The man on the Clapham Omnibus may well think that the law on financial provision following divorce is clear... perhaps he would be forgiven for thinking it is a science and not an art but nothing could be further from the truth.
In fact the law is uncertain. For years we have based settlements on needs. As the big cases unfolded over the years equality became the starting point followed by compensation and sharing in some cases. Statute has obviously shaped the landscape to include pension sharing and a leaning towards a clean break where-ever possible.
We look to the case law but the reported litigated cases are not about Mr and Mrs Average but tend to be big money cases. Do these cases have a relevance to most people? Advice to any client has to be peppered with unpredictability... perhaps one of the reasons we try and settle out of court or encourage alternative dispute resolution... a method to take control of your own destiny with litigation as a last resort.
All of these difficulties are exacerbated by the loss of public funding leaving many people without representation. The government may have intended to save money and send everyone to mediation but the reality is the courts are getting clogged up with litigants in person leading to much greater delay. In some cases the costs are disproportionate leaving opinionated clients with no resources .. a moral victory maybe!
As a result of all this there is a major move to mediation and arbitration but more than that a need for a change in the law. The Law commission have been looking at this issue recommending that prenuptial agreements should be binding subject to some conditions such as legal advice.
As a result of pressure from organisations such as Resolution calling for reform there is now a private members bill which is due to have its second reading. The proposals simplify the law and make prenuptial and post nuptial agreements binding provided there is disclosure and legal advice. This will give the parties some control over their destiny and hopefully cut down litigation and animosity for parties who amazingly once loved each other.
By Gillian Davies, solicitor and mediator in the family law team