Artist divorce case highlights sexism of the UK courts - and it’s not the women who are suffering01 Feb 2015
A stay-at-home father who was supported by his millionaire wife is appealing a court decision that would see him receive a £300,000 lump sum, as well as a long term £50,000 annual maintenance payment.
His appeal is based on the fact that his lump sum payment is to be partially funded by the sale of the former matrimonial home, in which he still lives, as well as the fact that his maintenance payments were calculated on the basis that he goes back to full-time work and secures the salary that he had 11 years ago.
Rupert Nightingale had worked as a picture editor and photo director for Men’s Health magazine until 2003, when he gave up his full time profession to pursue a part-time career in fine art photography, whilst also acting as a househusband. He was married to his wife, Kirsten Turner, for seven years, having dated her for over a decade beforehand. Ms Turner had supported the family during the marriage, earning £420,000 per annum as a partner at PWC.
Mr Nightingale believes that he should be able to remain in the former matrimonial home, have his maintenance payments upped by 50% and continue being a househusband on at least a part-time basis. He believes that the court has been guilty of gender bias and does not think that the same order would have been made in relation to a housewife in his position.
As Lord Nicholls explained in White v White  , fairness should be the ultimate consideration by a court dealing with financial distribution on divorce. However, the focus in this case should not be whether the law is fair to homemakers, but rather whether the MCA 1973 S25 factors have been applied in the same way that they would have been if Mr Nightingale had been a woman.
The strongest argument in Mr Nightingale’s favour is likely to be found through S25(2)(f) MCA 1973, under which the court must give consideration to the contributions each party has made to the welfare of the family. It has been highlighted many times that there must not be any bias in favour of the breadwinner and against the homemaker, and this has protected many women who have sacrificed their careers to be housewives and child-carers.
Surely then, Mr Nightingale, who acted in the same manner, should also receive such protection? After all, the decision for him to cease full time work will have been made jointly by him and his ex-wife, and it would no doubt have been his support as a househusband that enabled Ms Turner to progress so far in her career.
When considering financial resources under S25(2)(a), the Court is to take into account not just present resources, but also those that will become available in the foreseeable future. For this reason, a spouse’s earning capacity can be considered and this explains the court’s decision to make an order based on Mr Nightingale returning to full-time employment. However, the court does not seem to have applied this factor in the same way in which they would have applied it to a woman in Mr Nightingale’s position, as they appear to have overlooked the fact that he has dedicated the past decade to childcare, which may have damaged his earning capacity.
The financial needs of a party to be considered under S25(2)(b) can often be reviewed jointly with the standard of living enjoyed by the family before the breakdown of marriage – a consideration under S25(2)(c). Mr Nightingale would have become accustomed to a certain lifestyle when married to Ms Turner – one that he will not be able to maintain unless he returns to full-time employment. It can therefore be said that the court order does not meet his financial needs, despite the fact history has seen women successfully claim that they need three houses.
The court may, of course, argue that they have not been sexist and that they would have applied the law in the same way if the roles of the couple had been reversed. They could claim that the basis of the order rested on the relatively short length of the 7-year marriage, along with the fact that the couple’s child is now spending four nights with Ms Turner and just three with Mr Nightingale. The latter factor may also justify why the court did not deem it appropriate to keep Mr Nightingale living in the former matrimonial home.
“The difficulty for Mr Nightingale,” says Kuits Family team “is that it is impossible to say with absolute certainty what the court would have done if the spousal role had been reversed. There may be those who believe that the law is incorrect and that those who are able to go back to work should have to, even if they have taken many years out to raise their children. However, this is not the question at hand.
“The imperative question is whether the law is being applied equally to both sexes, and the case of Mr Nightingale seems to suggest that it is not. The S25 factors should not be simply about protecting women who are vulnerable, but rather about protecting any spouse in the financially weaker position. This case suggests that fathers who make such a sacrifice are not necessarily guaranteed the same protection afforded to mothers who do the same.”
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