The press has been full with news stories about the case of Mr and Mrs Mills, and although no judgment has yet been published, further details have emerged as the week has worn on. And there is plenty of opinion out there too as to what this case means for, or demonstrates about, the state of the law in respect to divorcing husbands and wives – and in particular the question of ongoing maintenance.
What’s the case about?
The Court of Appeal were asked to rule on whether a decision about a wife’s ongoing maintenance from her husband some 15 years after their divorce should be upheld. The wife successfully argued that the decision was wrong and that her maintenance should continue at a higher rate than before, notwithstanding her loss of the capital sum she was awarded at the time of the divorce through apparently poor investment decisions.
What is this blog post about?
We will comment more fully about the case and the rationale behind the decision when the judgment is out, but in view of the volume of material published so far it seems sensible to say something now. This post assumes that the information in the public domain at present (which all appears to come from Mr and Mrs Mills through their lawyers or through press interviews) is broadly accurate. It is not the role of The Transparency Project or the aim of this post to comment on the law, more to explain it and to contextualise the news reports.
The focus of this post is on the way in which this matter has been covered by the press, and on how that may have impacted upon the public’s ability to reach an informed view about the rights and wrongs of the case, and about the state of the law on divorce, which had been the subject of strident criticism this week, using this case as a springboard.
Not that Mrs Mills…(this is the fictional Judge John Deed and Mrs Mills)
We’ll approach this by way of a chronological trawl through the articles we’ve noted on this so you can see the way the impression has perhaps shifted as more information has emerged.
Mon 6 February : The Daily Telegraph headline runs : Court orders man to increase payments to wife who lost bulk of divorce settlement with poor financial decisions
The article includes a number of quotes in “quotation marks”, indicating that the press were present in court during the hearing or when the judgment was delivered (or both). Until we see the judgment it is difficult to say how balanced the selection of quotes is, but in broad terms the article seems to broadly adopt the husband’s position, quoting remarks that are positive about him and those which are negative about the wife. Somewhat unusually, the arguments made by both counsel for the appellant and the respondent are set out, The facts that emerge from the article are :
- the original order was made in 2002 and was agreed by both parties and approved by the court
- the wife had received a substantial capital sum which has since been dissipated through poor financial management / decisions
- the husband kept his businesses which had supported drawings of some £200,000 p.a.
- the wife at the time of the agreed order had a child and health problems
- the wife is now unable to meet her basic needs from the current £1100 maintenance, whilst the husband has remarried and has a new family.
- the article tells us that he wife was asking for more maintenance at court last year
- The husband is able to pay the additional amount sought.
- the Court of Appeal agreed she should be awarded the amount the trial judge had decided she needed to meet her basic needs, and therefore her maintenance should increase to £1,400 odd per month
- counsel for Mr Mills is said to have “called for changes to the law to limit spouses to “five years’ maximum maintenance,” telling the court: “There is a social change going on.””. It’s unclear to us quite how this was put, as the Court of Appeal have no power to change the law in the way suggested. We suspect that the argument made to the Court of Appeal has been somewhat condensed for reporting purposes here and may not fully represent the arguments made, which would have had to have been based on the actual law and the facts of this case, albeit with some recognition of today’s social context.
The crux of the decision seems to be this :
Judge Everall [the original judge in the hearing last year] had calculated the wife’s “needs” at £1,441 a month, but had gone on to order that her monthly maintenance should not be increased from £1,100. But Sir Ernest [one of the Court of Appeal judges] said that “shortfall” was unexplained.
“The judge made an error of principle. The order should have been that the husband pay maintenance in the sum of £1,441 a month until further order of the court,” he said. “The husband has and had the ability to make the maintenance payments asked for.”
Tues 7 February : The Times with More cash for ex-wife who spent £230K
This opens with :
A divorced wife who secured almost all of the ready cash when her marriage broke up 15 years ago has won an order that her former husband must support her for life because she has spent the money….
Senior judges at the Court of Appeal in London have now ordered that Mrs Mills’s monthly payouts be increased to £1,441 and told her ex-husband that he must support her for life as she is unable to meet her basic needs.
