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

The Sunday Telegraph - Money & Business - - Money -

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

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