Are our divorce laws a mess?

Lord Norton

44090Having received some very good responses to the question about drugs, I shall be interested to see if we attract a similar level of responses regarding our divorce laws.

High profile divorce cases variously raise the issue of whether our divore laws are fair.  There are problems with generalising from specific cases.  However, according to recent reports, there has been a marked increase in the number of pre-nuptial agreements.  Though not having the force of law, the courts are starting to take some note of them. 

Baroness Deech, a family law expert, recently said our divorce system was a mess.  One lawyer, Philippa Dolan, has described London as ‘the divorce capital of the world’: ‘Men’, she said, ‘do get a raw deal from the courts here’.   It used to be the other way round.  Women tended to lose out until the passage of the 1973 Matrimonial Causes Act which provided that divorced spouses are paid enough for their ‘reasonable needs’.  Since then, the courts have changed the basis of determining a settlement to one of ‘fairness’ and ‘equity’.  But is this how they actually work?  How equitable is it if after a marriage of two or three years, with no children involved, one party who has contributed little to the wealth creation of the other, gets a sizeable settlement?  The person getting the settlement may be male or female.  There is a reported increase in the number of successful women seeking pre-nuptial agreements.

Baroness Deech wants to reform the divorce laws.  Is she right?  If so, precisely what change is needed?  Or is it the case that we are getting things out of perspective, influenced by atypical cases, and that the courts normally produce a fair and equitable settlement?

17 comments for “Are our divorce laws a mess?

  1. Troika21
    28/09/2009 at 1:50 pm

    I can’t say I’m the best person to comment on this, but statements like ‘divorce capital of the europe’ are neither informative nor helpful.

    From what I have read, there do not seem to be dramatic problems, and some of what has been suggested by Baroness Deech seems to be needlessly reactionary.

    Adopting more continental divorce laws seems to be the best thing, in which only the assets that are aquired after the marriage are divided, rather than all of them, indiscriminately.

  2. Bedd Gelert
    28/09/2009 at 2:25 pm

    If a chap is married 3 times for 15 years each, I’m not quite sure how he is to find 150% of his wealth [3*50% ] for being married for what could be less than half his lifetime?

    I can therefore quite understand why any guy or gal would seek a pre-nuptial agreement.

    Anyone who thinks they are not romantic, or that the person does not anticipate the marriage lasting, fails to address the fact that buying life insurance or car insurance or health insurance does not mean that people are anticipating the worst.

    They are merely trying to ensure that they do not end up in penury in retirement should the asteroid hit their marriage and anyone who refuses to sign a pre-nup is certainly not someone who I would want to be hitched to.

    Anymore than someone who refuses to make a will and invest in life insurance is someone who I would be willing to have a family with.

    “How you do money is how you do life” and if anyone has a ‘just hope for the best’ rather than preparing for the worst approach is going to have a nasty wake-up call somewhere on life’s highway.

  3. franksummers3ba
    28/09/2009 at 2:49 pm

    Lord Norton,
    Unlike Troika I can say that I am the very best person to comment on this. Saying it will not make it true but I have lied before. I do think that Civilian concepts of community property and commingling ae essentialy more just than simply ignoring the questions they address. In 49 of 50 States United the English Common Law rules and in my State of Louisiana is the exception. The French Code, Code Napoleon, Spanish Pandects and English Common Law have formed the basis of the Louisiana Civil Code. We have some affinities with Scotland’s legal traditions. My grandfather was Chief Justice of the Louisiana Supreme Court and so I do not pretend that I am uncommitted to our system for ourselves. I am also divorced. Perhaps all of this could scarcely be less relevant.