The impression here is that the wife has already had a good deal and is back for more and for longer. As with the previous coverage mention is made of the fact that Mr Mills has been said to be “reliable and truthful”. Again Mr Mills’ (unsuccessful) pleas to the Court of Appeal that he should not have to insure his wife for life against her bad investment decisions are set out.
The impression that the wife’s maintenance has been extended by the court is compounded by this passage :
Philip Cayford, QC, Mr Mills’s barrister, called for changes in the law to limit maintenance and encourage independence after divorce. “This is a paradigm case for reform of the law,” he said. “How can a woman in this situation after 15 years expect now to be maintained for the next 50?”
The ruling flew in the face of recent judgments in which courts had been moving towards ending lifetime maintenance, he added.
There is some comment from an unconnected solicitor, advising husbands to terminate spousal maintenance so that it does not give a wife a chance to come back when hard times hit and ask for more.
Additional facts we can glean from this article are :
- the parties’ son is now an adult
- As well as Mrs Mills asking for more money Mr Mills was asking for a “clean break” i.e. an end to his ongoing obligations to pay maintenance.
Weds 8 February : The Evening Standard runs an exclusive interview with Mr Mills : Business mans fury as judge orders him to support his ex-wife for life after she blew £230k payout on homes
Mr Mills is reported to say :
I don’t think it’s a good message to send to men or women. I don’t think it’s right that after divorce you should be tied together for ever. I don’t think you can move on mentally or physically with that tie in place. The law is wrong in that regard. I feel like I am paying for her mismanagement of finances. I’m angry and frustrated the system allows this to happen. I don’t really want this to be about me and her, I think there’s a wider issue about the law. I’ve no need to put her down, I’d rather the effort was concentrated on making the law work for people.
The Standard says that Mr Mills also
called for a mandatory time bar on maintenance after divorce and said he will consider fighting this week’s ruling if his lawyers advise it is an option.
Importantly, this article discloses for the first time (as far as we can see) that :
Mr Mills applied to cut or cap his maintenance payments two years ago because their son is now 23 and more independent. He also wanted to free up money to spend on his second wife and their 10-year-old son, with whom he lives at their home in Guildford.
Until this point all press reports gave the distinct impression Mrs Mills was the one who had come back to court, to ask for more. From this it appears that a change in Mr Mill’s circumstances (and wishes) had prompted the return to court. The article tells us that Mr Mills
said he only agreed to the “open-ended” deal as he was told he “had no alternative” due to Mrs Mills being ill at the time and uncertainty on how much she could work in the future.
This is important because it confirms that Mr Mills agreed to the original 2002 order on advice, and on the basis of a known uncertainty about her earning capacity, AND that the original order was a “joint lives” order (we think this must be what “open-ended” deal means – a joint lives order is a maintenance order that continues as long as both parties are alive, unless the court agrees to stop it early because of a change in circumstances). So the impression that readers may have got in the early part of the week that Mrs Mills was asking for the term of her maintenance to be extended because of her profligate spending is not correct. It now seems that Mrs Mills was defending an application for it to be brought to a close early, because of a change in Mr Mills’ circumstances (don’t forget the court decided even though he has a new family and other commitments he is still able to pay).
Weds 8 February : The Daily Mail runs with : I’m paying for HER mistakes: Husband who was ordered to support his ex-wife for life 15 years AFTER they divorced calls for a time limit on maintenance after she blew her £230,000 payout on bad investment
You get the gist of this article from the headline – a tale of injustice to the husband. It includes pictures of a beaming Mrs Mills and a rather sick looking Mr Mills. It quotes the Evening Standard interview.
It sets out in a nutshell an important explanation of the procedural background that has been missing so far :
The [Court of Appeal] judge said the pair both went before a family judge last year, with the wife asking for more maintenance because she could not manage financially.
Her husband – who has since remarried and has another child with his new wife – went to judges in a bid to get a clean break, the court heard.
