Legal Village

Heather needed guidance - and so do the judges

Posted 18/03/2008 by Joanne Edwards

After weeks of frenzied speculation, Mr Justice Bennett handed down judgment in the McCartney-Mills divorce case on Monday. At issue was what financial provision should be made for Heather Mills out of Sir Paul’s wealth, the majority of which was acknowledged to have been amassed prior to a marriage the Judge found to have lasted only 3 years and 10 months.

Despite reports that put Sir Paul’s worth at up to £840m, the judge found that the total value of his assets was about £400m. He was not persuaded that the well-publicised allegations of conduct should have any impact on the size of the award and decided, in looking at the checklist provided by Section 25 of the Matrimonial Causes Act 1973, that Heather’s needs were a factor of “magnetic importance”.

In those circumstances, the judge decided that Sir Paul should pay Heather a lump sum of £16.5m, which together with her assets of £7.8m means that she leaves the marriage with £24.3m. This sum included a fund of £14m representing the capitalised figure for her income needs, assessed at £600,000 per annum, and £2.5m for a property in London. Separately, the judge awarded maintenance for Beatrice of £35,000 per annum, Sir Paul having agreed to pay for her nanny and her school fees separately.

Although Heather, on the steps of the court, declared herself “very, very happy” with the outcome, it was revealed that she had in fact sought a sum of £125m, versus the £15.8 million offered by Sir Paul. Indeed, some observers have expressed surprise at the relatively low level of the award, which had been expected to fall somewhere between £30m and £50m.

Undoubtedly a factor in the outcome was Heather’s decision to act as a litigant in person. Although she extolled “the power of one”, it was undoubtedly a risky strategy that most would agree backfired. It is understood that much of the legal argument centred upon the size of Sir Paul’s wealth, which the judge ultimately ruled to be £400m. If Heather had retained her legal team, it is likely the judge would have settled upon a figure somewhere between this and the £800m-plus for which she contended.

What is more, it seems as though that the judge was persuaded that Heather’s award should be squarely determined by her needs. With a specialist legal team by her side, it may have been possible to persuade the judge that other factors in the Section 25 checklist - such as contributions and standard of living - should have been afforded more weight, leading to a higher award.

Whist it may sound like a self-serving edict from a family lawyer, clients are well-advised - particularly where the level of assets is of this magnitude - to take specialist legal advice.

Two other strands come out of the whole saga. First, it will be noted that there was acknowledged by family lawyers to be a wide range of possible outcomes. This emphasises the difficulty experienced in advising clients in this field. The Matrimonial Causes Act 1973 has spanned three decades. In that time, social attitudes have undoubtedly moved on. Nonetheless, the same statute governed Ringo Starr’s divorce in 1975 as did Sir Paul’s 33 years later. Guidance is derived from reported judgments on a case-by-case basis, but as every divorce case has its own individual facts this is far from satisfactory. Arguably the time has come for the Government to revisit the Matrimonial Causes Act 1973 and perhaps issue guidance for judges about how the factors to be taken into account under Section 25 should be weighed up.

Second, much has been written about Heather’s opposition to the judgment being publicised in full. At time of writing, this issue has not been determined. In July 2006, Harriet Harman said that she wanted greater openness in the family courts to promote understanding of its work. The two proposals that were being debated were to open family court hearings to the press; or to the press and public.

Although many jurisdictions have adopted the principle of opening family court hearings to the press, after a period of consultation the idea was shelved in England. Instead, it was agreed that judges would continue to hand down judgments, duly anonymised and redacted, in appropriate cases.

Family lawyers would be delighted to see the judgment in the McCartney-Mills divorce reported - not to glean the details of their married life for which so many are clamouring, but rather to see whether there are any interesting legal points in the judgment that could have a bearing on other divorce cases. In the longer term, many would also welcome the question of greater transparency in the family courts being revisited. 

For now, the debate about who were the true winners and losers in this case will rumble on.

The full text of the Mills v McCartney judgment, which was released on 18 March.