    I would say part of the solution to me seems to lie in large policy questions nobody can really address anymore. For example I cannot help wondering (because you accept posts from an oddity like myself perhaps) if the HoL could at least consider allowing Scots Clans and new minted Family Associations in England other places to voluntarily enroll members and having done so be able to keep some taxes(1% of collected revenues) and use them for certain chartered purposes. Besides reimbursing family caregivers, investing in family projects and such they could have the rights of friends of the court in divorces and domestic matters. I cannot imagine such things succeeding but we must face the fact that human community and society are distinct. Marriage is one of the last ofwhat were formerly dozens of forms of community still supported by law and most people favor its continuous trivialization. I do not hate men nor favor giving everything to golddiggers but one could be an atheist and still see marriage as sacred and imperiled. Should divorce be less risky?

  4. Bedd Gelert
    28/09/2009 at 4:08 pm

    One really does begin to wonder what all the poeple in Westminster who ‘scrutinise legislation’ do all day ?

    http://news.bbc.co.uk/1/hi/uk/8277378.stm

    Isn’t the real answer to have fewer laws, as many which are passed are not enforced, and many more are applied without any common sense or consideration.

  5. Nick
    28/09/2009 at 4:28 pm

    Here is part of the solution.

    When married, half of all pension contributions are earmarked for the partner.

    Then, on divorce, these pensions are excluded from the settlement. Each partner has half the contributions in their name.

    Simple, and non contentious

    Nick

  6. Croft
    28/09/2009 at 5:43 pm

    Troika21: For all sorts of matters various countries (and to include franksummers – in the US certain state courts) are well known for being the ‘best’ place to pursue certain litigation. This is a statement of the obvious and hardly that controversial.

    On the pre-nups, it’s perfectly true they are becoming more common but there are a number of problems with this. While actually I think they are a good idea the present situation is that they are not recognised in law and parliament has chosen to let that remain but the judiciary are by a series of incremental judgements bringing them into law. With statutory rules we would have clear terms of what is an isn’t allowable and how to interpret them. At present the judge may enforce the pre-nup if they agree with it which supplants any pre-agreed wishes with the judge(s) preferences and judge made precedent. Parliament should be making this change if it is to be changed with clear rules not as at present something more akin to the old courts of equity.

    Lord Norton talks of ‘reasonable needs’ but as I think he was hinting case law has turned that on its head and we have something quite different again without parliament making or intending a change in the law. Originally parliament emphasised the clean break nature of divorce and yet the courts increasingly (in high earner cases) maintains one ex-spouse in the style which they had become accustomed from the ongoing new assets of the other, from their existing assets or both which entirely undermines the intent of the law.

    There are obviously proper issues to do with children and/or a shared business where assets may need to be divided equally but an equal/more equal split has spread even into very short marriages with no children where one spouse has brought the entire fortune/assets into the marriage from prior earnings.

    I don’t agree with all that Lady Deech says though I am rather sympathetic to one point. The courts seem in this area of law to be trapped in the 1950s where the wife (it usually is the wife with minimal assets) is ‘presumed’ to be incapable of supporting herself and the law must step in to ensure her financial position. I think society has moved on from this and the younger a woman is she has every expectation (and the law should have every expectation) of her being able to maintain herself yet the law seems to patronise/discriminate (to her financial benefit) in a way that would be deemed extraordinary, perhaps even unlawful, in almost any other circumstance. [Obviously with divorces of couple in their later lives the issues are rather different]

    Bedd Gelert: Your point touches on quite a problem area. It’s not uncommon for a couple to divorce assets/maintainable paid/divided and one or both then find new partners. However the earning partner even if they remarry and have a new family has to subsists on their original share where the other can cohabit (as long as they don’t remarry) and normally maintain their share. This can have perverse financial consequences for second families.

  7. baronessmurphy
    28/09/2009 at 5:43 pm

    Bedd Gelert, Now really your maths wouldn’t pass CSE level would it? A chap who divorces 3 times just gets poorer and poorer unless he has the good sense to marry a rich woman second and third times or, as is frequently the case he keeps increasing his income. All the divorced men I know get poorer for a while, but not half as poor as their ex-wives.

