Divorce: end to meal ticket for life settlements?
The Law Commission’s paper reviewing spousal maintenance and its duration following a divorce or dissolution of a civil partnership gives a scathing critique of current law, but could its proposals result in less work for lawyers, especially from wealthy overseas clients?
The commission calls for ‘fundamental and principled’ reform of current law, which it lambasts as ‘incomplete and uninformative’, giving no guidance to judges on what they should be trying to achieve and no guidance to parties looking to make their own arrangements.
It suggests statutory provisions should be introduced to give judges clear objectives, setting out what should be paid, the reasons for the payment and for how long the payment should last. It also mooted the idea of a formula to calculate the amount and length of financial support.
Apart from the uncertainty created by the present situation, the commission appears also to be critical of the generosity of the system in England and Wales, which provides high levels of maintenance sometimes for life, and which it says may foster dependence.
Suzanne Todd, a partner in the family law team at City firm Withers LLP, says that lawyers and clients would welcome greater certainty in this area of law.
Limiting the duration of maintenance payments, she said would also be welcomed by many divorced people who see the effect of the current regime as a millstone which provides a ‘meal ticket for life’ for their former partner.
Though if the Law Commission’s proposals were translated into law that would bring England and Wales into line with other jurisdictions and ‘perhaps detract from one of the main reasons that London is seen as being the divorce capital of the world'.
So for some lawyers, the clarity and greater stringency offered by the commission may be slightly double-edged.
Catherine Baksi is a reporter on the Gazette
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Comments
Spousal maintenance
Rarely does spousal maintence feature in mid to lower end matrimonial financial cases . Most of mine are clean break settlements.Where ,however , it is an issue it is invariably very contentious & a lot of time / costs are spent on it & it often prevents an early , relatively cost effective settlement by consent. When the CSA was first set up their formula was / is inflexible but I now find it a useful guidline & most "paying parents" are resigned to it & child mtce rarely features in the negotiations except perhaps as to when it comes to an end .Greater clarity of spousal maitenance will enable us to focus on the assets but the recipient of sm may have a smaller %age of the assets because most of my clients currently concede a larger %age to the other party if there is a clean break.
Let's hope for some sensible guidelines
In principle the idea of clearer guidance for the division of assets following divorce or civil partnership dissolution has to be a good thing. However the danger is that, following recent government trends, it won’t just be in general guidance but restrictive guidelines. The beauty of the English court system is that it uses the law to try to reach a fair and proper settlement on each individual case. Following on the simply wrong proposals of sharing children’s time between parents equally [as if they are mere chattels], let’s hope the government takes the opportunity for some sensible guidelines and not impose some unrealistic predetermined division of assets.
A judge is not the best person to make decisons about future...
..finances in divorce cases: the couple themselves are, and always will be. As a collaborative lawyer or a mediator few of my clients need advice about what "the law" would order, because they have been taken through principled negotiation processes with appropriate advice and information at the appropriate times. It is rare for them not to come up with a mutual proposal that satisfies them both.
I understand the call for more guidance but, frankly, if more family lawyers did their jobs properly and treated their clients, as they would a close family member, by focusing on getting better outcomes for the family unit, and less on filling their pockets with client money, the courts would only be troubled by those that need protection, those that need clarification on a point of law, and the very small minority who are implacably hostile. Then the Law Commission wouldn't need to write such papers.
Lawyers filling their pockets
As a mediator/collaborative lawyer Mr Stephen Anderson can perhaps be forgiven for thinking that 'ordinary' family lawyers are somehow less honourably motivated than is he but his criticism here is grossly unfair. I ran my own firm for many years and latterly I trained as and worked as a mediator. Since I sold my firm in 2002 I have been doing short term locums, covering the whole country. I have worked in over 30 firms and it is not my experience that family lawyers put their own fee income ahead of the interests of their clients, nor are the majority less than excellent in their desire to seek a fair result, albeit with the interests of their own client in the forefront.
Seeing professional work through the particular prism of collaborative law or mediation can result in a practitioner's perception being distorted. The clients seen by a mediator or collaborative lawyer will, by and large arrive in a more or less co-operative frame of mind than is the case with the clients of 'ordinary' family lawyers. Is it possible that as a result his or her perception of the average divorcing couple is skewed until it becomes just a little little too rosy?
I actually like the 1973 Act.
I actually like the 1973 Act. Whilst providing guidelines it also allows flexibility. The fact that it has not needed to be changed before now suggests to me just how flexible it is. Those of us who have dealt with lots of cases over the years get a good feel for what the likely outcome is in the majority of cases. As a collaborative lawyer I now have other options available to help clients. Every case must be determined to take into account its unique features. That includes the personality of the clients themselves.
What irks me is the suggestion that all couples and their solicitors fight over everything. What about concentrating on the many success stories we all have, reached via negotiation. As only about 15% of cases go to court that means 85% who do not need to.