Press reports trumpeted last week that the Court of Appeal had brought an end to the era of the area of equal shares in divorces. As if so often the case, the headlines are misleading.
In the case of Sharp v Sharp, the husband and the wife had a short marriage lasting about 4 years. The marriage produced no children. Both parties were well paid, but Mrs Sharp significantly more so. Their assets grew considerably during the marriage, largely due to wealth created by Mrs Sharp so that by the time they divorced, their combined wealth was over £5 million. When they divorced, the trial judge, Sir Peter Singer divided their assets between them equally. Mrs Sharp appealed to the Court of Appeal, who overturned the decision, giving Mrs Sharp £750,000 more than Mr Sharp.
This is not, by any stretch of the imagination, a significant change in the law. For years, the court has started by dividing assets equally, but then going on to consider if in the circumstances of the case it should divert away from equality to achieve fairness and to meet the parties’ needs.
It was very notable that the press reports focused on the husband’s infidelity. “Cheating husband… has his divorce payout slashed by £725,000 after he admits affair” was one headline. During the original trial, Mrs Sharp’s barrister had a Perry Mason moment when the husband admitted during cross-examination that he had been unfaithful. The wife had suspected this for a long time, but had never been able to prove it.
While this might have been an emotionally satisfying (or distressing) moment for Mrs Sharp, it was probably legally irrelevant. It had no effect on the decision of the trial judge or the Court of Appeal. It’s just a little bit a salacious colour to spice up the news story.
I often find that some clients expect to be told that if they (or their spouse) has committed adultery, the court will punish the unfaithful party by giving more of other assets to the faithful spouse. This is not what happens.
Conduct (or perhaps I should say “misconduct”) rarely makes any difference at all. When it is relevant, it is usually things like financial misconduct or violence towards one party that has left the other party unable to work. The fact that one party has had an affair is neither here nor there. To quote Lord Justice McFarlane in the Sharp case “it is right to record that the simple fact that one party of the marriage has committed adultery, even if, as here, that is relied upon as the factual basis for seeking a divorce, has long been held to fall short of the type of ‘conduct’ required to trigger its inclusion as a relevant factor”. The media has chosen to ignore this.
There are good reasons for this. The court does not want to become bogged down in disputes about whose fault it all is. In my experience, very few marriages fail because of the behaviour of one spouse. There is usually some fault on both sides, albeit perhaps not equal. Much as it takes two people to make a marriage succeed, it will usually take people to make one fail. For example, adultery or behaviour that cause the marriage to break down might just be the symptom of the breakdown of the marriage. It might be the result of previous actions by the other side; for example, a callous and uncaring wife who drives her husband into the arms of another woman.
How is the court supposed to be decide which party is ultimately responsible and what percentage of the assets they should recover as a result? Just because the divorce petition may allege adultery doesn’t provide evidence; the adultery might not have started until the marriage had already broken down irretrievably. Similarly, a behaviour divorce does not help either; most behaviour divorces are not defended, but usually involve a denial of the allegations by the Respondent. Is the court really expected to figure out who is more to blame and whose fault it all is. In any event, the fact cited in the divorce petition may not be what caused the marriage to fail; it is just what enables the parties to divorce.
Furthermore, punishing one spouse by giving them less of the assets might leave that party in a position where they not only struggle to meet their needs, but they will struggle to meet the needs of their children. For example, if the children’s main home is with the wife after the divorce, but the court gives her less of the assets to punish her for an affair, that also punishes the children. The outcome would be grotesquely wrong.
Some husbands might argue that the answer to this conundrum is to send the children to live with the husband. But, what if the children are old enough for their wishes and feelings on the subject to carry considerable weight? If they want to live with mum, why should they be forced to live with Dad just so that the wife can be punished for having had an affair?
Delving into whose fault it all is an exercise that will be fraught with problems and the potential for injustice. The court will therefore focus on achieving an outcome that is more forward looking and dwells less on mistakes in the past. As one judge said to me in court a few years ago “The court will not rummage through the jumble of the marriage in the attic.”
21 June 2017