    But to the question: I can’t help thinking Baroness Deech is over-reacting to some high profile tabloid cases. Broadly the recent English guidelines seem fair, that unless there is an explicit agreement to the contrary, both partners bring to the marriage an expectation that they are equal partners in an institution that will succour both of them financially and emotionally and that when it ends they should split their assets equally. When a marriage lasts for just a short time then clearly an imbalance of financial contribution, the bringing up of children instead of earning money, and many other factors should be taken into account but the notion that a split should be 50:50 unless there are very specific reasons why not seems good to me.

    But I do support pre-nuptial agreements, indeed I have one. By the time one has a second marriage one is likely to have children or other dependents to whom one owes responsibilities so it’s good if everyone is clear about the arrangements up front. Our lawyers told us that judges tend to think that after 7 years or so a prenup is not likely to stick in the event of a break-up and the marriage would be viewed by the court as a long term one, at least until pre-nups are finally made legally binding. But it is quite reassuring to know, unromantic though it may feel, that you have taken some of the uncertainties out of the future.

    • Croft
      28/09/2009 at 5:49 pm

      Now really your maths wouldn’t pass CSE level would it?

      CSE no, but at GCSE it might manage a ‘B’ grade…

      😀

      • 30/09/2009 at 6:23 pm

        Croft, I should just stick to the PhD + buy a pocket calculator, it’s much easier.

  8. Bedd Gelert
    28/09/2009 at 6:43 pm

    “Bedd Gelert, Now really your maths wouldn’t pass CSE level would it?”

    Well, okay, say a guy marries at 20 with a fortune of £ 1,000,000 and after 15 years it is wiped out in his first divorce so he loses 500,000. He marries wife number 2 and spends the next 15 years making up the half-million he lost first time round.

    He then loses that half-mill to wife number 2. Since he is not a clever chap he makes the same mistake again. And after 15 years he makes back the half-million but loses it in the 3rd divorce. So he loses MORE than he has ever been worth.

    Of course, his wives may well have helped make him that money, which I don’t dispute.

    My point is merely to illustrate that no sane individual can clearly believe that this is a sensible way for any man, nor any woman, to behave whether the husband or the wife is making the ‘stellar’ contribution to the finances.

    Clearly not everyone will agree and they will continue to get married as before – I merely mention this as a way of illustrating why the number of pre-nups is slightly up at 100%, but that this is the thin end of the wedge, and I confidently predict that over 70% of people getting married will have pre-nuptial agreements within 5 years.

    As someone once put it in respect of the financial crash “It’s a disaster – I’ve lost half my assets, and I’ve still got my wife..”

    • Run Seven
      29/09/2009 at 11:43 am

      Bedd – not quite true.

      Over the course of this chap’s three marriages, he has earned £1m the first time, £0.5m the second time (to get him back to a net worth of £1m) and £0.5m the third time (again to get back to £1m). That equals £2m. If he is forced to give up half of his wealth at every divorce, he loses 3 lots of £0.5m, which equals £1.5m.

      True he loses more over the course of 30 years than he has ever been worth at any one point in his life, but his loss from those three marriages is 75% of his total accumulated wealth. He is left with £0.5m.

      • Bedd Gelert
        29/09/2009 at 9:19 pm

        But how on earth can that be right !?

        If a woman was married for 45 years, say half her life, surely the maximum amount of her £ 2 million pound fortune that she should give up in a divorce is half of it – i.e. £ 1 million.

        So how on earth does it make any sense that because someone marries 2, 3 or 4 times that they lose a greater amount ??

        I am starting to have a great deal of sympathy with that guy who may end up going to prison rather than cough up an inequitable share of £ 400 million.

  9. 29/09/2009 at 2:08 am

    I have looked at recent reports of Ruth Deech’s declarations, trying to understand her point of view. She seems to be primarily upset by the sort of divorce settlement, some would say gained, as reported in the Mills/McCartney case. What on earth compels her to compare divorce awards in England [sic] with other, mainly Roman Catholic, European countries?

