When introducing the Divorce (Financial Provision) Bill into the House of Lords last month, Baroness Deech was keen to point out that the Matrimonial Causes Act 1973, which she wished to change, had not been debated by parliament for over 40 years and that society had moved on in that time. She complained that judges have been scrambling to keep up with society.
However, she seeks to introduce a process based on the Scottish system which (ironically as we seek to leave the EU) is much more akin to the European system of family law. This excludes from division on divorce, pre-owned assets or inheritances or gifts made during the marriage and applies an inflexible equal division of matrimonial property. This is the default position in many EU countries. Deech, however, proposes to bring in safeguards, akin to what we have at present and permit an unequal share if there are children under 21 or assets have been destroyed/dissipated. In addition, conduct will be taken into account if it would be manifestly inequitable to disregard (as at present).
We currently have a presumption that a spouse should become financially independent as soon as possible. Baroness Deech proposes spousal maintenance would be limited to five years unless it would cause serious financial hardship.
By including safeguards to reflect matrimonial advantage and/or disadvantage, which is largely the prejudice done to a person’s earning capacity by caring for children, is she not back where we are already, by giving flexibility if the circumstances demand?
She intends to give recognition to pre- and post-nuptial agreements, if done 21 days in advance of the marriage, with financial disclosure and independent legal advice – which is where judges have already got to.
Where there is a short, childless marriage where both people work, the court already treats the matrimonial home as matrimonial property and available for division with a 50/50 starting point and limited maintenance or an immediate clean break. So there will be little change. By making the emphasis a 50/50 split on matrimonial property with limited maintenance unless there is matrimonial disadvantage, is she not pushing the burden of proving the need on those least able to – being the full-time carers of children? Will this not cause more stress to those who are already most vulnerable?
Should we not be celebrating the ability of our judges to have developed our law to reflect the changes in society, in particular the increasing number of women in the workplace, and to provide flexibility if the circumstances demand? In addition, with Brexit on the horizon parliamentary time would be better spent dealing with the legislation which we will need to replace the conventions we will be coming out of.
Frances Sieber, family partner, Spring Law, London WC2