“Discriminatory” divorce settlement overturned in watershed judgment

Divorce proceedings between an unnamed couple have caused a seismic change in how marital assets are divided. The case has been seen as a major step forward for gender equality and for recognising the role of women in the household.

The case involved a wealthy businessman and stay-at-home mother who was largely responsible for raising the pair’s severely disabled child.

An original judgement gave the wife only 29% of the joint assets. This was because the judge stated the husband made a “special contribution” to the marriage, because of his vast wealth.

The case went to the Court of Appeal in XW v XH and Lord Justice Moylan overturned the December 2017 judgment. He said:

“In this case, the wife’s enormous contribution to the welfare and happiness of the family, as the homemaker and principal carer of [the child], both during and after the marriage, has been and will be incalculable.

She has devoted herself to the day-to-day care of a child with special needs and by doing so has freed the husband to a very considerable extent to enable him to pursue the business activities which have generated the enormous wealth now available.”

Debbie Chism, the lawyer for the wife, told the Independent:

“I am absolutely delighted we have reset the law around this. If it had been allowed to stand, it would have set a dangerous precedent.

The judgment has ensured that financial contributions – earning the income – are not prioritised over domestic contributions – taking care of children and looking after family members.

Given we are in a society where men are more likely to be in bread-winning roles, women would have missed out in cases where capital is generated by a man’s efforts.

It is a highly flammable legal construct that can be deployed in cases where there are high levels of family wealth, and can potentially be very discriminatory – primarily towards women.”

The judgment has been merited as a huge step forward for gender equality in divorces as many women are still more likely to be stay at home mothers whilst husbands earn most of the household income. This case ensures women’s contributions in a marriage are recognised and rewarded.

Kaleel Anwar, a senior family law solicitor who specialises in divorce, said of the judgment:

“It is about recognising the importance of the contribution that homemakers make to allow the breadwinner to succeed.

The woman can be managing so many different things. Making sure food is on the table, looking after four children, making sure she is around to pick the kids up and drop them off to the extra-curricular stuff is a full day’s work.

And all the work the husband doesn’t have time to do because he is in business meetings: if the husband has a property portfolio, the wife might have to manage 15 cleaners in properties around London – making sure they have left and they are paid.”