You need to think about a job, retraining, your husband will not be expected to support you forever.”

Most, says Heptonstall, author of How to Be a Lady Who Leaves, take her advice “on the chin”.

Exceptions will occur; one of her clients is in her 50s and has not worked for 15 years. In addition, she has mental health concerns that would make it hard to start again in the workplace.

“Her husband knows he will have to help.”

But on the whole, Heptonstall adds: “Women need to take a reality check. The days of getting married and being provided for are over.”

What the new mood on clean breaks ignores, says Sarah Anticoni, a partner at Charles Russell Speechlys, is that for many women, re-entering the workplace in their 50s is fraught with problems.

“The societal expectation that women work and should be able to meet their own income needs doesn’t lie kindly with gender pay gaps or getting back into work. Many may want to start their own business, but it is difficult to get a court to agree that a woman needs a capital base to do so.”

About 5 000 men a year receive settlements from breadwinning wives after a divorce, usually as capital, says Anticoni. “I currently have cases where maintenance is paid by a wife to a husband,” she says.

“The higher up the finance bracket you get, the more likely it is.”

These cases are not common, she adds.

“Women earn less or have less income or resources than men across the world.”

But where there is serious wealth, men can expect to do well: in 2008, TV star Anne Robinson settled her divorce from her husband of 27 years, paying him £20-million (R343-million). Madonna reportedly paid Guy Ritchie up to £50-million (R869-million) when they divorced as a capital sum.

Traditional male breadwinners should be aware of another “live issue“, says Hatley.

“The idea that someone has made a special contribution to the size of the marital pot is coming under scrutiny. It’s no longer good enough to be well-rewarded for being great at your job, a judge would expect to see a spark of genius, too.”

She points to the case of Nick Robertson, founder of internet shopping business Asos, who was forced to give his wife £70-million (R1.2-billion), instead of the £30-million (R516-million) he had first offered.

“The judge pointed out that Robertson had not invented shopping or the internet,” explains Hatley.

As the wife was described as an excellent homemaker, the judge decided that to treat Robertson’s special contribution as “unmatched” would be “highly discriminatory”.

One of the biggest changes to UK divorce will come with the Ministry of Justice scheme currently being rolled out that will allow couples to file for uncontested divorces online.

The scheme is designed to take pressure off overcrowded courts where, thanks to the loss of legal aid, many more beleaguered spouses now represent themselves in person.

Anticoni worries about vulnerable men or women without independent legal or financial advice at this point: “When a relationship is foundering, you are probably not in your best cognitive state, it’s hard to make decisions generally.

“And the age of divorcees is going up – I have plenty of clients over 80; they don’t do anything online. I worry those people will tick the wrong boxes. And if they fall into penury as a result, it will be taxpayers who will pick up the cost.”

All the legal experts agreed that some changes are due, but don’t seem likely, thanks to government time being taken up with Brexit – as well as a general lack of will.

One of the problems Anticoni is most concerned about is the trend for cohabitation.

“Most don’t realise that if they cohabit for a few years and then marry, a judge will take the early years into consideration. But if you cohabit and don’t marry, there’s no legal protection unless children are involved.”

Hatley says: “There is a universal call for no-fault divorce. The current system is archaic – it causes acrimony – but it is hard to know what to replace it with if you want to eliminate fault, so it is not a knee-jerk reaction.”

Some things never change, however. Heptonstall admits the one piece of advice she would give to women would be: “Never give up financial control.”

Anticoni adds: “For a poorer woman, marrying with a premarital agreement is better than not marrying, even if you get divorced. For a wealthy man, my advice is always – don’t get married, just live together.” – The Daily Telegraph