On Friday, 27 June 2014, the UK Parliament gets its first opportunity for very many years to debate what should be fair financial outcomes on divorce. Our present statute law is over 40 years old. Yet demographics and expectations in society have changed hugely over those decades.
We need new statute law. We have this opportunity for Parliamentary debate now. We need a comprehensive law which is clear, certain, predictable and understandable by members of the public to help them sort out their financial settlements themselves with minimal involvement from lawyers and the courts.
Baroness Deech is promoting the Divorce (Financial Provision) Bill 2014 in the House of Lords. It deserves and warrants full support. There will be differences about certain elements of the detail but the fundamental is to encourage a debate to lead to new legislation.
England has almost entirely judge made law in this area. Of necessity judges have filled the statute law vacuum. In many ways it has been invigorating, allowing the law to remain flexible, changing with mores and social expectations and allowing discretionary and tailor-made justice. But this virtue of largely unfettered discretion to create fair individualised outcomes inevitably leads to lack of certainty, clarity and predictability. In turn this encourages litigation and discourages settlements. It makes resolution through mediation and other non-court methods much harder.
Our present law in this area is found in multiple and multi-layered complex higher court judgements with various nuances of differences and sometimes fact specific situations. It is not found in any one place, reliably and authoritatively stated and in comprehensive plain English.
Legal costs are very high. Very many now act in person which takes up time in the family courts. It is doubtful the family justice system can cope with the amount of litigation arising from our uncertain law. The Law Commission in February 2014 gave helpful recommendations on marital agreements but disappointingly declined to make statutory recommendations on needs and non-marital property. Parliament now needs to intervene
Some family lawyers will disagree with certain elements of the draft legislation of Baroness Deech such as maximum term spousal maintenance, provision out of non-marital assets and needs as a prerequisite for binding marital. This doesn’t matter at this stage. We can debate specific content after Friday. The draft Bill is our chance to debate the need for reform. It is not the final word.
So we need, and now have, the opportunity to debate in Parliament the reform of the law of financial settlements on divorce. I urge all family lawyers and others to give their support for this debate to reform our law.
In conclusion I would suggest we need debate leading to reform to create a law ïƒ˜
- Led by the democratic process, through Parliament, rather than judge-made however much that has benefited society over the past decades ïƒ˜
- To provide clear guidance and predictability on what should be considered a fair outcome ïƒ˜
- Accessible in one location and understandable by the public ïƒ˜
- Which still allows some fettered discretion for the family courts in order to produce a fair outcome in particularly difficult or fact distinctive cases ïƒ˜
- Assists couples to settle financial matters on dispute with minimum involvement of the courts (once there is reliable disclosure) ïƒ˜
- Encourages resolution through mediation and other non-court methods ïƒ˜
- Respects private autonomy and encourages the making of agreements, possibly subject to providing for needs ïƒ˜
- Respects non-marital property including inheritances and premarital, but subject to providing for needs and other defined factors ïƒ˜
- Respects and endorses sacrifices and commitments made to the marriage relationship ïƒ˜
- Discourages large settlements after short childless relationships ïƒ˜
- Encourages efforts post-divorce towards independence and self-sufficiency, the clean break ïƒ˜
- Takes account of the best interests of children ïƒ˜
- Is in plain English as far as possible