Divorce laws should be reformed to provide a default regime for the division of assets when relationships break down, the chief of the family bar has suggested.
Nicholas Cusworth QC (pictured), chair of the Family Law Bar Association, told the Gazette that greater certainty over the division of property and assets would cut the number of couples going to court.
He favoured a regime of ‘community of marital property’, under which all assets, except inheritances, gained during a marriage are presumed to be jointly owned and are divided upon divorce.
At present, he said, ‘divorce law works in favour of the lawyers’ because the lack of rules encourages parties to go to court.
If parties do not want to be bound by the rules, Cusworth said, they should make a prenuptial agreement. ‘With the high divorce rate, pre-nups should be endemic unless people are happy to pay divorce lawyers,’ he said.
Cusworth also favoured a move towards a more inquisitorial system for resolving family law disputes, branding the current adversarial system ‘not helpful for families’.
His ideas were prompted by pressures on the family justice system, which he said are ‘bringing [the system] to its knees’. Over the next two years the combination of legal aid cuts, increased numbers of litigants in person, family court modernisation and government targets will result in a ‘perfect storm’.
Noting the widening division that the legal aid cuts will create, Cusworth said: ‘At one end of the scale there will be people paying lawyers large sums of money; and at the other end there will be people unrepresented. It’s a recipe for absolute disaster.’