Judge Mark Everall QC – who heard the original case – threw out both their challenges, but both parties then each instructed QCs to renew their battle before the Court of Appeal.
So, we know the husband applied to stop the maintenance early, and now we know the wife asked for more each month. Both were asking for a change to the existing order.
Friday 10 February : The Times report Trolls target woman after divorce payout.
In this article Mrs Mills is said to blame media coverage of her recent Court of Appeal hearing in London for triggering hate mail, and she complains that the media reports were one-sided and the tone and content of articles had caused her considerable distress.
The article gives some insight into what must have been going on behind the scenes :
In a statement issued through her legal team, Mrs Mills claimed the media coverage of the ruling had sparked the spiteful messages.
The new factual information we can glean from this article comes from this passage :
Ms Mills stressed that she had not launched the latest round of litigation. “It should be noted that since the divorce 15 years ago, I have never returned to the court to increase my maintenance, despite my financial difficulty and bad health and low earnings,” she said.
“This was Mr Mills’s application to the court to reduce or eliminate the maintenance despite the fact our son is still in full-time education and still living with me at home.”
New facts this gives us are around the chronology of the applications back to court and the appeal, and about the current circumstances of Mrs Mills – previous reports have indicated that the son is an adult, but have not indicated that he is still semi-dependent in that he lives at home whilst in full-time education.
So, finally we seem to have a rough procedural chronology emerging (although we have no precise dates). The sequence appears to be :
- Mrs Mills falls into financial difficulty but does not apply to court
- Mr Mills decides to return to court to try and terminate (or reduce) his maintenance obligations
- Mrs Mills asks the court to consider increasing her maintenance payments
- The court decides her basic needs cannot be met from the current award (and we infer that Mr Mills could pay more if required) but declines to increase the award (presumably because broadly speaking it did not think this would be fair – but we don’t know the precise reasons)
- One or both parties appeal the order (perhaps Mr Mills appeals the fact that the maintenance continues at all, whilst Mrs Mills appeals the failure to increase her maintenance in line with her needs)
- Mrs Mills wins the appeal
The Times report goes on to discuss the ongoing debate about how much the public should be told about people involved in big-money divorce fights in the family courts and differences of opinion between leading High Court Judges.
Fri 10 February : Marilyn Stowe and Baroness Deech, cross-bench peer, discussed the the case, life long spousal maintenance agreements and the state of the law generally as to financial settlements on divorce, in Women’s Hour on Radio 4 here. Below is a reasonably full note (not quite verbatim) of some of the key points of that discussion. Baroness Deech is promoting a Bill in Parliament, which would reform the law to provide a 5 year longstop on maintenance payments.
Deech : case shows how unethical, unpopular and out of date the law is. There is more to this case than meets the eye but on surface people will say to themselves why is a man responsible for whatever needs his ex has 15 years after separation when any children must have grown up and it puts a dampener on so many women who want to be taken seriously at work and who want equal pay and ….who still think a woman once she has captured a man is always always going to be kept by him.
Marilyn Stowe : 35 years solicitor at the coalface, have come across every type of client can possibly imagine going through divorce. Courts look at need, fairness and meeting need and a need that is acquired as consequence of the marriage. The fundamental principle of financial provision is equal provision and fairness. The aim of the law is to achieve financial independence as soon as possible but in some cases that might not be possible for example think about a woman married for a long time brought up several children, never out to work and income capacity is low and there is not enough to give a clean break… it is increasingly uncommon to have lifelong maintenance…times change. in a case like this not an automatic meal ticket for life only continue maintenance provision if court satisfied there would be undue hardhsip if the maintenance ends. clearly Mrs Mills met that test.
There then followed a discussion about the bill and proposed reforms to the law, but in this post we are more interested in the current law.
This is the only source we have found which makes any attempt at all to set out the law in this area, which is really disappointing. We summarise the law here (which you can find in s25 Matrimonial Causes Act 1973 and other sections) :
- In each case when considering how to split assets and whether to award maintenance the court must look at all the circumstances including needs, resources etc of both parties – now and in the future
- It must try and achieve a “Clean Break” if it can, unless there would be “undue hardship”.
