The payments are being demanded by lawyers for Julia McFarlane, ex-wife of Kenneth McFarlane, a senior City accountant.
A backlog of divorce settlements has built up ahead of the verdict, with separating couples keen to see which of the McFarlanes will be favoured by the law lords before they agree their own settlements.
If the law lords decide in Julia McFarlane’s favour, this will further enhance Britain’s reputation as one of the most beneficial places for wives to settle divorce cases and one of the most worrying for husbands.
It is already established that, as a general rule, couples split capital assets 50-50 when they divorce. Julia McFarlane is also hoping to gain a share of her husband’s future earnings.
This will be argued on the grounds that his money-making potential should be treated as an income-yielding asset that Kenneth could not have built up without the contribution of Julia in building the home and looking after the children.
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Kenneth McFarlane is senior tax partner at the accountants Deloitte, earning more than £750,000 a year, and his marriage to Julia lasted more than 16 years. She gave up her career as a solicitor with a City firm to look after their children.
James Pirrie, a solicitor with Family Law in Partnership, who is acting for Julia McFarlane, said: “The fruits of the partnership should be shared equally . . . One of the things created by a marriage is an earning capacity.”
Until now the amount of a husband’s income paid to an ex-wife — and occasionally the other way round — has usually been determined by working out how much the wife needs. The current argument is about the amount of a husband’s “surplus” income above this level to which wives should be entitled.
Julia McFarlane’s payments have already been set above this in an earlier judgment. She was given half the couple’s £3m capital assets, plus £250,000 a year for five years. Her spending needs had been set at £128,000 a year. She is now appealing to the Lords for a more favourable settlement.
In 2004 the McFarlane case was heard in the appeal court alongside that of Ray Parlour, the former England footballer, and his ex-wife Karen. A judge said Karen had “scooped the pools” given the short duration of the marriage but acknowledged that she had saved her husband from a “laddish” drinking culture when he played for Arsenal in the early 1990s.
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Karen Parlour was awarded £444,000 a year, 37% of her husband’s income, to be reviewed after four years. The judges’ idea, however, was not to concede the principle that she was entitled to a share of his income in the long term.
The McFarlane case is being heard alongside an appeal by Alan Miller, a fund manager with New Star, against an order to hand over £5m to his ex-wife Melissa after a marriage of less than three years. This will help establish how much money wives are handed after “short-marriage big-money” divorces.
Miller has an income regularly in excess of £1m and a fortune estimated at £17.5m. This is in addition to as much as £18m in New Star shares.
At the appeal court last year, Lewis Marks, Alan Miller’s QC, claimed: “If my client had knocked her down with his car and she had suffered severe injuries — brain damage and losing the ability to have children — at most the damages would be £2m.”
Some legal experts are concerned the original verdict shows Alan Miller was being “punished” by the courts for the fact he had been unfaithful.
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Sandra Davis, head of the family law department at the firm Mishcon de Reya said: “It would be a retrograde step if we were once again to forensically examine what happened in someone’s marriage.
“It’s almost unheard of in this country to go back to a Victorian state of mind, which was to punish someone for a matrimonial misconduct.”