It goes without saying that divorce is an unpleasant process. But it becomes even more awful when the separating couple cannot reach an agreement and find themselves engaged in litigation. Suddenly the love of your life becomes your opponent and each of your contributions to the marriage is pored over by lawyers and potentially judges.
Divorce can become quite gendered - family lawyers will be acutely aware of the unfortunate tendency to refer to the 'breadwinning husband' and' homemaking wife'. Of course, this does not reflect the reality of many modern marriages. But still, more often than not, it is the wife who has undertaken most the childcare and domestic duties, while the husband has created most of the wealth for the family.
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 when you are no longer on the same side?
It was a question posed by the case of Randy Work and his ex wife Mandy Gray.
Millionaire businessman Mr Work was ordered to pay his wife half his £140m fortune in 2015, but fought the court’s decision, saying that his wife ‘stayed at home’ during their two decades long marriage, during which she raised their two children. He argued that he made all the family’s money and claimed to posses a “quality of genius” that enabled him to do this without the support of his wife.
Yesterday, the Court of Appeal disagreed and dismissed Mr Work’s appeal. He must now pay his estranged wife half his fortune, after the judge accepted she was a 'good homemaker and good mother', adding that it was down to her willingness to move to Japan that the husband was able to amass his wealth.
It raises questions about how judges should consider spouses' respective contributions in 'big money' divorce cases.
Most people think of the actual divorce as the most stressful element but this is usually resolved fairly swiftly. The majority of the arguments centre around the division of assets - save for some technicalities, the pot for division is everything the couple collectively own and have earned during the marriage.
England and Wales is known to be one of the most generous jurisdictions there is. Indeed, London is called the 'divorce capital of world'. Here, fairness is central to the process and in cases where each party's financial needs are met by the assets available, the starting point for division is 50:50. The Court has a wide discretion when making financial orders and must consider a range of factors. One such factor is the contribution that both the husband and wife have made.
It is settled law that there should be no discrimination between the breadwinner and the homemaker. Staying at home - cooking, cleaning and reading to the children - is as important as working 12 hours a day on the trading floor and earning £1m a year.
Over the years, various arguments have been used - mostly by wealthy husbands - to convince the courts that the award to their spouse ought to be less than 50 per cent. A favourite is what is known as 'special contribution', which involves arguing that their financial input to the marriage was so significant that the award should be increased in their favour. To be successful, they need to have amassed significant wealth and shown that they have used some 'exceptional quality’ to achieve this.
But 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 the spouse who has potentially sacrificed their own successful career? Or those who are juggling both a career and childcare? Many mothers will no doubt feel they make a special contribution of ‘exceptional quality’ every day.
The Court of Appeal has confirmed today that this principle still stands - though many hope it will in due course be either strongly 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 those cases where the wife receives a substantial lump sum settlement - such as that Mandy Gray will now get - England and Wales is one of the most attractive forums in the world for the financially weaker spouse, with the paying party sometimes being ordered to pay maintenance for life.
This concept is alien to many nearby jurisdictions. Just across the border in Scotland, the maximum maintenance term is usually 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 they have qualifications, have worked recently or must assume childcare responsibilities. The test is whether, in light of all of these circumstances, the payee can adjust to financial independence without undue hardship. Judges want to see hard evidence of the efforts of the receiving party to maximise their earning capacity.
Some wives may think this is unfair if it was agreed during the marriage that they would be supported financially and made sacrifices to this effect. Others may welcome the 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 that as society moves on, so does family law. While there are undoubtedly still problems, the focus continues to be trying to achieve fairness for both husbands and wives. One imagines Ms Gray would agree that, this has now been achieved.
Article first appeared in The Telegraph