Lawyers’ fees in divorce cases have hit the news again, thanks to Gary Lineker’s recent claims. Surely, he said, there was a better way; a fixed formula perhaps, or use of regularised pre-nups?
When parties marry, it is a time of sometimes lavish celebration for them and their nearest and dearest. It is also usually at a time when the parties are setting out on life’s journey and when their incomes and assets are modest when compared with their aspirations. The fortunate few, or those embarking on second marriages, may be wealthy and seek to protect that wealth through a pre-nup, but for the majority that is not the case, so how can the future division of assets or incomes on divorce be controlled by a pre-nup when the extent of future wealth cannot be known?
I would agree that in an ideal world, on divorce or separation assets and incomes should be capable of division without too much fuss. However, that is to ignore basic human emotions and the reason(s) for the break-up of the marriage in the first place.
At the end of a marriage trust is invariably lost between the parties and that loss of trust can extend to the disclosure of finances. In many marriages, a single party controls the family finances and has sole knowledge of the assets. This is particularly the case when there is a business involved and this will usually create a situation in which one party has the financial high ground. The result can be one party suspicious that one other is being economical with the truth
The legal process in the UK is adversarial and not inquisitorial and that perhaps provides a greater opportunity for those who wish to conceal assets. Fairness (the whole aim of the legal system) is impossible to achieve until the Court has full knowledge of the parties’ assets and incomes.
Mediation is being championed as a non-confrontational way of resolving finances on separation but there are many cases that are just not suitable, because one party is determined to conceal or undervalue assets and income to gain an unfair settlement.
So, can a settlement be driven by a dedicated formula for division? Well, there is already a formula: the starting point of equality, 50/50, yet that formula even when agreed between the parties will still not provide certainty. Also, how does the formula determine what assets go to which party, and why?
The valuation of assets is highly subjective but is often material to the achievement of fairness.
As a mathematician myself, with well over ten years’ working in the divorce arena, I am sceptical that any single formula covering valuations and distribution could even begin to come close to being acceptable for divorce purposes.
There are those cases that cost huge sums in fees, but in my experience those are cases that either involve complex assets with high values or cases in which one party to the proceedings is hell-bent on failing to disclose and seeks to artificially reduce or manipulate the values of assets and/ or the extent of their income.
Fortunately, and contrary to what Mr Lineker appears to think, those cases are in the minority and the vast bulk of cases are dealt with promptly and with pragmatism by both the parties and their lawyers.
When the parties in a divorce are trusting, open and are pragmatic in their negotiations, they will always achieve a prompt settlement. By contrast, it will always take far longer to settle those cases where one party chooses to be confrontational and engineer an unfair settlement in their favour.