Not Just Footballers’ Wives

The recent decisions in the high profile cases of Parlour and MacFarlane have reignited the debate on prenuptial agreements and called into question the whole point of marriage, an institution it is claimed is undermined by such decisions. A closer inspection of the Court of Appeal’s decision reveals a rather different story. The reality is that in neither case can the wife be labelled the victor and talk of floodgates opening is exaggerated. Neither wife achieved their aim to receive a set proportion of their spouse’s future income on an open ended basis.

The effect of the decision is more simple. The aim in all divorces is a clean break. This is only possible in a few cases. Neither the Parlours nor the MacFarlanes could afford a clean break, although both husbands were very high earners, which meant there was surplus income after both parties’ spending needs had been generously met. Each wife had been awarded high ongoing maintenance. Their appeals sought increased maintenance as a right so that any surplus would be shared. The Appeal Court gave them additional maintenance, but as a mechanism to achieve an eventual clean break rather than as of right. One wife was expected to save a significant amount from her surplus maintenance, as the husband’s future earnings were predicted to fall dramatically. She would save for the impending rainy day, rather than trusting the husband to do so. The court allowed her maintenance only for a further four years (with the onus on her to justify any later extension). The other wife was likewise expected to save her surplus maintenance and the maintenance term was five years. In that case it was, however, anticipated that the husband’s high earnings would continue and he would at that date be able to afford to make a further capital payment. Likewise, it was anticipated that by then the wife, who had previously had a high flying, successful career, would be in a position to return to work.

In the meantime ‘prenups’ are anticipated to become flavour of the month. Parlour and Macfarlane may well provide the impetus for new prenup legislation.

For further information contact:

Nicola Fletcher
Tel +44 (0)20 7440 7140
nicola.fletcher@mishcon.com