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Nothing short and sweet about divorce; Kevin Harris-James, one of the country's leading divorce lawyers, explains why yesterday's Lords decision will be anything but music to the ears of a former Beatle.

Byline: Kevin Harris-James

Paul McCartney probably slept uneasily in his bed last night. And this morning's papers are unlikely to lift his mood.

Because whichever way you look at it, yesterday's ruling by the House of Lords's is set to have a huge impact on his impending multi-million pound divorce.

The Law Lords ruled that Melissa Miller is entitled to keep the pounds 5 million award, an estimated sixth of her husband's wealth, after her three-year marriage to her multi-millionaire fund manager collapsed following his affair.

The decision by the House of Lords firmly slams the lid on Pandora's box on the notion of examining who is to blame for the breakdown of a marriage in all but the most exceptional of circumstances, meaning that an affair within the marriage will not entitle the injured party to a higher award.

Furthermore the quality of the marital relationship is no less in a short marriage then in a longer one. Marriage is a legal partnership regardless of length, and where a husband provides a wife with a legitimate expectation that she would on a long-term basis be living on a higher economic plane, that must be factored into any award.

The House of Lords took note of the amount of wealth accumulated during the Miller marriage and to the standard of living enjoyed during the marriage in determining a fair amount for her to receive in her settlement.

The Miller decision will have a big impact in that it determines that spouses on short marriages no longer effectively get enough to stand them back on their own feet and little more, this is definitely no longer the case.

Miller is useful in that it dispels the temptation to get into xpensive and distracting legal arguments about who is to blame for the marriage breakdown and seeking to penalise a party for misconduct, such as an affair.

Marriages fail for many reasons and it is an unhelpful exercise to try and apportion blame to one party to gain an advantage on financial settlement.

However it is likely to significantly increase the cost of divorce settlements off the back of short marriages when it comes to arguing over the numbers. As Paul McCartney is rumoured to be worth in excess of pounds 800 million, and earning up to pounds 650,000 a day, he may no doubt feel the impact of the Miller decision in the sum sought by Heather Mills, after their four-year marriage.

A short marriage does not mean that a wealthy husband will get off lightly. Miller, in my view, is a decision that really underlines the need for a pre-nuptial agreement where wealth is one sided at the outset of a marriage. Had there been a pre-nup I believe that Mrs Miller would not have received such a generous award, assuming that the pre-nup had been properly drawn and the parties received independent counsel.

In the case of Mrs McFarlane, the House of Lords ruled in the landmark case that she should be awarded pounds 250,000 a year to continue until the first of them dies, she remarries or the court orders otherwise. This is instead of the term which the Court of Appeal had given her: a period of five years at that level.

Mrs McFarlane argued that she had given up her successful legal career on what was an agreed division of roles, and to support her family, believing that her marriage would last for life.

For the first time the courts considered compensating a wife who sacrificed her career and stayed at home to look after the family, thereby enabling the husband to pursue a successful career, allowing her to share generously in future income. The decision will directly affect wives and mothers in similar circumstances, as future income awards will reflect properly the contributions made on any division of roles.

This has to be the right decision if discrimination between spouses is to be avoided. A wife in a long marriage who has made sacrifice, such as Mrs MacFarlane, should benefit in future income where a husband has climbed the career ladder with her support and achieved financial reward. Until now, a wife in such circumstances would find her maintenance claim limited to her reasonable requirements, which may represent a fraction of her husband's wealth.

In Mrs MacFarlane's case, she required pounds 128,000 per annum on a requirement basis despite her husband earning pounds 750,000 per annum. Mrs MacFarlane successfully argued it was grossly unfair that she should be limited to her reasonable requirements whereas her husband should receive the surplus income after his reasonable requirements were met. She thus was awarded about one third of her husband's income. Furthermore she succeeded in removing the bar to her award which had been originally set at five years, achieving maintenance for the remainder of her life.

The House of Lords felt it was wrong to limit Mrs MacFarlane's maintenance to five years thereby effectively hanging the proverbial sword of Damocles over her, because her husband's earnings would continue far beyond the period.

The burden of thus trying to achieve a clean break at a future date was passed to Mr Macfarlane as he would have to reapply to the court at a time when his circumstances may have significantly changed, whenever that may be - as opposed to crystal ball gazing into the wife's future and trying to guess when she would be in a position to achieve financial independence (if ever) of her husband.

Both judgements are likely to create a number of areas where future litigation will be inevitable - amongst them, the notions of sharing wealth appreciation, and the now formally recognised notion of 'compensation', and how these might be assessed or calculated.

I would say that for everyone, from the fabulously wealthy to the average person in the street, the points we should take from the judgements are that pre-nups are worth drawing up and that we should not panic in terms of 'fault' as conduct would only apply if for example one partner spent hundreds of thousands of pounds on the affair. These come from Miller so looking at McFarlane's impact a spouse's claim is not simply limited to a fair share of the capital but also a generous share of future income given a long relationship with children.

Kevin Harris-James is a partner at Irwin Mitchell in Birmingham


Kenneth and Julia McFarlane: The House of Lords ruled in the landmark case that she should be awarded pounds 250,000 a year to continue until the first of them dies, she remarries or the court orders otherwise' Sir Paul and Lady Heather Mills McCartney. A short marriage does not mean that a husband will get off lightly
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Publication:The Birmingham Post (England)
Date:May 25, 2006
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