Sauce for the goose is sauce for the gander

Imagine the scene. A husband is getting divorced from his wife after a lengthy marriage. The couple cannot agree financial issues and end up in court. The husband argues to the judge that he always earned more than his wife and that he built up his huge pension without any contribution by her, and that therefore he should keep more of the assets and his pension. His wife never did anything, he claims, apart from perhaps a little light dusting.

I have seen husbands try to argue this and it never ends well. In those circumstances, it is likely that the court would take the view that the couple’s contributions during their relationship have been equal. The husband may have made a greater financial contribution, but the wife matched this contribution in a non-financial way; e.g. by being a housewife and by looking after the couple’s children while the husband was at work. It is very difficult to persuade a court in these circumstances that one party’s contributions exceed the other and that this should cause the scales to tip in one spouse’s favour.

The wife would receive more than 50% of the assets if an equal split would not meet her and the children’s needs. She would also receive a pension sharing order, giving her a share of the husband’s pension sufficient to meet her needs. This is often for whatever percentage of the fund as would provide the couple with equal incomes in retirement, which may very well require the wife to remove more of the pension fund as women tend to outlive men and need the pension to last longer. The husband may also be ordered to pay the wife spousal maintenance in addition to child maintenance to enable her to transition to financial independence, or if that would cause her undue hardship, for a lengthy period.

In such a case the husband is simply not being realistic. The court has to balance fairness against meeting the parties’ needs. If a fair split or an equal split wouldn’t leave the wife with sufficient to meet her needs, while the husband receives more than enough, she is likely to get more.

In these enlightened times, it is now quite rare to see a husband take such an unrealistic position. Most men would accept that such a Dickensian attitude towards the division of finances would not be appropriate or realistic nowadays. Having said that, I still see a depressingly large number of cases where wives have accepted far less than they should from their sometimes abusive and financially controlling husbands because they cannot face the battle necessary to get their rightful entitlement.

Nowadays it is much more common than it once was for the wife to be the financially stronger party. She may have had the better paid career and have managed to build up a great pension, whereas the husband may have a far less well-paid job or may have been a househusband and have no income or pension at all. In other words, the exact opposite of the circumstances in the first paragraph of this blog.

What I do find astonishing is how in such cases, the financially stronger wives often baulk at the prospect of their husbands receiving a  greater share of the assets and pension in order to meet their needs. They often are quite dismissive of their husband’s contributions, many of them using language about their husband that would be considered incredibly chauvinistic if it was uttered by a husband about his wife.

I have to explain to those wives that the law applies equally to wives and husbands. It cuts both ways. Sauce for the goose is sauce for the gander. If it would not be justifiable for a financially stronger husband to keep the bulk of the assets and to keep his pension intact, it would equally not be approportionate for a financially stronger wife to.

I recall one client exploding at this advice, telling me that the law was biased in favour of men. But in fact, it is not. In this respect, the law applies equally.

The law does differ in some respects in relation to how it works as regards men and women. The reality is that periodical payments orders for spousal maintenance to be paid by a wife to a husband are very rare. I can only remember seeing one since I began practising family law in 1996. Men rarely seek them, even when they earn a lot less. They also often don’t seek child maintenance from a wife where the children live with the father. I blogged here in 2015 about how the law is usually fair to both men and women, but that there were some areas where it was tipped in favour of women over men. I don’t think things have changed since then. There may still be areas where family law is tipped in favour of men, but it is harder and harder to find examples of this nowadays.

In any divorce financial dispute it is important that a party, whether they are the husband or the owe, seeks legal advice at an early stage from a solicitor. If they have realistic expectations about what they are likely to get, it increases the likelihood that they can reach an agreement in negotiations, mediation or the collaborative process, rather than pursuing an unsustainable case at court and losing badly.

12 August 2023

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