Divorce law legislation in the UK is, as has been widely acknowledged in the last few years, not fit for purpose. Governed primarily by the Matrimonial Causes Act 1973, this area of the law has drawn criticism from practitioners across the family law space. Justice Minister, Lord Christopher Bellamy KC publicly approached the UK Law Commission to propose a review of this legislation.
Many of the issues being highlighted with existing legislation overlap heavily with one another – let’s take a look at some of them here.
Divorces are incredibly expensive. If settled outside of court (as most divorces admittedly are), the process is relatively cheap and straightforward. However, the average divorce which has to go to court for adjudication will require the input of a solicitor, which typically costs anywhere between £10,000 and £15,000. If no agreement is still reached and it goes to a judge in a final court hearing, you could be looking at a bill of up to £30,000. The most high-profile divorces in the UK associated with the richest couples can amass legal bills in the millions of pounds.
The main reason for such expense is the fact that existing legislation (e.g. that of the Matrimonial Causes Act 1973) is relatively vague, and thus court cases tend to get very complex – meaning very long – meaning very costly. For example, prenuptial agreements (also known colloquially as ‘prenups’) are not adequately addressed in existing legislation at all, and this often leads to great uncertainty for those involved in the divorce.
The vagueness of the law doesn’t just lead to increased costs, however – it also ushers in a great deal of subjectivity in judge interpretations of existing legislation. It is for this reason that most family lawyers must rely heavily on case law when making predictions about the fate of a case. Subjectivity in the law may not always be considered a bad thing (it needs to flexible at times to deal with the range of cases that will occur in everyday life), but in the case of current divorce law in the UK, there is a serious problem of unfairness in how much is left down to a judge’s personal interpretation. The UK has no strict criteria or test to work out how much spouses are owed after a divorce – something which many other countries (especially in other European nations) have already possessed for some time.
If the state of divorce law is governed so heavily by case law, then we also need to be mindful of who the case law was based on. Most working-class divorces are not worth huge amounts of money, and will not reach the top levels of litigation involving judges. The ones that do reach this level (and thus the ones who the law is essentially shaped by) tend to be the divorces of the richest individuals in the country. Case law (in this case, the most useful predictor of a divorce’s fate) has therefore been moulded by a minority experience, which will be unfairly applied to the unique experiences of those with less. To give just one example, Crowther v Crowther & Ors saw one wealthy couple run up a bill of over £2 million while debating who owned what out of a fleet of boats.
A specific issue raised within current UK divorce legislation relates to the financial aspects of payments made after the case has been settled – otherwise known as ‘maintenance’. The UK has historically been unusually biased in this space, asking one of the pair to provide regular payments to the other for life (known as ‘joint-lives maintenance’). In most other comparable countries, these payments are limited to a certain period of time (e.g. for just a few years), encouraging a level of personal independence which the UK lacks.
As can be obviously gathered by its name, the Matrimonial Causes Act 1973 stems from a particular time period. As with a great deal of legislation, this can cause problems with interpretations as history moves on. This particular piece of legislation, it has often been suggested, fails to account for many of the modern UK’s residents. For instance, the wording and model judges apply to divorces is essentially based on a very specific family – the nuclear family with the father as the sole breadwinner (and the mother as a stay-at-home housewife). This is, of course, not the case for a large number of families in the UK nowadays, but legislation has failed to keep up to speed.
Same-sex marriages and their often-unique financial circumstances, are another area where the law has not been adequately updated to maintain the needs of the population. As a result of such outdated perspectives, the issue of subjectivity (and thus costs) once again rears its ugly head.
Critics of the current legislation such as Lord Christopher Bellamy (Parliamentary Under Secretary of State, responsible for ‘family justice and marriage and divorce’) have clearly identified a number of problems with UK divorce law (particularly the Matrimonial Causes Act 1973) as it stands. In short, it is vague (and thus subjective), leads to unreasonably high legal fees, isn’t suited to the modern social climate, rests on case law formed almost exclusively within cases far removed from the average divorce, and doesn’t address key issues such as maintenance and prenuptial agreements. So what are the proposed changes?
All of these changes, if enacted successfully, will lead to far lower (and thus more affordable) legal fees, plus far less uncertainty about what the outcome of a court ruling will be. Tightening up such wording will also have the knock-on effect of reducing dependence on case law (which, as already outlined, is problematic in numerous ways).
The Law Society Gazette has suggested that the 50 year old piece of legislation will be reformed, but that the process may take up to two years to complete in full. While such a long process is not ideal, it certainly looks as though these reforms, which have been widely called for across the board by experts across the family law field, will come to fruition eventually. The consultation continues for now.
By Declan Peters
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