THE division of the assets of divorcing couples is a matter for judges’ discretion and has a “degree of arbitrariness”, the House of Lords has been told.

James Turner, QC, is representing the multimillionaire fundmanager Alan Miller, who has been ordered to give £5 million to his former wife after two years and nine months of marriage. Opening the landmark appeal yesterday, Mr Turner told the panel of five law lords that at present the courts had to use their discretion on how to split the money. This “had a degree of arbitrariness about it”, with couples unaware how judges reached the figures.

Urging the law lords to issue guidelines on splitting assets in “big-money” divorces, the QC said that the parties should know how their case had been decided and that lawyers would be able to advise future clients should such guidelines exist.

The Miller case is one of two being heard by the law lords this week that are expected to produce rulings that clarify law in big-money divorces. The second involves a challenge by Julia McFarlane against a ruling that her maintenance should run for a limited period.

Mr Turner said that the McFarlane divorce raised “entirely different” issues. There were three children involved in a long marriage and the wife had “sacrificed” her high-flying career to care for them. All the wealth had been built up from scratch during the marriage. The Miller marriage had been short and childless, with all the wealth brought in by Mr Miller.

Mr Turner said that although Melissa Miller had briefly given up her career it had been agreed that she could resume her former earning capacity after the divorce. He said this should be a justification for a departure from the practice of levelling out assets built up by joint contributions.

Today one could not gauge how awards were fixed, he said. “How did it follow that the wife should have the matrimonial home, worth £2.3 million, when she had come from a modest rented property?” Why was the award not a home worth £500,000 or £1 million? “What was the magic of £2.3 million that attracted the judge?” The settlement of £5 million had been made without explanation.

The Court of Appeal has rejected Mr Miller’s challenge to the High Court decision that he pay off the £500,000 mortgage on the matrimonial home in Chelsea and hand it to his wife.

Mr Miller, 41, also had to pay his former wife a lump sum of £2.7 million under last April’s settlement. Three months later Lord Justice Thorpe, Lord Justice Wall and Mrs Justice Black agreed that the settlement could not be challenged, saying it was not excessive. They said that by marrying her, Mr Miller had given his wife an expectation of a better standard of living and that the marriage broke down because Mr Miller went off with another woman.

The second case, on Wednesday and Thursday, involves the marriage of Kenneth McFarlane, a tax partner at a top accountancy firm earning more than £750,000 a year. His wife, also 44, received the £1.5 million family home and £250,000 a year for life but this was reduced at the High Court to £180,000 after Mr McFarlane appealed. Mrs McFarlane went to the Court of Appeal where the original award was reinstated, with a five-year time limit.

The appeals continue.

HOW SETTLEMENTS STACKED UP

2004 Ray Parlour, the Arsenal and England footballer, was ordered to pay his former wife, Karen, 37 per cent of his annual income for the next four years as well as a share of his assets.

Ms Parlour’s lawyer had argued she rescued his career and was entitled to more of his £1.2 million annual income. The former optician’s assistant from Romford, Essex, claimed that the earning capacity Parlour had built up was a “matrimonial resource”

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