All may be fair in love but not in divorce

‘All happy families,” as Tolstoy famously wrote, “are alike; each unhappy family is unhappy in its own way.” Each divorce is miserable in its own particular way too. That is why for all the best will in the world and all the best legal minds in the country, it is almost impossible to legislate justly for all the thousand and one combinations of grief and guilt in the dissolution of a marriage.

Three sensational divorce rulings were announced last week. Two went in favour of non-earning wives. “Wives Win Out!” “Payday for the wives who stay at home!” “Landmark victory for ex-wives!”, cried the headlines. Melissa Miller and Julia McFarlane, whose faces were splashed all over front pages and television screens, were supported by the law lords in their settlement claims.

Mrs Miller was told she could keep the £5m she was originally awarded after the break-up of her childless, 2¾-year marriage to a rich man, which comes to £4,935.83 a day as the tabloids unkindly pointed out, and Mrs McFarlane was told that as well as half the couple’s assets, she was entitled to £250,000 a year from her former husband, a tax specialist, for as long as she needs it.

Mr McFarlane refused to comment, perhaps wisely. His wife had given up a lucrative career every bit as good as his to look after their three children for many years. But Mr Miller was publicly outraged. “My £5m warning to wealthy husbands” was the headline of an angry interview he gave to the Jewish Chronicle. “It seems I have been penalised for the high standard of living I gave my wife . . . I believe there should be a fair compensation for the breakdown of a marriage, but surely this should not equate to a meal ticket for life after a short, childless marriage.”

This was swiftly followed by the third sensational divorce settlement last week; what is sauce for the goose is sauce for the gander these days. “The Men Strike Back!” screamed one headline. “After those landmark divorce payouts for two ex-wives, British Airways pilot wins £3.5m from the lady of the manor”, and she will have to sell her pretty manor to find the money.

The law lords’ findings were said to be the most important ruling for more than 20 years on the division of property upon divorce. And they were widely said to establish new principles, in a long overdue reconsideration of these painful matters. But I remain confused and unconvinced, in so far as I understand their rulings.

Of course the central concept of fairness that guided them must be right. But as Lord Nicholls began by saying on Wednesday, fairness is an elusive concept, “an instinctive response to a given set of facts”, and to achieve fairness in the division of property is “that most intractable of problems”. People’s instinctive responses vary, to put it mildly.

It has already been established that fairness means no discrimination between husband and wife; there should be no bias in favour of the earner, or against the homemaker. The new principle the law lords have introduced is one of compensation. If one spouse gives up earnings and future earning power to look after the family and support the other spouse’s career, she or he is entitled to compensation for that loss, as with Mrs McFarlane. Four cheers for that.

Clearly without the prospect of compensation, should the marriage fail, it is — and has been — an enormous risk for a woman to give up her career prospects, great or small, to stay at home to look after her family. It’s a positive disincentive to do so and this has been a great injustice. This new finding seems to me entirely fair. Marriage should indeed mean shared risk, shared reward, even after the divorce if necessary.

All the same, I do wonder whether the principle of fairness can really be stretched in the same sort of spirit to a massive pay out for a short, childless marriage to somebody filthy rich. The principle is the fairness of sharing in a married partnership.

On divorce each should be entitled to an equal share of the assets of the partnership — the fruits of the partnership — unless there is good reason to the contrary. And, the law lords found, this principle applies just as much to short marriages as to long ones. Try as I will, I cannot work out whether this includes assets brought into the marriage. Are they also fruits of the marriage and therefore the spoils of divorce? Wednesday’s rulings are without a doubt going to put people off marriage. Sure enough, various lawyers have already said precisely that. Mr McFarlane’s lawyer said that his advice to successful men would be “One: don’t marry. Two: if you do, make sure your other half is as wealthy as you are. Three: do a prenuptial agreement and keep your fingers crossed.” (This would apply to rich and successful women as well.)

As things stand now anyone with any assets or any serious earning power would do much better not to marry. However, this may not protect them for long. This week law reform advisers to the government will publish proposals that unmarried couples should have rights and duties to share their wealth on breaking up, yet another nail in the coffin of the institution of marriage.

This is all very depressing. It almost seems that the pursuit of fairness in marriage exposes its internal contradictions and ugly truths. People are not equal. Partnerships are not equal. People marry for all kinds of different motives, some of them very cynical. There cannot be any principles that govern the countless possibilities. No amount of elegant pronouncement can embrace the varieties of unhappy marriage.

That’s why I am sorry that the question of conduct in marriage has been clearly ruled out. Like many people I thought it might have been upheld from an earlier decision in the Miller case, but it wasn’t. Yet how people behave seems to me to make a great difference, in real justice, in determining fairness on divorce.

It’s true, as Lord Nicholls said, that it is notoriously difficult to unravel mutual recriminations and get to any sort of truth. Perhaps the courts are no place to try to do it, but in no other contract would the behaviour of the parties be ignored.

The time is long overdue for binding prenuptial agreements, and now — of course — binding pre-cohabitation agreements; prenups and cohabs. No one should embark on a serious relationship without taking very sober thought for the morrow.