Research suggests that many wives are losing out financially due to law being applied incorrectly

It is obviously not uncommon within marriage for one spouse, invariably the wife, to forego a career in order to look after children. This of course means that the husband is free to pursue his career, leaving the wife disadvantaged when the marriage breaks down.

In short, the breakdown of the marriage can mean that the wife suffers a double disadvantage: she can no longer rely upon the financial support of the husband, and her earning capacity is far less than it would have been if she had carried on with her pre-marriage career.

In such circumstances the wife can seek to be compensated by the court when it considers a financial remedies claim on divorce.

This idea of compensation was not established by parliament – it does not appear in the statute that sets out how the courts should deal with financial remedies claims. Instead, it was established by the courts.

In particular, in 2006 the House of Lords (now the Supreme Court) stated that compensation:

“…is aimed at redressing any significant prospective economic disparity between the parties arising from the way they conducted their marriage. For instance, the parties may have arranged their affairs in a way which has greatly advantaged the husband in terms of his earning capacity but left the wife severely handicapped so far as her own earning capacity is concerned.”

But new research by the University of Exeter suggests that the courts are failing to apply the law, with the result that many wives are losing out financially on divorce.

The research speculates that this is due to a misconception by the courts that compensation only applies to “high-flying women who had sacrificed glittering careers”.

It is true that in a 2014 case Mr Justice Mostyn suggested that compensation cases would be “very rare”, where the court could say “with almost near certainty” that the wife’s very high earning career would have led to earnings at least as high as the husband’s.

But this approach was subsequently disapproved by the Court of Appeal, suggesting that compensation was intended to be applicable in a large number of cases.

However, the research claims that it is not happening, and that this is resulting in wives having worse post-divorce outcomes compared to husbands. The research also expresses concerns that compensation may not be included as a principle for the courts to follow in any reform of financial remedies law.

Other research has certainly established that, on average, wives are less well-off post-divorce than husbands. And the failure of the courts to apply the compensation principle may be one of the reasons for this. It should, however, be pointed out that most cases involve couples of low or modest means, where there are simply not enough assets available to provide the wife with adequate compensation.

You can read the University of Exeter research, here.

*          *          *

Family Law Cafe gives you the best strategy to achieve the right outcome for you and your family and keeps them informed and in control 24/7 through a unique and secure online portal. Family Law Cafe is your start-point for getting matters sorted with strategy, support and security.Image: shisu_ka / Shutterstock.com