This morning I joined presenter Jane Garvey on BBC Radio 4’s Woman’s Hour to discuss the implications of Mr Justice Mostyn’s now infamous comments during a recent divorce hearing.
To be fair to him, he was dealing with a very tricky set of assets, including family trusts and companies. It was not your usual set of circumstances and I think, given what he was working with, the overall outcome was fair.
I’m sure you’ve read the comments which caught the media’s attention by now. If not, Mr Justice Mostyn called post-divorce relationships a “fly in the ointment” when it came to assessing needs. This has been interpreted by the national media as a judge telling women to avoid relationships until their divorce is finalised.
As an experienced divorce lawyer, I have found this reaction somewhat perplexing. This issue is not new. It comes up quite often in divorce courts and it has always been a tricky area. The legislation which sets out how a judge is to determine finances was first enacted in 1973. At this time, it was very uncommon for women to end up cohabiting after a separation. Obviously, times have changed. The number of cohabiting couples is dramatically increasing, so it will naturally be an issue that judges have to deal with more and more. But maintenance post-divorce is usually payable.
In AB v CD, one problem was that the wife did not disclose the relationship to the court. It was uncovered by her husband’s legal team. Going into a divorce you need to give a full, frank and honest disclosure about your circumstances. If you don’t, you risk costing yourself money.
Even with full disclosure, spousal maintenance can still be significantly affected by the possibility that one of the parties could soon be cohabiting with another partner. This is because it can alter the judge’s assessment on what a person’s needs will be in the future. With that in mind, wives or husbands who will be dependent on their former spouse for financial assistance following the divorce should tread very carefully.
I have written about a similar case before. In Grey v Grey, the husband resented having to pay spousal maintenance to his ex-wife who had begun cohabiting with another man. The large number of comments I received on that post shows just how divisive this subject really is. When the case came before the Court of Appeal it received very full consideration and my post on that particular judgement will help potential cohabitants decide whether or not it is worth it. The court made it clear that if cohabitation was proved (and they approved the definition in a previous case called Kimber v Kimber) spousal maintenance would normally no longer be payable.
So whilst what Mr Justice Mostyn said during his judgment may not change things in a significant way, it has shone a light on these issues. That can only help people in the future.
To listen to my full interview on Woman’s Hour, it is available on the iPlayer here. My segment starts at 32:00.
What this judgement in my view shins a light on, is the unprincipled and chaotic mess that asset division is in this jurisdiction. The need argument is (obviously) not relevant to asset division, only child and spousal payments. New relationships should definitely only impact the latter, but spousal payments should in the majority of cases be transitional support and strictly term limited, so even here new partners ought to be of relative little importance.
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What is needed is a proper legally binding regime for matrimonial asset division which allow the parties to know what they commit to when they marry and know that this commitment will be upheld on divorce. Such a regime will remove a massive burden from the courts allowing judges to focus on all the areas of family law that genuinely requires discretion (which asset division does not). It would resolve the legal aid issue for financial proceedings. It would avoid families hard earned wealth being wasted needlessly in legal proceedings which only serve to transfer chunks of the common pot to lawyers. Most importantly, it would replace the legal vacuum at the heart of English family law with certainty and, in doing so, severely limit the scope for creating conflicts of interests between mums and dads. By removing a huge source of parental acrimony and conflict, such a regime would be the single biggest step forward for child wellbeing in this country.
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A “win win” for parents and children if ever there was one. The only loser would be the family law industry which would see its revenue stream severely curtailed. Sadly, for this reason, the current mess will be allowed to continue. Parliament has neither the will or the courage to act against these deeply entrenched vested interests.
“What is needed is a proper legally binding regime for matrimonial asset division which allow the parties to know what they commit to when they marry and know that this commitment will be upheld on divorce. ”
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This is EXACTLY what should happen Nordic, but I don’t think it will for 2 reasons:
(1) As you say, the Family Law Industry would lose a massive amount of money.
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(2) If Joe & Janet Blow (especially Joe at the moment to be frank) really knew beforehand what is likely to happen when they get divorced the declining marriage rate would accelerate at breakneck speed – most of them live in ignorance of how bad it really is until it happens to them. This marriage rate decline certainly does not help the government’s aims so there is little incentive for them to do the right thing.