Do judges favour wives?

Phrases such as “judges side with women” and “women fare better in divorce settlements” are often thrown around.

High-profile cases such as Sharp v Sharp, where the Court of Appeal departed from equally sharing the wife’s assets built through her own successful career, and our very own landmark case of Radmacher v Granatino, where the German heiress was able to retain her fortune post-divorce, have further fueled these claims. But what is the reality behind such assertions? Are women truly favoured in divorce settlements, or is the truth more nuanced?

This article will briefly discuss the broad principles considered by the courts when making financial settlement orders, the assumption that wives are awarded “meal tickets for life” and the origin of such beliefs.

The guiding principles of the court

Over time, the family court’s approach to resolving financial matters upon a divorce has evolved. Today, to achieve a fair outcome, the court takes into account what is known as the ‘section 25 factors’ and three overarching principles:

Section 25 factors

1. The income, earning capacity, property and other financial resources with each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;
2. The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
3. The standard of living enjoyed by the family before the breakdown of the marriage;
4. The age of each party to the marriage and the duration of the marriage;
5. Any physical or mental disability of either of the parties to the marriage;
6. The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
7. The conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;
8. In the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit, which by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

Principles

• Sharing
• Needs
• Compensation

In considering the above, the court’s implicit objective is to achieve a ‘fair’ outcome, as stated in White v White, and avoid discrimination between spouses based on their respective roles of money-earner and homemaker.

The court’s starting point is to divide the marital assets equally unless there are good reasons to justify an unequal division. This approach is based on the fundamental concept that marriage is a partnership of equals. So, when the partnership ends, the parties should share "the fruits of the matrimonial partnership" on a 50:50 basis unless there are good reasons to the contrary. Therefore, it does not matter whether the wife is the homemaker or money-earner; the court works to remedy the position of the financially weaker party, whether that be the husband or the wife, and achieve a fair outcome on divorce.

On the topic of joint lives spousal maintenance, or “meal tickets for life”

Due to the fundamental principle of ‘sharing’ and the wide discretion afforded to judges in financial remedy proceedings in England and Wales, London has attained the title of “the divorce capital of the world”. It can be an attractive jurisdiction for financially weaker parties, who have a connection to England or Wales, to bring claims because of the potential to receive more generous awards than they may be granted in other jurisdictions.

Historically, the courts commonly awarded spousal maintenance on a joint lives basis (i.e. until the death or remarriage of either party). However, such orders are now increasingly rare as the courts seek to limit the term of the order to how long is necessary for the recipient to transition to independence.

A particularly high-profile case heralding the end of joint lives maintenance was Wright v Wright [2015] EWCA Civ 201, where Mrs Wright, the ex-wife of a millionaire racehorse surgeon, was told to find a job and stop relying on being “supported for life” at Mr Wright’s expense. Mrs Wright had not worked since their divorce, instead relying on over £30,000 of spousal maintenance each year paid by her ex-husband. Mr Wright sought to reduce these payments given his nearing retirement a position which Lord Justice Pitchford agreed with, noting that the wife “had done nothing…to look for work, or to retrain or to prepare herself for work” and that her unwillingness to look for work was not a reason to accept indefinite maintenance payments.

Similarly, in Waggott v Waggott [2018] EWCA Civ 727 the court reduced a joint lives maintenance order to a term order lasting just under three years, ruling that Mrs Waggott should be expected to use some of her ’free capital’ to meet her income needs. The Court of Appeal rejected Mrs Wright’s claim to share in  the husband’s earning capacity post-separation and emphasised that sharing should end "at or within a short time of the end of the relationship."

So, why was it ever believed that wives are favoured?

Whilst it is undeniable that the vast majority of spousal maintenance orders are made in favour of wives, many – likely including the judges who issue these orders – will argue that this reflects societal norms.

Historically, gender roles have positioned wives as more likely to be financially dependent on their husbands and labelled ‘homemakers’. Even today, it is still more common for a wife to be financially dependent on her husband than the other way around. This is particularly pertinent for marriages in which there are children where women have often put their careers on hold during their upbringing.

Hence, the sharing principle often favours the wife and courts will often employ spousal maintenance orders to redress any financial imbalances.

This is, however, the legacy of increasingly outdated gender roles. As fewer women live their marital lives as the financially weaker party, fewer spousal maintenance orders will be granted to them upon separation. Hence, the notion that “judges favour wives” is one that is unlikely to stand the test of time.  

Related reads:

Vardags | Is divorce fair? A closer look at ‘meal-tickets for life’

Vardags | "Get a job!": Judge tells wife to go back to work

Vardags | Baroness Deech: spousal maintenance law "an impediment to equality"