Divorcing couples who cannot reach agreement when they separate are being advised to shop around England and Wales to find courts most likely to award them a favourable settlement, The Times has learnt.
The divorce courts “lottery” means that when couples split there can be starkly differing outcomes depending upon which part of the country their case is heard in.
Family lawyers say that the district judges, who rule on 90 per cent of divorces, vary widely on how they split assets and how they order maintenance from one spouse to another, most often from husband to wife.
Some courts favour clean breaks, dividing a couple’s assets and with limited or no regular maintenance payments, while others prefer lengthy maintenance awards.
Courts in the South, South East and London are seen as “very pro-wife”, while husbands fare better in the North. One family barrister working in London said that if he wanted to divorce, he would do it in Newcastle upon Tyne because he would stand a better chance of getting a good deal.
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The research comes as family lawyers prepare for the post-summer-holiday rise in divorce inquiries.
The Manchester-based firm Pannone, which carried out the research, said that there was in effect a “divorce map” applied by lawyers. It trawled 1,500 cases handled by its own lawyers since 2007 and also drew on findings from divorce lawyers at 20 roadshows in England and Wales.
Its findings are also confirmed by Resolution, the association of 4,000 family lawyers in England and Wales, which says that it is an open secret that lawyers shop around for the right court and judge.
Andrew Newbury, matrimonial partner at Pannone, said: “We’ve all heard of forum shopping, with foreign couples choosing the best jurisdiction to divorce between one country and another and often coming to London with its reputation as the ‘divorce capital of the world’. Now it seems they are forum shopping within England and Wales as well.”
The reason, he added, was not that judges were making wrong rulings but because they had a wide discretion to apply the law.
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He said that he had tested out a hypothetical divorce at the roadshows, which were attended by district judges and family lawyers. “There was a very clear difference. Generally in the North judges tended to favour a clean break or limited maintenance, taking the view that the wife could stand on her own two feet.”
Nigel Shepherd, of Resolution and a partner with the solicitors Mills & Reeve, agreed that a divorce ruling could be a lottery. He said: “The upside of our discretionary system is that it is designed to be flexible so judges can tailor the outcome to the needs of the parties. The downside of that is the lack of consistency or certainty as to outcome. It varies tremendously.”
However, District Judge Stephen Gold, from the Association of District Judges, said that judges could spot attempts to shop around, adding that outcomes would be different because “no two matrimonial property and maintenance cases are ever identical”. He said: “Even two cases — let alone a dozen or 1,500 — with much in common will have nuances which distinguish them and make it notoriously difficult to compare or detect a trend.”
Sir Mark Potter, the President of the Family Division, has called for the Law Commission to review section 25 of the Matrimonial Causes Act, which is the yardstick used by judges when deciding on the division of assets.
A series of “big-money” divorce cases seems to appear to confirm the perception that wives do well in London or the South East:
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John Charman, an insurance magnate, lost his appeal against being ordered to pay his former wife, Beverley, £48 million after a marriage of almost 27 years. He said afterwards: “Until the 1973 law is reformed to bring it into line with the many changes to modern marriage and business life, London will remain the divorce capital of choice for the spouses of all very successful people”
A woman from Gloucestershire was awarded a maintenance package of £80,000 a year, including £50,000 for the the upkeep of her horses, as part of a divorce ruling last year approved last year by District Judge Michael Segal in a West Country court and confirmed by the Court of Appeal
The House of Lords ordered Kenneth McFarlane, a Deloitte Touche Tohmatsu partner, to give his ex-wife £250,000 maintenance a year after a 16-year marriage, as well as their £1.5 million family London home in London
The House of Lords also ordered Alan Miller to pay £5 million to his ex-wife, Melissa, after a childless marriage of less than three years. They lived in Chelsea, West London