    Baroness Deech rather blows the top off your well-meaning attempt to deflect the gender issue, Lord Norton. She goes on to suggest multi-million pound awards are degrading to women based on the notion that women have equal opportunities for careers.When, if, women truly receive equal opportunities, she can have another go, but I suspect most women would endure the degradation with a few million in the Cayman Islands.

    Further nonsense includes “getting married to a well-off man is an alternative career to one in the workforce…More than that, maintenance laws cushion and legitimise the attitudes of employers who discriminate against women, because they are aware of the ’meal ticket for life’ mentality.” First, no woman has ever been turned down for a job because a prospective employer thinks she’s going to get a multi-million pound payoff after she’s gone to the effort of marrying some rich bloke and, second, maintenance for ex-wives is rare these days. I really can’t be bothered with the rest of her reactionary claptrap though one specific point you raise is whether one partner deserves a sizeable settlement after a marriage of two to three years.

    Ruth Deech would have it that no partner should expect a settlement within a three year marriage. A huge amount can be done within that time, even if we deliberately exclude any time spent in the relationship prior to marriage. Is this a case of ‘never mind the quality, feel the width’? I can almost hear her saying “It’s the right thing”.

  10. Simon
    29/09/2009 at 9:36 pm

    It always strikes me that with divorce people tend to get het up about injustices in inverse proportion to their actual importance. I do not want to live in a country with a divorce law primarily adjusted to the needs of millionaires, because I am not and never will be one (surely the same is true of most people?).

    Most people who get divorced are not worth very much, they have an income and perhaps some savings or a house, but a substantial amount of capital that isn’t really doing something is rare. Far more common are the following sorts of things

    1 – people really do make life changing decisions based on expected future income that can have long term consiquences. One partner in a marriage may not be bringing in much because they have chosen not to do a high earning job precisely because the other partner brings in plenty for the both of them. This doesn’t mean they are sponging or anything, but for instance if one person has already done several years of strenuous professional training and marries another who is thinking of starting such a course is it really unreasonable for the other partner to decide not to undertake such training themselves, and so reduce their future income, so that they are free to actually spend some time with their partner, rather than just with their books?

    2 – the life choices people make when they get married are often based on their joint future incomes, not each individual. My wife works in forestry, I work in Public Affairs, living near London will get in the way of her career, but will undoubtedly increase our joint income, so isn’t it logical to move to London, even if that boosts my income but decreases hers?

    3 – couples only need one of many things, ex-couples need two. In some marriages everything is owned in common, in others it is arbitrary, but in a sizeable number the partner with higher income puts their money in purchases that will last, like cars, whilst the other puts their money into shorter term goods, like theatre tickets or food. At the time of divorce only one of these things will show up as capital ‘in the marriage’, giving the impression that only one partner has contributed to it.

    I could go on, but really these are all things that a focus on the super rich of this world would ignore (after all they usually have independent careers, can afford to change their lifestyles at any time they like and own two or three of everything anyway). Does that mean that our divorce laws should ignore them to?

    The rule of ‘reasonable needs’ is stupid. I have just been involved in a will dispute that made this very clear indeed. However, it does allow for all these sorts of factors to be taken into account without setting out such a long and complex system of rules and exceptions that would make understanding divorce law utterly impossible for anyone but the most skilled professional. If it also leads to some bizarre settlements in a very few cases then frankly I don’t care, and I don’t think it should be top of parliament’s concerns either.

    And pre-nups. They clearly serve a purpose for couples who can agree about what they want, but then if they really where so sure why can’t they come to an amicable division when the marriage ends and save both parties a lot of money? Personally I think that people should be excused of any decision taken in the first throws of love, and I am glad the law allows for this at present.

  11. 30/09/2009 at 1:25 am

    The law needs to be updated. Back in 1973, the assumption would have been that one partner (the man) was the main bread-winner in the marriage, and the woman stayed at home to do the housework. So the law urgently needs to be reviewed to reflect the realities of modern life.

