Family law in action: will we go the way of the Scots in 2011?

Family Law | 30 Dec 2010 2

It is New Year’s Eve and another year is about to begin. I always feel some trepidation when Big Ben begins to chime 12 and the first day of January begins. This year I feel more anxious than ever although, as always, I will aim to start the New Year in a positive frame of mind. Why not? No point worrying unduly unless it actually happens!

In my last post I looked at the stand out cases of 2010. In this, my last post of the year, I wish to bring together the issues which I think are the most important f the year in terms of law reform – and let’s look out for them in 2011.

I know that most family lawyers believe 2011 will be a momentous year for family law. Reform is certainly on the Government’s agenda, assuming the Coalition survives. If it does, I believe there is every chance that the current government will seek to reintroduce the provisions of the Family Law Act 1996 – and try to compel couples in failed marriages to stick together by involving them in a procedure which, back in the 1990s, was ultimately ditched.

My views about the futility – and potential for harm – of locking couples into a dead marriage are well known. They have been reinforced by the work of my son Ben, which is available to read elsewhere on this blog. Ben does not believe that when the “uncoupling” process is complete, a marriage can be saved. Rather, all the independent evidence shows that it cannot be saved. So let’s see how far the government goes in relation to divorce reform.

Children

When it comes to cases involving children, we will have to wait and see whether private disputes (as opposed to childcare cases involving local authorities and public law) are consigned to tribunals for strict adjudication. This would be a government-directed drive that would save a substantial sum.

Mr Justice Coleridge has already made plain his opinion: that courts need to be exercising more discipline and authority than hitherto. That is his answer to intractable contact disputes. One wonders: how does that sit with the idea to move these difficult cases to tribunals? After all, tribunals would not only provide a continuum of the “touchy feely” approach of which Mr Justice Coleridge has wearied; but with parties representing themselves, tribunals would lack the “teeth” that he has recommended.

Finances

Now here is a thorny subject – and yet it need not be so.

At present, there is a discretion left to the courts to decide the outcome for all the couples who appear before them. This discretion can be exercised within the provisions of the statute
contained in section 25 of the Matrimonial Causes Act 1973, and existing case law. The intention is to meet reasonable needs of both parties, and to fairly divide all the assets, usually capital income and pension provision. It works.

In the case of White v White [2000], the House of Lords stated that no distinction should be made between the homemaker and the breadwinner. It was a long overdue recognition of the contribution that a wife makes to a marriage. Thus a wife who raises the children is valued as much as the husband who goes out to earn the money to support them. Marriage is viewed by the courts as an equal partnership and rewarded equally.

Even so, the outcomes of some of the so-called “big money” cases have attracted an undue and disproportionate avalanche of criticism, from those who are shocked at the size of the settlements won by certain women by virtue of their status as wives. These critics call for strict division of wealth, to deter perceived “gold diggers” who, they feel, make little or no contribution to the family wealth. I do find it ironic that many of these same critics are keen to promote the sanctity of marriage and prize the “marital partnership” – but only until the money is mentioned.

If you haven’t yet read the recent House of Lords debate on this subject, I recommend it to you – if you like horror tales, that is. You can find the full text here.

Here is an extract:

That London is described as the divorce capital underlines the fact that the UK is out of step. It draws one side to precipitous action rather than reconciliation and inevitably therefore to higher cost. I am left to reflect that divorce is seen by most high-value cases as a one-way bet for wives and that invariably the husband better agree to everything as he is only going to pay anyway.

For those of us who are practitioners, there is much here that may offend. If you believe in marriage, which creates a legal partnership, then presumably you believe the status of marriage gives both parties an entitlement to share in the family wealth. Given that there is no legal distinction between the status of the parties to a marriage – i.e. they are treated as equals – you can’t have it both ways, can you?

This House of Lords debate featured people who are incredibly privileged and fortunate, and they speak so assertively! But what experience do they have in practice, advising people who are considering divorce?

In reality, as practitioners and the judiciary (themselves former practitioners,) know only too well, the majority of those who seek divorce have few assets and must juggle every penny to make ends meet. Not one of their noble Lordships and Ladyships has been elected to represent us in the House of Lords, but, albeit with the best of intentions, they believe themselves wholly competent to change our law. Are they?

One idea that won support in that debate was the move to European law for the division of matrimonial assets. So let’s see for ourselves how a strict division of matrimonial property would work in practice. In Scotland for example, there is a strict division of assets and no ongoing maintenance. As it is Hogmanay, what about an exercise in Scottish divorce?

Family law in Scotland

Let’s assume the divorcing couple was married for 25 years. They wed in 1980 and separated in 2005. The wife never worked as she raised their four children, who are all now working. She is now in her 50s. Her income capacity is very low. They live in rented accommodation in Glasgow.

After the husband and wife separate in 2005, the husband leaves his job and sets up a new company in Edinburgh. He also receives an inheritance from the estate of his father who dies. He buys himself a house with the money and his new girlfriend moves in. He maintains his wife until he decides to divorce.  The company shares are all in his name and they are soaring in value. His income rockets. He has no pension. The husband takes advice from a Scottish lawyer and learns that he will do very well indeed. He stops paying maintenance. There are no “matrimonial assets” to divide.

The husband can legally retain ownership of the house devolved from an inheritance and his company because it is a post-separation asset. He need not pay his wife any more than a brief period of maintenance.

In Scotland, as a Scottish family lawyer recently (and ruefully) advised me, divorce isn’t about “fairness”. Instead, he said, it’s something of an academic exercise. So the Scottish wife is left without a penny from her husband and in penury.

