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What’s mine is yours

Updated Thursday, 26th October 2006

When marriages end in England, the law offers little guidance as to how assets might be split. Could the French system offer a better way to make unhappy endings less unhappy?

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The Money Programme investigation 'The Real Cost Of Divorce' highlights one of the key characteristics of the divorce process in England – the fact that couples divorcing have no real idea up front who is going to get what when it comes to sharing out the assets. Recently, a number of judgments have favoured the divorcing wives of rich men, fuelling a new industry in wealth management for divorcées! Splitting money Copyrighted  image Icon Copyright: Ginasanders | Dreamstime.com

The reason for this uncertainty is that divorce settlements are decided on a case by case basis. The principle is now a 50:50 split between husband and wife, but 50:50 of what? Are we talking past earnings before the marriage took place, earnings during the marriage, future earnings, pension or even offshore assets hidden in a Swiss bank account? And pets can’t be split in half. This gives judges a lot of discretion.

The first act relating to divorce in England was in 1857 – before that, divorce required a private Act of Parliament, available only to the very few. The Divorce and Matrimonial Causes Act of 1857 gave men the right to divorce their wives on the grounds of adultery – but not vice versa. Women not only had to prove adultery, but also bigamy, cruelty, incest or desertion!

Without divorce, women weren’t free to leave their husbands. If they did, the husband could make them return to the marital home.

In Anthony Trollope’s novel, Phineas Finn, written 12 years after the Matrimonial Causes Act, Lady Laura Standish foolishly married an MP, Kennedy, who made her life a misery

When she tried to leave him, Kennedy went straight to his lawyer and ‘desired that steps might be taken for the restitution to him of his conjugal rights’. Poor Laura was forced into exile in Dresden, to stop Kennedy making her come home ‘if there be any law in the land, she shall be made to do so’.

Nowadays, women and men have a much easier time getting divorced. That’s not the issue. What’s at stake is the division of the spoils.

The English system, reliant on precedent, isn’t the only way to go about this. I would argue that the continental system of a marriage contract – equivalent to the ‘pre-nup’ so beloved of Hollywood celebrities – is much fairer.

For richer, for poorer - The Open University course You And Your Money gets your finances under control

When you get married in France, for example, you can choose whether to have a ‘pre-nup’ or not. If you do, it’s respected, not overturned by judges. If you don’t, there is a default marriage contract.

With this, whatever you bring to the marriage is yours, whatever you inherit is yours. It’s only the money earned during your marriage that is split evenly between the two of you.

If you think this is unfair you can agree a ‘pre-nup’ before you walk down the aisle, to make it more equitable. At least, under this system, you know the score beforehand. It isn’t the Russian roulette practised by the English divorce courts!

One thing is clear from the programme. Women are wising up to how much they can take out of a marriage on divorce. Perhaps that explains why, of the people who have just signed up for the Open University’s new course, You and Your Money, women outnumber men by a factor of 3 to 1!

Further reading

  • The Real Cost Of Divorce – half of all marriages end in divorce, and companies are cashing in
  • The price of parenthood – having children brings many changes
  • Division of assets in a divorce – details on the French marriage contract system
  • Horlick Launches 'Bramdiva' – details of the launch of Bramdiva, a wealth management business aimed at wealthy divorcées, by Nicola Horlick, herself a recent divorcée
  • '"The widow, the clergyman and the reckless”: women investors in England 1830-1914' by Janette Rutterford and Josephine Maltby in Feminist Economics
  • Phineas Finn by Anthony Trollope, published by Oxford University Press
 

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