The McCartney divorce
Introduction
Monday's decision cost Sir Paul McCartney a lump sum payment of £16.5m. That is 4% of his £400m wealth as estimated by the judge. 2% if you take Heather Mill's view that his wealth was over £800m.
But it also seemed to cost them so much in terms of self respect let alone sheer stress.
Two questions suggest themselves. Whatever happened to equality? And would a pre-nup have spared them all of this?
The answer to the first question – whatever happened to equality – is quite simple. Courts do not aspire to equality and never have done. They aspire to fairness. Sometimes, quite often, this can and should be achieved by equality in the settlement. But not always. Often there is a factor that demands an adjustment to achieve fairness. The need to provide a home for the children for example; or disparate earning capacity or prior wealth.
Would anyone have thought it fair for Lady Heather to have had 50% of Sir Paul's assets? £200m? Probably not. There are several factors which lay person and judge alike would have thought relevant. Firstly, the length of the marriage; they began living together when they married in 2002. Secondly, Heather has no real capital needs of her own; she herself already had assets worth £7m plus. Thirdly, most if not all Sir Paul's wealth was acquired before they were married. The Beatles broke up in 1970. Band on the Run did quite well but even that was released in 1976.
So what about a pre nup? Would that have made a difference? Are they even legal in this country?
Yes they are legal in that they are neither illegal contrary to public policy. And they can make a difference. And what a difference such an agreement might have made in this case. Or any other case for that matter.
In fact, the same principle – fairness - is the key here too. It is right that a court should take account of a fair agreement reached before the parties were married. A fair agreement would involve:
- Absence of pressure or coercion
- Full disclosure of resources
- A full understanding of the implications of what had been agreed. In this independent legal advice may make a difference
- And the further ahead the agreement looks the longer it stands a chance of being upheld.
I fear many of us have had a rather ghoulish interest in the performance of these two in public. Heather's early morning rant on breakfast TV was one of those 'I was there' moments. They like many others may have thought of a pre nup but decided it was not at all romantic. They may see it differently now.
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