- A court can order no maintenance, substantive maintenance or nominal maintenance (usually a pound a year, which is a device to leave the door open to come back to court and raise the amount if things go wrong). It can order maintenance for a fixed term, it can fix amounts that go up or down on certain trigger events, it can say the end date can be extended on application, or it can say the end date is set in stone. It can order “joint lives” maintenance, which continues for as long as both parties are alive unless the court is asked to change the order and agrees it should do so.
- Anecdotally joint lives orders are becoming less common, but they are still ordered in some cases, and the law clearly allows for an order of this sort to be made where the facts of the case make that appropriate (for example one or a combination of disability or old age, inability to work, dependent children or some known financial uncertainty etc).
- The law is the same for men as it is for women
Sun 12 February : The Times runs an article headlined : Divorces are skewed by judges’ outdated chivalry, says female peer pushing for cap on payments.
Sun 12 February : The Times also runs an article by Martin Daubney :
Divorced men doomed to life as a cash machine – the case of a father forced to increase payments to the woman he divorced 15 years ago highlights the systematic bias of the courts, argues Martin Daubney.
We were consulted for this piece, and a brief quote from our Chair Lucy Reed appears :
There are some dissenting voices. Lucy Reed, barrister and chairwoman of the Transparency Project — a charity working to make family law clearer — says it appears that Mills was held to account by an “open-ended” maintenance obligation that he had agreed to, yet later wanted to change. “His case is not typical,” she tells me.
“The decision does not necessarily mean that all wives would be entitled to substantial maintenance many years after their divorce. One can understand his frustration, but the law applies to spouses of either gender in exactly the same way.”
We provided the journalist with a summary of the law in this area, and an explanation of how it appeared (as best we could tell without the benefit of the judgment) the law had been applied. Understandably perhaps, that explanation did not make it into the article. We think it is unlikely that the judgment will demonstrate systematic bias of the law, but that it will demonstrate that the court decided that the needs of Mrs Mills outweighed other factors, including Mr Mill’s understandable desire to be free of the burden of maintaining her. It is clear that people hold strong and widely divergent views about whether decisions of this sort are fair. We can only say that the current law aims to provide fairness by being flexible enough to allow this sort of order where justified, without consigning all husbands to such an onerous obligation forever more (contrary to the suggestion in the headline about men being doomed to be a cash machine). Most family lawyers will tell any woman who thinks she has a mealticket for life or a cashpoint for an ex that she is sadly very very wrong and that she will be expected to get off her bottom and try and get a job either now or as soon as the kids are old enough (if indeed she does not already have one and if indeed there are kids and if indeed she is primarily responsible for caring for them). Whether the current law in fact achieves fairness is a legitimate area for public debate, which this case has generated – unfortunately before all the facts were fully known.
Other things that did make it into the article however, are claims that the this case is a “paradigm case for the reform of Britains divorce laws”. We don’t think that it is at all clear that this is a paradigm case for anything – this will only be known when the judgment is delivered and we can see the full reasoning given. Depending on your views the facts as so far stated may well be a paradigm case for the reform of the divorce laws of England & Wales (not Scotland, which has an entirely different basis for resolving this sort of dispute which some would argue is fairer and others would argue causes real injustice in some cases).
What else?
- The article refers to Mrs Mills being awarded “an allowance she will enjoy for the rest of her life”. This is a misunderstanding of the law. If the needs of Mrs Mills or the ability of Mr Mills to pay change this could be reviewed – either the payments could be increased, reduced or stopped. And if Mrs Mills remarried her payments would stop automatically. References by Mr Mills’ barrister to maintenance for another 50 years are hyperbolic – the parties are 50 and 51 respectively. It seems unlikely that their circumstances will remain unchanged until they receive their telegrams from Buckingham Palace, if indeed they both achieve such a fine old age at all.
