‘It’s not fair!’: Divorce from the view of the financially stronger partner

This week, the Supreme Court considered whether businessman Graham Mills should have to increase maintenance to his former wife 16 years after their divorce.

The case focuses on the vital issue of whether divorce maintenance should have a time limit. Currently, in England and Wales, maintenance payments can be for life depending on the circumstances, often generating strong feelings from those bound to provide what some consider a ‘meal ticket for life’ to their ex.

Press stories about divorce, particularly where celebrities are involved, tend to focus on generous payouts to the financially weaker party, arousing heated debate about entitlement.

But what about the other side of the story and the often ignored financially stronger partner who may feel resentful that they’re not getting a fair deal? What can they do to ease the pain and make a divorce as quick and fair as possible?

Family lawyer Jeetesh Patel from London solicitors firm Hodge Jones & Allen says his focus is always to help couples avoid having to go to court as a last resort, which racks up the cost and stress of divorce and drags out the process.

“Earlier this year the Court of Appeal, in the case of Kim Waggot, reduced her generous maintenance award when she demanded an increase. English courts are now increasingly placing time limits on maintenance awards taking the view that the financially weaker party should be independent within the time limit set. This suggests the courts may now be moving away from the ‘meal ticket for life’ divorce settlement,” Jeetesh says.

“But, generally, if the courts do get involved, they will focus on the person with the greater need – in terms of housing and maintenance, particularly when children are involved. So, when I’m trying to help people reach agreement, that’s also my starting point.

“I begin by helping people establish the right mindset which is, first and foremost, to accept that their ex has a greater financial need than them and that any agreement will depend on full and frank financial disclosure to prevent a lengthy and potentially acrimonious court case.”

Jeetesh’s advice in these circumstances is to be transparent from the start because if you do attempt to hide assets or money, it will come out.

Until someone can accept that, Jeetesh says, it’s a real stumbling block. “The wealthier partner’s first response to the idea of financial transparency is often: ‘Why, why, why?’, and the weaker party often comes with an air of suspicion that the other side is hiding something, and that’s something I have to work on.

Most people understand the importance of protecting their children but when it comes to the ex, Jeetesh finds, some find it difficult to accept that a judge will usually uphold the right of the financially more vulnerable to have their lifestyle protected, particularly when the marriage is considered to be a long marriage – meaning entitlement to the same level of income as when they were married.

“Certainly, in the case of Mrs Waggot, the judge agreed with her husband that too big a settlement would discourage her from looking for a job, so change might be coming. Currently, though, if someone has never worked, few judges will expect them to go and get a job to become independent.

“If they originally worked but gave up to run the home and bring up children, it may be reasonable to ask them to requalify and go back to work.” Jeetesh says.

“However unfair the financially better-off partner thinks it is, it’s very unlikely where there is disparity in income the split will be 50/50. So, my advice is to accept that and to then work with me on limiting the damage maintenance payments will cause them.”

Do:

1. Be transparent: You have a duty to disclose all your assets and details of your income when asked to do so. If you’re tempted to hide money in a bank account, say, or to sign over assets to a relative, it will be discovered.
2. Be prepared to negotiate from the minute you agree financial disclosure. Most negotiations come with an air of suspicion that you’re hiding things, it’s human nature. The other party might begin by saying they want 100 per cent of a house or asset – it’s reasonable to suggest that rather than needing a £600,000 house near the children’s school, they find a £400,000 one.
3. Keep an eye on monthly expenditure: Someone may have quite happily lived off £1,000 a month when you were married but now claim they need £5,000 a month to survive. It’s acceptable to ask to look at bank statements to calculate actual expenditure.
4. Discuss responsibility: If someone has worked in the past, it’s fair to ask them to consider how they can get back to work.
5. Consider setting up a trust for the children: in conjunction with the other party.

Don’t:

1. Ask your lawyer how you can hide assets or tell them you’ve already done so. If you ask them not to disclose it, they can’t represent you.
2. Transfer property into someone else’s name, for example a relative, or transfer money from your bank account. You will be asked to disclose 12 months’ worth of bank statements and anything suspicious will simply prolong the process and rack up costs.
3. Forget your children come first: despite personal feelings about your ex, remember it’s about protecting them. The courts will always put their best interests first. You will always have a financial responsibility towards the children.
4. Cancel out the good things: At one point, you were happy. Try to keep that in mind during negotiations, particularly if you both agreed, for example, that one partner should give up work to run the home. Try not to resent that decision once you’re split.