Divorce law needs reforming to reflect life in the 21st Century

Oct 7 2009 by Tom Scotney, Birmingham Post

The recent spate of high profile, celebrity divorces and record-breaking multi-million pound has led to calls for reform in divorce law. Elizabeth Howe looks at why England has become the divorce capital of the world.

In a recent public speech, Baroness Deech, the highly respected peer and professor of law, said the English divorce courts’ at times partial approach to women has led to some wives being granted multi-million pound settlements, following short, sometimes childless marriages.

Quite rightly Baroness Deech seeks certainty and uniformity in relation to financial and property division on divorce to avoid the sometimes excessive costs that can be incurred, and she should be commended for speaking out on this issue.

The statutory legal frame work has not changed since the late 1960s and early 70s when job opportunities for women and rates of pay were fewer and less equal.

There are now many more opportunities for women in the workplace and there are benefits available to women to encourage them back into full-time work when the children have reached a sufficient age for them to do so.

The law needs to be reviewed in order that it reflects life in the 21st Century, which represents greater equality for women.

The bottom line in all divorce cases is that of primary importance is the welfare of the children involved – their safety, security and home life has to be the first consideration.”

A recent example of a high profile case is that of Heather Mills, the former wife of Paul McCartney, who was awarded £24 million after only a four year marriage, irrespective of the adequate provision already made for the child of the marriage.

Baroness Deech said this is not only sending out the wrong message to young women – that they should pursue marriage to a wealthy and successful man – but it is also brings a schizophrenic attitude to women in a society which is at the same time encouraging, if not expecting, women to aspire to and achieve equality.”

It is important to emphasise that cases that hit the headlines and create the most controversy are the ‘big money’ cases where the matrimonial assets and income exceed the needs of the parties.

The reality of the vast majority of divorce cases is neither party will be able to maintain the same standard of living that they enjoyed during marriage and the division of assets and income must be based upon their comparative needs irrespective of previous contributions, financial or otherwise.

In a situation where the wife is to be the primary carer of young children, a reasonable home and maintenance must be provided.

In many cases this will result in the wife receiving more than 50 per cent of the assets irrespective of the parties’ contributions.

The big money divorce cases are at the heart of controversy surrounding the Court’s interpretation of the law, which should be revisited. The burning question is – is a share of the assets more than is reasonably needed, or fair when the marriage has been short, where one party has supplied the vast majority of the assets (whether by inheritance or hard work), or there are no children or the claimant has not worked?

Feelings of injustice are heightened if the claimant is the ‘guilty’ party as a result of adultery, whilst at the same time they have enjoyed a life of leisure and luxury whilst the other party has worked hard to accrue the matrimonial wealth.

It has been many years since the Court rejected ‘guilt’ as a factor when determining the division of assets, but the ‘innocent’ party’s chagrin at not being able to raise this as an issue is understandable.

Despite public perception, the courts do already take into account inheritance, pre-marriage acquired assets and other contributions when determining the division of assets and although the court may start from a notion of equality, it can and does depart from a 50/50 approach dependant on these factors. It is wrong to assume the courts are blindly following a 50/50 approach in all cases.

The reintroduction of ‘guilt’ to assist in determining the division of assets, although sometimes tempting, is also a dangerous suggestion. What’s needed is a system whereby potential legal costs are minimised. The re-introduction of ‘guilt’ will only add to the costs in a contested financial dispute.

In some ‘big money’ cases a discriminatory approach is being taken to husband’s with insufficient weight being given to the wife’s ability and to society’s need for women to become independent and self sufficient, irrespective of the wealth of the husband.

As a result of current public perception there may be many high-flying, hard-working young professional business men or women who might consider matrimony foolish without the protection of a fully binding pre-nuptial agreement.

Elisabeth Howe is a partner in the family team at Midlands law firm Challinors