- The article says that : “Even the judge deemed Graham “reliable, truthful and frank” while stating he was “less impressed with the wife””. This misunderstands the relevance of questions of credibility to the outcome of the case. Mr Mills’ reliability, truthfulness and frankness will have helped the judge decide things like how much Mr Mills really had available with which to pay any maintenance award, and what his own financial needs really were. They won’t have been directly relevant to the outcome of the case (you don’t get a lower maintenance award because you are honest!). It appears that the court decided that it accepted Mr Mills evidence about his financial resources and needs, but on the basis the Court of Appeal has now ordered him to pay more it must have been pretty clear even on his own evidence that he could afford to pay more (whether or not that was fair is a separate issue).
- The article is written in highly emotive terms (which is the journalist’s prerogative but surprising since we were asked to comment on the basis that the journalist wished to fairly present a range of views on this difficult topic). Mr Daubney says : “It’s often claimed that ex-wives can see their former husbands as cash machines, compounding this by stripping them of the human right of fatherhood. This not only flies in the face of equality but can also cause men to question their desire to live. In the past seven years suicides among men aged 45-49 have risen by 40%.”. Whilst the family courts are often criticised for their handling of cases involving children this does not represent an accurate summary of what the law says about father’s involvement with their children.
- The article suggests that men may agree financial settlements favourable to their ex wives in the hope that it will avoid future problems with securing contact to their children, and gives a case study.
- A men’s divorce specialist is quoted as saying “Men face significant challenges in divorce, not only fighting stereotypes on the bench as it relates to custody, but also financially when it comes to spousal support.” It is unusual to hear a divorce specialist referring to “custody”, which is a legal term abolished (for these purposes) 30 years ago, but google reveals that he is in fact a lawyer from the USA where the law is entirely different (and where the term custody is used). It is puzzling why the journalist did not speak to a lawyer here who could have given an account of his experience of the law in operation in this jurisdiction, and an account of the bench (Judges) in England & Wales as opposed to Missouri. Research regarding decisions about contact and residence (now called child arrangements) generally suggests that there is no gender bias (see for example here and here), but many campaigning groups assert otherwise – with women’s rights groups claiming bias against women whilst men’s rights groups claim bias in the opposite direction.
- The article blames the “notorious” case of Parlour v Parlour (Ray Parlour was footballer) for the current state of “imbalance”, saying that case “set a new standard for wives perhaps uncharitably dubbed “gold-diggers”” (on the topic of Gold Diggers see here : In Defence of the Gold Digger, Dr Sharon Thompson). We don’t think this is a correct interpretation of the Parlour case, which involved very specific facts and A LOT of money.
- The article refers again to custody disputes and visitation rights (more American terms), before opining that : “There are men who go from having it all — a beautiful life, home and children — to almost nothing. Yet despite this many people have a deep and problematic “empathy gap” when it comes to these cases. If sons and daughters see their dads as life’s “losers”, what will it say to them about the modern role of manhood? Could it turn them off marriage — or even becoming a parent — altogether?” This may be so, but so far as we can tell there is no suggestion that Mr Mills has gone from “having it all” to having “almost nothing”. He has a successful business, a wife and child, who he is able to support with money spare, and there is no suggestion that he has been prevented from seeing his son. He does of course have to continue paying maintenance to his ex wife from 15 years ago for the foreseeable future.
- Overall, it does not really tell us anything new about the case other than that the son is 23 (quite old for full time education).
Sun 12 February :
London Evening Standard : ‘I’m not a gold digger’ says woman after judges rule husband should support her for life “(A woman who blew a six-figure divorce payout on a string of “unwise” property deals claims she isn’t a gold digger after judges ruled she should be supported for life by her ex-husband.)”. This heavily draws on an article in the Mail on Sunday in which “Maria hits back” :
- Maria Mills, 51, had her monthly maintenance payments increased by a third
- Ex Graham Mills went to court in 2014 seeking to cut or cap her payments
- The mother had to borrow £25,000 from friends and family to pay for legal fees
The article offers a view not so far adopted by the press :
The verdict, thought to be unprecedented, has been described in some quarters as a step forward for women everywhere – welcome evidence that a divorce settlement from long ago need not be a financial straitjacket for life….