    I don’t agree with Baroness Murphy that “a split should be 50:50 unless there are very specific reasons why not”. I would go to the other extreme, that partners should only take away what they contributed, unless they can show that they deserve more (because they gave up a job to look after children or whatever).

    Pre-nuptial agreements should be legally binding, there’s no doubt about that in my mind. At the very least, it would remove the current uncertainty that surrounds their legality.

    As for the proposed laws being only for millionaires, I can’t agree. As far as I’m concerned, if you have £50m you can give £25m to your ex-spouse and still live quite comfortably. What I’m concerned about is the people who’ve saved hard and lived a modest life, and are then ruined by divorce, forced to sell their home, lose a chunk of their future pension so face poverty in retirement, etc. Maybe people who spend all their income every month might think divorce laws, pre-nups, etc. only apply to the wealthy. But I believe they are even more relevant to those on lower-average incomes who have attempted to put away something for their future. With all the problems of personal debt and people not saving for their futures, I do resent any laws that penalise people who save rather than spend – be it divorce laws, means testing for care in old age or anything else.

    • 30/09/2009 at 2:17 pm

      By 1973 most women, exiting from full-time education, were expected to work. Note, the Equal Pay Act was passed in 1970.

  12. 29/10/2009 at 4:23 pm

    I hope it’s not too late to make some comments:

    1. You write, “Women tended to lose out until the passage of the 1973 Matrimonial Causes Act which provided that divorced spouses are paid enough for their ‘reasonable needs’. Since then, the courts have changed the basis of determining a settlement to one of ‘fairness’ and ‘equity’.

    As you point out, Philippa Dolan, has described London as ‘the divorce capital of the world’: ‘Men’, she said, ‘do get a raw deal from the courts here’. This is in line with what Baroness Deech has been saying.

    2. So divorce law must be changed to reflect the will of Parliament, if there is sufficient consensus for this to be possible, though – hopefully – this will not include reducing the marriage covenant to a contract by making prenuptial agreements legally enforceable.

    3. Baroness Deech has also said, “Policy makers will not acknowledge the difference between marriage, cohabitation and one-parent families, and refuse to confront a major factor harming society, even while issuing studies and warnings about gang warfare and the carrying of knives, drop out rates from school and failure to find employment amongst youth. If anything, the debate is couched in terms of having to adjust to new family structure, and legal academics writing in this field hasten to make the case for adjustment of law and practice to the new situation rather than examining what has gone wrong. Any opposing voice is drowned out.” I agree with that. If more people take drugs we try to stop them, we don’t make it easier for them.

    4. Baroness Deech has proposed, “I would like to see government and public attitudes change, difficult though that is. Divorce is not a private matter, it is of real public concern and cost, with a ripple effect on the family, the community and the whole country. So public attitudes have to be changed, just as they have been in relation to environmental issues and smoking, with greater or lesser success. Every government initiative now has to have a impact assessment attached to it, weighing its impact in issues such as race, gender equality and the environment; support for marriage and the best interests of the child should be added………. if we are serious about the need to hold or reverse the rise in divorce, then there are two ways forward. One is by education of young persons still at school. The advantages and disadvantages of educating young people about smoking and food have been explored. They certainly hear the messages even if they do not heed them, and some may say that it has done some good. There is no reason not to try the same approach in relation to divorce. Marriage education could be coupled with the existing sex education programmes, each reinforcing the other. A marriage education programme could focus on the factors that are known to make for a happy or unhappy marriage, the financial costs of splitting up, the dangers to children of broken marriages, the paternal role, and the career prospects and post-divorce situation of women…. The other remedy is to tighten divorce procedures by insisting on a delay before freedom to remarry in divorces based on the adultery or unreasonable behaviour grounds, which can be processed so quickly at the moment.”

    5. Actually, there are already available and in use effective research-based marriage education programmes including premarital inventories. Sadly, not many members of Parliament bother to investigate them.

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