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Will removing the blame help, or does the law governing financial provision need an update?
No-fault divorce is here. With the minimum timeframe of 26 weeks from start to finish of the divorce process, only time will tell if this New Law will achieve its aims.
Financial provision and the divorce / dissolution of a marriage are two separate things. The latter changes one’s marital status. The former deals with the more practical arrangements on the breakdown of a relationship/
Lawyers hope that the changes to the divorce law will mean less negativity and acrimony from the outset for separating couples. However, although couples cannot now cite ‘blame’ in the divorce paperwork, will they be able to resist voicing their perception of the reason for the relationship breakdown when considering other aspects of the separation?
Separating celebrities continue to be a public indicator of human nature. With social media a prevalent part of everyday life, what was once private emotion is more easily broadcast and accessible. Does this visibility of others expressing their emotions fuel the fires of acrimony in separating couples.
Negative emotion can be caused or exacerbated when the fear of the unknown becomes a reality. Once the initial ‘liberation’ of conscious uncoupling has passed, couples can then face the reality of uncertainty about where a person might live, how they might afford to continue their lifestyle post-separation, how often they will see their children now that parents have separate homes, and how they are placed with pensions looking into retirement. This can understandably cause problems in even the most amicable of splits.
The Current Law
The current law is based upon the premise that one cannot simply use a ‘catch all’ table, calculator or formula to assess what is reasonable to an individual’s circumstances. Each person is different, each marriage is different, and no financial split will be the same.
In many European countries, the law is quite different. Codified principles apply to cases, and concise and broadly applicable texts will typically avoid consideration of individual factors.
The law in this country looks at a more personalised approach, considering all the factors laid out in section 25 Matrimonial Causes Act 1973. These include the Parties’ ages, income and earning capacity, property and other financial needs and resources. The standard of living during the marriage is considered, as is any physical or mental disability, contributions and (in rare cases) conduct if it is so severe that it would be inequitable to disregard it.
There are differing opinions within the legal profession as to whether the calls for reform, specifically the Divorce (Financial Provision) Bill, are appropriate. This is the Bill that was introduced into Parliament by Baroness Deech 8 years ago, having had its first reading on 9 June 2014. It was reintroduced to the House of Lords on 19 July 2021. Baroness Deech is passionate about equality, and keen to support women continuing with their careers after having a family, herself being grateful for the support she was afforded with her own childcare to enable her to pursue her studies at St. Anne’s College, Oxford. The Bill has 3 key suggested provisions to provide more clarity for solicitors, and spouses, as to how the Court would approach financial division upon divorce. These are: (1) to provide for pre-marital agreements to become legally binding provided the Parties each have independent legal advice, and the provisions are deemed reasonable; (2) a starting point of 50/50 as being the fair and reasonable outcome in dividing matrimonial property, leaving aside any pre-owned wealth (under the Bill there can be no invasion of non-matrimonial property), disability and the needs of a dependent child (up to the age of 21); and (3) the end of periodical payments for life with an upper ceiling of 5 years unless this could result in serious hardship.
Lady Hale has spoken out and said of the Bill, 'I can see the attractions of all of this when set against the agony, the uncertainty and the expense of seeking our tailor-made solutions. But I question how one size fits all can possibly meet the justice of the case or fulfill the role of the family in shouldering the burdens which it has created rather than placing them upon the state. I fear that it assumes an equality between the spouses which is simply not there in many, perhaps most, cases.'
What Happens Next
The inflexibility which may result from the implementation of the Divorce (Financial Provision) Bill is not something which necessarily fits neatly into the common law legal system of this country. The long-running arguments of certainty -v- discretion, clarity -v- perceived fairness and bespoke solutions continue.
Whilst the current financial provision law is c50 years old, Judges have been able to modernise and develop the legal position using case law, which caters for individual circumstances rather than being a catch all set of rules.
A local, female Judge could be unsympathetic to the non-working mother seeking long term maintenance if she has juggled her own childcare with a demanding career. However, she would balance this considering the spouse who has sacrificed their own career to enable the other to progress without the demands of the home and children. Their long-term prospects are in stark contrast to the spouse who has been able to continue working. In terms of pre-marital agreements, the safety net of ‘needs’ recommended by the Law Commission is notably absent from the Bill. The fairness of strict implementation of the agreement is therefore questionable.
Healthy debate about family law is welcome. Whilst the Bill could be politically favourable in potentially keeping couples out of an already over-stretched legal system, is the current legal system better suited to taking account of individual, human relationships and providing more tailored outcomes to suit individual financial arrangements. Fairness is in the eye of the beholder.
News and Views : No Fault Divorce – Could This Impact Upon Financial Provision