How many times is it said that the law on financial division following divorce is an art not a science. Those who have been in practice for some time very quickly learn never to ask your client are you happy with an outcome... more likely can you live with it? Is it not true to say that most men feel they have been robbed of that which they have worked for and women feel they are treated unfairly being left with much less than their estranged husbands?
I think one might be forgiven for taking a cynical view that this has become more urgent due to the removal of legal aid and a flurry of litigants in person. The burden has now fallen on family judges… a good reason to apply pressure for change? However, there is significant potential hardship to those who cannot access legal advice. So they are all being railroaded to mediation. I am a big supporter of mediation but only in the right circumstances... it is not for everybody and for those who have been in a marriage with an imbalance of power it merely puts them back into that arena. However, good the mediator is they may not spot a sophisticated imbalance which has subsisted for many years.
The trend is away from the nanny state and a move towards the parties taking control. This alternative dispute resolution becomes more important and relevant and in looking at settlement means outside the court one does need to know what one could expect a court to sanction. These are all good reasons for certainty to be created.
So in essence the law is in need of reform. A new bill called the Divorce (Financial Provision) Bill introduced by Baroness Deech has had its second reading. It should perhaps be noted that Baroness Deech is not a family lawyer but a leading academic in Human Fertilisation and Embryology. She is a critic of the current law and female dependence on men. However, is it not true to say that a good deal of the so called dependence is created by men themselves who often say that they agreed between themselves that the wife should remain at home with the children. We all know that child care is expensive and often unreliable... one parent has to take a back seat and be the leading carer, whether it be the husband or the wife.
For many years the law in this area has been governed by the Matrimonial Causes Act 1973 which sets out a checklist to be looked at in deciding a case. This will be replaced by a blanket provision of equality in relation to matrimonial property. That is to say the family home and property acquired after marriage. On the face of it a welcome departure from the old law. There are of course circumstances where other factors would require consideration. Prenuptial agreements are likely to become far more common place. After a short marriage equality may be completely inequitable. The Bill recognises this and makes prenuptial agreements binding subject to safeguards such as legal advice and disclosure.
So far the suggested amendments seem to have merit but then the sting in the tail... spousal maintenance limited to three years. Can this be equitable? How many spouses have taken a back seat with full backing from their husband to look after the children. Many husbands do not want their careers hampered by calls from school during the working day... little Johnnie is ill... can you collect him now? However, it is these very spouses who may have given up good careers who will suffer – they can never achieve their pre marital career position. So can this really work... previous reviews suggested formulas and other methods to achieve fairness.
An admirable effort to achieve... “Transparency, democracy and understand ability” but still a lot of debate and work to do.
By Gillian Davies, family law solicitor & mediator