D-day: splits in an age of fast-changing divorce rules
As the courts and Government shift the goalposts for separating couples, looks at how to end a marriage well
Judges are becoming tougher in their division of marital assets and older faces are filling up divorce courts: two tectonic shifts for which couples need to prepare, lawyers have warned. Married individuals born since 1960 are almost as likely to divorce as get cancer: the figures are 42pc and 50pc respectively. And while treatment for cancer has improved hugely in 58 years, the laws on divorce have resisted serious change.
But changes are afoot. The Government is considering a radical measure to remove blame from divorce, creating just one reason for a split: the irretrievable breakdown of a marriage. Its consultation closes this month, with rules due next year.
And two court rulings this summer have already, according to Elizabeth Hicks of law firm Bryan Cave Leighton Paisner, created “a real sea change in how they now deal with ongoing maintenance”. In Mills v Mills, the Supreme Court ruled that an ex-wife could not expect her former husband to pay twice for her housing costs if she were to lose her first lump sum through mismanagement.
In the Court of Appeal, in Waggott v Waggott, it was ruled that Mrs Waggott was not entitled to more maintenance from her ex-husband, an increase she claimed on the grounds that she had helped build his future earning potential by sacrificing her career during their 20-year marriage.
Phoebe Turner of Stowe Family Law described the latter case as “a significant step towards the English courts making less generous financial awards”. She added: “If this isn’t financial discrimination in favour of the breadwinner, what is?”
Divorce among opposite-sex couples, at 100,000 last year, is at its lowest level since 1973 and 40pc below its 1993 peak. But lower marriage rates among the young play a role in that decline; among older people, who are more likely to be married, divorce rates in 2017 beat the Nineties zenith.
With this rise of “silver splitters”, fighting over assets acquired when fewer women had independent wealth, coinciding with a tougher stance on settlements, individuals need to change the way they navigate the choppy waters of modern divorce.
Ms Hicks said courts would no longer routinely order spousal maintenance for life. Both parties now face an expectation to maximise their incomes and earning capacities.
“I have had a number of cases where the paying party in a couple, divorced for longer than they had been married, has instructed me to bring maintenance to an end,” she said.
“Historically, the court would err on the side of caution for the financially weaker party. My experience is that judges are now being far more robust. From the payee’s perspective, they could receive a lump sum to fund themselves in the future instead of an