Throughout their long, two-year battle, Mrs Mills, 51, has maintained a dignified silence.
Today, however, in the face of what she terms as a torrent of abuse and misrepresentation, she feels compelled to defend the judgment, and explain to the doubters just why she and other women like her deserve the additional payments.
The article goes into a great amount of detail about the contributions made by each of the couple during their marriage, as well as setting out her perspective and some of the background to the matter coming to court. Most of the basic facts below have by now come out already but this is the first time we have seen the case articulated in Mrs Mill’s own voice :
She says she worked tirelessly to support her ex-husband financially during the early years of their marriage and later worked just as hard to bring up their only son single-handedly, despite ill health.
She reveals too – and this is perhaps the greatest irony – that it was, in fact, her husband who brought the initial court action, seeking to reduce his maintenance payments so that he could spend more money on his new wife and child.
She had no wish to go to court. Yet so overwhelming was her case that the judge agreed to actually increase the financial support to her.
She says: ‘I feel like I have been through a character assassination, both at the hands of my ex-husband and the public.
‘They’ve said I’m a gold digger. It’s not true. I’m nothing of the sort.
‘The past two years of fighting my ex-husband have been incredibly stressful and have taken their toll on me physically and emotionally.
‘It has affected my family, my personal life and my business. So many times I have felt bullied by my ex-husband.
‘It seems to me he thinks he is above the law. But he is not. Just as I am not.
‘I genuinely believe women get the rough end of the stick after divorce. They have to juggle working and bringing up the family. Whereas men can just focus on themselves and their career.’
Perhaps more importantly, Mrs Mills gives further details about the nature of the settlement reached in 2002, saying that :
…while it has been reported that she received all of the couple’s liquid capital, Mrs Mills says this is not true. From her point of view it was a bad settlement.
‘The truth is that my husband forced the sale of our family home,’ she says.
‘I had poor legal advice and I should never have allowed myself to let go my directorship, shares in the company, pensions and life insurance.
‘On top of that, the maintenance should have been index-linked, to allow for inflation, and it should have been extended to cover our son until the end of his full-time education.
‘At the time of our divorce my husband claimed he couldn’t afford to buy a house for himself and was renting a room. He suggested I should use £200,000 to buy a small, terraced home for me and my son.
‘Yet immediately after everything was settled he bought a £350,000 house for himself, his girlfriend and her daughter – and paid for that daughter’s upbringing from the age of eight until she was 23.’
So, it appears that both parties later came to regret the deal they had struck in 2002. And, whilst Mrs Mills says that she has had to borrow £1/4m to finance the court costs (presumably no small part of that is attributable to the appeal) and that “the law is the law and you have to respect it”, it is reported here and elsewhere that the husband may take the case to the Supreme Court to see what they make of how the law should apply to their 2002 deal and their current circumstances.
Conclusion
There is now a reasonable amount of information about this case in the public domain, but the way in which it has been eked out in dribs and drabs, and the way in which specific facts are spread across numerous articles in multiple publications is really unhelpful for any member of the public trying to form an informed and balanced view. It appears there has been something of a media battle being waged this week, and it would have been really helpful if the Court of Appeal had produced a written judgment or expedited production and publication of the transcript so that commentators could have corrected some of the partial accounts contemporaneously. Whilst we don’t offer any view of the fairness of the law generally or the outcome in this particular case (which appears likely to be highly fact specific), it seems possible that more balanced early coverage of this case might have prevented some of the reported vitriol directed at Mrs Mills – the public are unlikely to have understood that Mr Mills had returned the matter to court having agreed joint lives maintenance, but later deciding he no longer wished to pay.
It is clear that public opinion on who is more righteous is very split, and we will continue to try and provide explanations and information about the law and the judgment(s) when available, in order to enable people to reach an informed view. As with individual divorce cases, there may be no right or wrong answer.
Feature Pic : Bethabara Millstone by Susan Smith on Flickr – thanks!