Does UK law ensure a fair division of assets in divorce?
Crossbench peer Baroness Deech, who taught and lectured on family law for more than 20 years at Oxford University, has accused judges of developing the law in a ‘paternalistic and unprincipled fashion’.
Lady Deech has said: ‘The notion that a wife should get half of the joint assets of a couple after even a short, childless marriage has crept up on us without any parliamentary legislation to this effect.
‘It is no wonder that England is the divorce capital of Europe and out of step with other European countries.’
Lawyers at family law firm Woolley & Co have discussed the issues raised by Baroness Deech’s comments and have some perhaps controversial and contrary views to the esteemed peer.
Woolley & Co senior Partner Andrew Woolley says: ‘The view being given is that the wife automatically gets half of marital assets. That clearly is not true – you only have to look at the McCartney case for evidence of that.
‘I don’t see it as a gender issue, more an issue of the one with the most money sharing it with the one with the least. That is normally - but not always - the man. That is a consequence of social history.
‘The needs of the person with the genuine lower earning capacity have to be considered as a relevant factor by the courts. That could just as easily be the man as the woman although traditionally it has tended to be the female as women tend to take on the role of child carers and often leave work to take on a full time home making role.
‘Some of the comments reported seem to suggest discretion should be removed from the courts to make decisions in these cases. It must be right to provide discretion, a one answer fits all approach (as in the CSA) would result in considerably more inequality than there is at present.’
Judith Buckland, a family solicitor based in Cornwall, adds her view: ‘I think the big money cases muddy the waters on this issue and they are of course what everyone knows about and homes in on without looking at the bigger picture.
‘I’ve noticed from the comments on the press coverage that the general feeling is that the wife will always get the home but simply isn’t the true picture. The home is likely to be maintained for the benefit of the children and (because the wife is usually the primary carer) the consequence is often that the wife will be able to remain in the house in the short to medium term. The husband will get his share – he just may have to wait for it. Is the inference from Baroness Deech that men should have their rights put before their children’s? I don’t think many would go that far.’
Greater clarity by lawyers would certainly be welcomed but so much is determined by people rather than process. Family lawyer Karen Agnew-Griffith explains, ‘A family lawyer, when asked “What can I expect to receive as a financial settlement?” can only reply “it depends.” It depends on the judge on the day. It depends on how bitter and entrenched the husband and wife are. It depends on the quality of the lawyer.
‘The current situation is so vague and capable of being interpreted in so many different ways that we are all just working through an educated guessing game with no idea what the end result will be in many cases and that is when years of legal experience is so important.’
‘A marriage contract should be just that. The budget of thousands often spent on dresses and functions prior to a couple tying the knot should include a sum of money set aside to get the contract right.
‘If couples are concerned about leaving decisions to the Courts then a pre-marriage contract to decide who gets what if it all goes wrong can provide real protection. This way each party will know what the future holds either way and make decisions including giving up work for a time or not, raising children or not, based on what’s been agreed.’
Woolley & Co Solicitors www.family-lawfirm.co.uk/