For richer or poorer?

Wives of the super-rich are starting to reap greater slices of their husbands' fortunes in divorce settlements.

Victoria Maccallum reports on why the courts are being more generous

It is not often that the - usually male - super-rich engage your sympathies.

With their glossy lifestyles, bulging portfolios and Monaco tax havens, envy rather then empathy seems to be the order of the day.However, spare a thought forjet-setting couples who decide to divorce.

Even for mere mortals, divorce ranks with bereavement, moving house and rush-hour journeys in terms of stress levels, but for couples with combined assets running into millions, the misery and stress involved move on to an entirely different plane.Where most couples squabble over the CD collection and dividing the dinner service, super-rich divorces have to account for the Paris pied--terre, the Mediterranean yacht and the fleet of sports cars, not to mention the hard-cash settlement.The cash issue hit the headlines last month when Jacqueline Cowan, wife of the 'bin liner millionaire' Michael Cowan, saw her divorce settlement increased by the Court of Appeal to 4.4 million, 38% of her husband's fortune.

Mrs Cowan had initially been awarded 3.2 million after the 35-year marriage - which saw her husband build up his business from humble beginnings - but the judge ruled that her contribution to the marriage and business meant that she deserved a larger cut.This argument as to whether wives should be entitled to half the marital assets, regardless of whether or not they helped to accumulate them, is a thorny and long-running one.In 1994, Donatella Flick, after nine years of marriage to the heir to the Mercedes-Benz fortune, received 9.3 million of her husband's 175 million, a paltry 5.3%.

Two years later, the situation had not improved, with Katina Dart receiving just 10 million - 2.5% - of her husband's 400 million, made from the invention of beefburger packaging boxes.So how did these tiny percentages mutate into Jacqueline Cowan's hefty sum? The answer lies in a landmark case of October last year, White v White [2000] 3WLR 1571.

'White was really a turning point, throwing everything up in the air, and totally changing the way divorce settlements were assessed,' says Gill Doran, head of the matrimonial department at leading London firm Withers.'Pre-White, the judiciary and practitioners were working on the basis of a "reasonable requirement" test,' Ms Doran says.

She explains: 'Reasonable requirement is exactly as it sounds.

The person with less money in the marriage - usually the wife - would calculate how much money she needs a year to maintain her standard of living, capitalise this sum according to her expected lifespan, and the court would award a lump sum.'This system, which managed to preserve the fortunes of Mr Dart and Mr Flick, was riddled with inequalities.

'Most lawyers saw the system as unfair,' says Philip Rutter, partner in specialist London matrimonial firm Collyer-Bristow, who worked as an assistant on the Flick divorce in 1994.

'When the wife dies at the expected age, she would have used up pretty much all the settlement - she wouldn't have a penny to her name, and nothing to leave the children.'Erica Shelton, the partner with London firm Charles Russell who acted for Lady Conran in her 1997 divorce from restaurateur Sir Terence, agrees.

'It was terribly unfair - the longer the marriage was, the less money the wife would get, as she would be older, and therefore have a shorter life expectancy,' she says.Although the judges were occasionally flexible - 'if the marriage was long, or particularly wealthy, the wife may get a nest-egg', according to Mr Rutter - the system was far from ideal, at least on the wife's side.Lady Conran's case was one where the judges did use their flexibility.

After 30 years of marriage, during which she played a pivotal role in building up the Habitat retail chain and the Conran restaurant empire, Lady Conran was awarded 10.5 million of her husband's 85.7 million in recognition of her role.

This 12.3%, however, was still a long way off an equal split.The wife's lot took a dramatic turn for the better after White v White, making it clear that the 'reasonable requirement' concept was discriminatory and unfair.Pamela White, who had been married for 33 years and took an equal share in the job of running a 337-acre farm, took home 1.7 million, a rather more impressive 41% of the marital assets.'White introduced the overriding principle of fairness in settlements,' says William Massey, a partner at London firm Manches.

'The judge said that in determining what was a "fair" settlement, you should "refer to the yardstick of equality" - that is, a 50-50 split - and only depart from that for good reason.'The good reason for Mrs White's 40% - rather than 50% - was that some of the money used to buy the Whites' farm had originated from Mr White's family.

Likewise, Mrs Cowan did not get a fully equal share, as the court decided that, although she had helped to build the business in its infancy, her contribution since 1970 had been substantially less than her husband's.Although the situation post-White has been undoubtedly more favourable for the wife, it throws up one particularly sticky problem.

'Since White, the boundaries have become smudged and unclear,' says Ms Doran.

'White said that you had to use fairness "as a yardstick", which is a huge philosophical issue, and no-one knows exactly what that means.

With "reasonable requirement", at least you could work out pretty much exactly what your client would get awarded, but now it's very hard to advise with that certainty and firmness.'Louise Spitz, partner in the family department of Manches, puts it clearly.

'It's impossible to say what a client will get, as it comes down to an individual judge's discretion,' she says.'Judges' interpretations of what a wife's contribution to a marriage is will almost certainly differ, and the situation is that if the case is before 12 different judges, there will be 12 different results.'Other countries have surmounted this problem by introducing pre-nuptial agreements, where financial settlements are hammered out by lawyers before the first handful of confetti has even been thrown.Although not enforceable in this country, courts see them as 'a factor to be taken into consideration', according to Mr Rutter.

'Although there have been moves to make them legal here - there was a white paper a few years ago suggesting it - the courts are loath to implement them, as they would interfere with their discretion in cases.'However, this discretion is a double-edged sword, with many practitioners crying out for legislation and firm guidance.

Gill Doran, for example, says simply that 'the only way to clarify this uncertainty, which is not good for lawyers or clients, is to legislate'.Although she admits that 'there is an advantage in the courts having so much discretion, as each case is very different from the next', Ms Spitz also sees the need for firmer guidelines to be introduced.'With cases where there is only a house and small equity at stake, the results are clear, as the mother and children will be put first,' she says.

'But with big cases, where there is more than enough money to go around, the courts' discretion simply operates to create uncertainty.'This uncertainty obviously takes its toll on the divorcees, and financial concerns, combined with the obvious emotional strains, mean that client relations require a deft touch.'It's a fascinating area, as you deal not only with huge sums of money and complicated financial arrangements, but also real feelings and emotions,' explains Mr Massey, whose firm has handled the Paloma Picasso divorce, among other high-profile cases.

'Emotions are obviously running high, as you're determining the future course of people's lives, and divorce is one of the most stressful things anyone could ever go through.'Erica Shelton agrees that the area is a sensitive one, and clients need to be handled with care.

'People who come to me are always very distressed, but particularly wives,' she says.

'Often wives married to wealthy men don't have much knowledge of financial or commercial affairs, and aren't used to making decisions involving millions of pounds.

The husband can go to the office and bury himself in work to escape from the problems, but if a wife is at home all day, she has time to worry and get upset about the situation.'According to Ms Shelton, it is vital to develop a close relationship with the client.

'In big-money cases, they are dealing with very complex issues - such as offshore trusts that not all lawyers even understand - which many wealthy wives have had no experience of dealing with,' she says.

'It's important for them to have confidence in, and a close relationship with, their solicitors.'A close working relationship will obviously help ease the sting of separation - although not to the extent that a hefty divorce settlement will.A big-money divorce lawyer - to adapt Mick Jagger's ex-wife Jerry Hall's famous phrase - has to be not so much a maid in the living room, a cook in the kitchen, and a whore in the bedroom, as a shoulder to cry on in the office, a sympathetic ear at the end of a phone, and a ruthless corporate machine in the boardroom.