According to Baroness Deech and four other Noble Lordships who spoke in that House of Lords debate, such an event would be an improvement upon current English and Welsh law. And this wife didn’t even seek a divorce!

However, when being critical of the Scottish system it is worth noting that its legal recognition of cohabiting couples is far more progressive than that in England and Wales.

Family law in England and Wales

What if this couple had lived here, in England or Wales? None of those assets would be excluded, since they are needed to meet both parties’ reasonable needs.  Instead, all the income and capital would be divided between both parties to ensure fairness, following a long marriage in which both parties’ contributions carried equal weight. The wife would not be left virtually penniless. Instead she would have capital and an income for life. She would retain her dignity, and would be able to bequeath her own modest estate to her children. She would not be rendered a virtual chattel of her husband, and thus the value of their marriage would be recognised in law.

The final irony is this: in Europe, unless she has been persuaded to sign a prenuptial agreement, the wife of a rich man who makes his fortune during the marriage is, on the face of it, still entitled to half of the matrimonial assets even if it is a short childless marriage and she has never worked a single day.

So, the big question. On every test of fairness, assuming a measure of common sense, which system is preferable?

I certainly know which I prefer.

When I consider the appalling consequences of the Government remodelling our law to follow Scots or other European law, I wonder if 2011 hasn’t all the hallmarks of a return to the miserable times of the past. Codification and strict division of matrimonial assets? Reasonable needs rejected? No maintenance for those who need it? Women and children relegated to penury? People under pressure to remain married without the financial means to leave, unless the wealthier partner decides to trade the partner for a newer model? A return to the Victorian Age?

The Oxford Union

As it happens I may glean a further clue as to reformers’ intentions in February, when I address the Oxford Union Society in a debate titled, “This House believes that the institution of marriage is outdated.”

I have been asked to speak in favour of the motion, and I am looking forward to debating with the other speakers. I will keep you posted!

In the meantime, despite what may be in store – and heaven help us if it’s going to be that bad – my best wishes for a happy and healthy New Year.

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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Comments(2)

  1. ObiterJ says:

    I was very interested to read this post and also to read the House of Lords debate to which you helpfully linked.

    To me, it was notable that in the House of Lords only about 7 members actually spoke on this issue and they were all, broadly speaking, ad idem on the point that everything about the English law system was unsatisfactory and that everything elsewhere was just fine. It is a poor debate which lacks the alternative viewpoint.

    Baroness Deech said that the present law was “unfair, uncertain and expensive” and urged government to act “for the sake of children and costs.” Baroness Meacher asserted that Europe and Scotland have divorce laws fit for the 21st century but gave no detail on how those laws actually operate. For Meacher, only property acquired during marriage should be divided and inherited wealth should not be included and she asserted that both men and women have earning power and that should be an essential assumption behind these laws. [One wonders about that. They may have earning potential but it is not necessarily anywhere like equal ?]. The Bishop of Blackburn was, as one might expect, stronger on the idea of devoting resources to keeping problematic marriages going but, at least to me, seemed vague as to what really ought to happen when they hit the buffers. Baroness Murphy saw mediation as compulsory and the use of an adversarial system in family courts as “bonkers.” [Hardly an entirely felicitous choice of word !]. In any event, she and he “ex” were able to “sort it in the pub.” Lord Davies (who had actually tried previously to get pre-nups enfoceable) told us about communaute de biens and separation de biens a l’ Ecossaise. Really threw some light on the subject there ! Lord Bach – who had justice responsibilities in the Labour government – was convinced of the need for reform given that over 136,000 people divorced in 2008. According to him (and he may be right) few can say that the system works well and he clearly seemed biased to a 50:50 system but maybe with some exceptions as in New Zealand. Lord McNally (who now has justice responsibilties) said that there was no difference in approach between the previous government and the coalition but, quite clearly, he was fence-sitting to some extent as he awaits the Norgrove Review.

    Your own post above shows that, in reality, the Scottish system does not necessarily produce the entirely happy outcomes which some of these speakers seem to think is the case. Nevretheless, one has to ask whether the English system does either. The reality may well be that there is never going to be a perfect system and you end up by favouring simplicity (as far as this can be “simple”) or flexibility so that everything can be considered but that results in expense.

    We all await this Norgrove Review with interest. In my opinion, the Ministry of Justice did not entirely make it easy to contribute to the review. One could go on a website and fill in a questionnaire but it did not seem easy to submit alternative ideas and one suspects that few did. We shall see. My biggest concern would be what is proposed for disputes relating to the children. I am not in any way opposed to mediation but it will never end up being the answer to every case. Regrettably, some cases will have to be adjudicated and it is here that lack of legal aid will hit hard. One also awaits with interest whether the review will recommend the abolition of family proceedings courts and their replacement by some kind of tribunal. Somehow I suspect it will. Ultimately, they are looking for “inexpensive” answers and one fears that the lives of many children will be blighted by such short-termism.

  2. JamesB says:

    The thing is, I have seen so much excluded from Form E’s (like access to the family trust fund and money and inheritance) upon divorce as to make the fairness argument impossible for a lot of situations.

    I am currently under a lot of pressure to (re)marry. Perhaps I might do so and the pre nup will say something like the divorce if there is one (hopefully there won’t be) would be conducted under Scottish law. So, in summary, unfortunately as I like the cut of your jib, I do disagree with you on every point. Best wishes to you though.

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